Tuesday, February 25, 2014

Cohabitant Can Consent to Search Over Objection of Absent Occupant

The Supreme Court ruled today that a cohabitant of an apartment can validly consent to a search of the apartment, even over the objections of an absent co-occupant.  The ruling in Fernandez v. California means that police can search an apartment (or home), without a warrant, based on the permission of one occupant, even when another occupant objects, so long as the other occupant isn't around.

The case arose when police knocked on an apartment door after hearing screams come from the apartment.  Roxanne Rojas answered; she appeared to be battered and bleeding.  Police asked Rojas to step out of the apartment so that they could conduct a protective sweep.  Fernandez came to the door and objected.

Police suspected that Fernandez assaulted Rojas and arrested him.  They then identified him as the perpetrator in an earlier robbery and took him to the station.

An officer later returned to the apartment, obtained oral permission from Rojas to search it, searched it, and found items linking Fernandez to the robbery. 

Fernandez moved to suppress the items, arguing that he did not give consent to search.  He relied on Georgia v. Randolph (2006), which held that the consent of one occupant is insufficient to allow a warrantless search if another occupant is present and objects to the search.

The Court declined to extend Randolph to this case, where Fernandez was absent.  Justice Alito wrote for the majority:

Our opinion in Randolph took great pains to emphasize that its holding was limited to situations in which the objecting occupant is physically present.  We therefore refuse to extend Randolph to the very different situation in this case, where consent was provided by an abused woman well after her male partner had been removed from the apartment they shared.

Justices Scalia and Thomas concurred, both taking issue with the Randolph rule itself, and Justice Scalia trying to shoehorn in a property law analysis.

Justice Ginsburg, writing for herself and Justices Sotomayor and Kagan, dissented:

Instead of adhering to the warrant requirement, today's decision tells the police that they may dodge it, nevermind ample time to secure the approval of a neutral magistrate.  Suppressing the warrant requirement, the Court shrinks to petite size our holding in [Randolph] that "a physically present inhabitant's express refusal of consent to a police search [of his home] is dispositive as to him, regardless of the consent of a fellow occupant."

February 25, 2014 in Cases and Case Materials, Fourth Amendment, News | Permalink | Comments (0) | TrackBack (0)

Friday, February 21, 2014

Seventh Circuit Pulls Back Curtain on Notre Dame's Challenge to Contraception Mandate

In an opinion dripping with contempt for Notre Dame's litigation strategies and legal theories, the Seventh Circuit today affirmed the denial of a preliminary injunction for the university in its challenge against the contraception mandate in Obamacare.  The ruling in Notre Dame v. Sebelius sends the case back to the district court for full proceedings and denies Notre Dame interim relief.

It also pulls back the curtain on Notre Dame's claim, revealing just how far-fetched it is.

The issue in this case--whether the government's accommodation for religious nonprofits to exempt themselves from the contraception mandate itself violates religious freedom--is the same issue in Little Sisters, the case in which the Supreme Court recently allowed a religious nonprofit to sidestep the mandate and the accommodation pending its appeal on the merits to the Tenth Circuit.

Recall that the government crafted an accommodation to the Obamacare requirement that employers provide health-insurance options that include contraception for females.  The accommodation allowed religious nonprofits (like Little Sisters and Notre Dame) to shift the mandate to their insurers or third-party administrators (which then would have to provide contraception options to the insured employees and students free of charge) by completing a short form indicating that they have a religious objection to contraception. 

Notre Dame, Little Sisters, and other religious nonprofits sued, arguing that the accommodation itself violated the Religious Freedom Restoration Act and the First Amendment.

The Seventh Circuit's ruling addresses only whether Notre Dame qualifies for a preliminary injunction from the accommodation (and mandate) while its case proceeds to the merits.  But in answering that question, the court had to determine whether Notre Dame is likely to succeed on the merits.  And the court said that it wasn't.

Right out of the gate, the court practically mocked the university for asking for something that the court couldn't deliver--because of the university's litigation tactics.  In particular, the court noted that Notre Dame filed its case late, close to the mandate's (and the accommodation's) implementation date, so that it was forced to either file the form for the accommodation or incur fines under the Affordable Care Act.  Notre Dame filed the form, and its administrator notified Notre Dame employees that contraception was available to them.  With the cat out of the bag, the court wondered what relief does Notre Dame want?  Revoking the form would do nothing, because federal law requires the administrator (not Notre Dame) to provide contraception.  But the court can't order the administrator to stop providing contraception, because Notre Dame neglected to join the administrator in the case.

As to the merits, the court was equally dismissive.  In particular, the court rejected Notre Dame's "trigger" theory--that by signing the accommodation form, it triggers, or enables, contraception coverage by a third party, against its religious beliefs.  The court dismissed this out of hand:

The key word is "enable," and it's inaccurate.  Federal law, not the religious organization's signing and mailing the form, requires health-care insurers, along with third-party administrators or self-insured health plans, to cover contraceptive services.  By refusing to fill out the form Notre Dame would subject itself to penalties, but [its insurance company and administrator] would still be required by federal law to provide the services to the university's students and employees unless and until their contractual relations with Notre Dame terminated.

The court wrote further,

The novelty of Notre Dame's claim--not for the exemption, which it has, but for the right to have it without having to ask for it--deserves emphasis. . . .  What makes this case and others like it involving the contraception exemption paradoxical and virtually unprecedented is that the beneficiaries of the religious exemption are claiming that the exemption process itself imposes a substantial burden on their religious faiths. . . . 

The process of claiming one's exemption from the duty to provide contraceptive coverage is the opposite of cumbersome.  It amounts to signing one's name and mailing the signed form to two addresses.  Notre Dame may consider the process a substantial burden, but substantiality--like compelling government interest--is for the court to decide.  Otherwise there would have been no need for Congress in the Religious Freedom Restoration Act to prefix "substantial" to "burden."

The court also held that Notre Dame was not likely to succeed on its Establishment Clause claim, that the Act treats religions differently than religious organizations for the purpose of exemption from the contraception mandate. 

The court did find potential merit in Notre Dame's claim that a regulation that forbids a religious nonprofit from interfering with a third-party administrator's arrangements to provide for contraceptive services violates free speech.  But the court said that the parties "failed to place the issue in focus," and so didn't rule on it.

Judge Flaum dissented, arguing that the court should have granted Notre Dame's motion to dismiss the appeal after three Notre Dame students joined the appeal to argue that Notre Dame's religious conviction was not sincere, and that Notre Dame showed a likelihood of success on the merits.

February 21, 2014 in Cases and Case Materials, Establishment Clause, News, Opinion Analysis, Religion | Permalink | Comments (0) | TrackBack (0)

Thursday, February 20, 2014

Third Circuit on Pennsylvania's Funeral Director Law: Mostly Constitutional

Largely reversing a district judge's opinion that had found various provisions of Pennyslvania's Funeral Director Law unconstitutional on various grounds, the Third Circuit opinion in Heffner v. Murphy upholds the law except for its restriction on the use of trade names as violative of the First Amendment.

One key to the panel's decision is that it surmised that the district judge's conclusions regarding the constitutionality of Pennsylvania's Funeral Director Law (FDL), enacted in 1952, "stem from a view that certain provisions of the FDL are antiquated in light of how funeral homes now operate."  But, the Third Circuit stated, that is not a "constitutional flaw."

Anna_Ancher_-_A_Funeral_-_Google_Art_Project
"A Funeral" by Anna Archer via

The challenged statutory provisions included ones that:

(1) permit warrantless inspections of funeral establishments by the Board;
(2) limit the number of establishments in which a funeral director may possess an ownership interest;
(3) restrict the capacity of unlicensed individuals and certain entities to hold ownership interests in a funeral establishment;
(4) restrict the number of funeral establishments in which a funeral director may practice his or her profession;
(5) require every funeral establishment to have a licensed full-time supervisor;
(6) require funeral establishments to have a “preparation room”;
(7) prohibit the service of food in a funeral establishment;
(8) prohibit the use of trade names by funeral homes;
(9) govern the trusting of monies advanced pursuant to pre-need contracts for merchandise; and
(10) prohibit the payment of commissions to agents or employees.

The constitutional provisions invoked - - - and found valid by the district judge - - - included the Fourth Amendment, the "dormant" commerce clause, substantive due process, the contract clause, and the First Amendment, with some provisions argued as violating more than one constitutional requirement.

In affirming the district judge's finding that the trade names prohibition violated the First Amendment, the Third Circuit applied the established four part test from Central Hudson Gas & Electric Corp. v. Public Service Commission regarding commercial speech and found:

The restrictions on commercial speech here are so flawed that they cannot withstand First Amendment scrutiny. Indeed, the District Court correctly identified the pivotal problem concerning the FDL’s proscription at Central Hudson’s third step: by allowing funeral homes to operate under predecessors’ names, the State remains exposed to many of the same threats that it purports to remedy through its ban on the use of trade names.  A funeral director operating a home that has been established in the community, and known under his or her predecessor’s name, does not rely on his or her own personal reputation to attract business; rather, the predecessor’s name and reputation is determinative. Nor does a funeral home operating under a former owner’s name provide transparency or insight into changes in staffing that the Board insists is the legitimate interest that the State’s regulation seeks to further.

 [citation omitted]

ConLawProfs looking for a good review or even a possible exam question, might well take a look at the case.  It also seems that the Pennsylvania legislature might well take a look at its statutory scheme, which though largely constitutional, does seem outdated.

February 20, 2014 in Cases and Case Materials, Courts and Judging, Criminal Procedure, Dormant Commerce Clause, Due Process (Substantive), First Amendment, Fourteenth Amendment, Fourth Amendment, Interpretation, Opinion Analysis, Speech, Teaching Tips | Permalink | Comments (0) | TrackBack (0)

Sunday, February 16, 2014

Ninth Circuit Strikes "Good Cause" Requirement for Concealed Carry

A divided three-judge panel of the Ninth Circuit ruled last week in Peruta v. County of San Diego that the city's "good cause" requirement for a concealed carry permit, enacted under California's general ban on concealed carry, violated the Second Amendment.

The ruling deepens a split in the circuits on concealed carry.  As the court wrote, "Indeed, we are the fifth circuit court to opine expressly on the issue, joining an existent circuit split. . . .  Our reading of the Second Amendment is akin to the Seventh Circuit's interpretation in Moore . . . and at odds with the aproach of the Second, Third, and Fourth Circuits . . . ."

The case involves California's and San Diego's concealed carry permitting requirements.  California law generally bans concealed carry, but allows a person to apply for a concealed carry permit where he or she lives, provided that the person shows "good moral character," completes a training course, and establishes "good cause."  San Diego enacted a policy that defines "good cause" as "a set of circumstances that distinguish the applicant from the mainstream and causes him or her to be placed in harm's way."  Concern for "one's personal safety alone is not considered good cause."

The court surveyed the history and concluded that "the carrying of an operable handgun outside the home for the lawful purpose of self-defense, though subject to traditional restrictions, constitutes 'bear[ing] Arms' within the meaning of the Second Amendment."

As to the "good cause" requirement: the court ruled that California's scheme--which bans open carry, and restricts concealed carry to all but those who can show a particularized "good cause"--amounts to a destruction of the core right to bear arms for self-defense (as opposed to a mere burden on the right).  The court thus struck the permitting scheme, without specifying a level of scrutiny.  "Heller teaches that a near-total prohibition on keeping arms (Heller) is hardly better than a near-total prohibition on bearing them (this case), and vice versa.  Both go too far."  Op. at 57.

Judge Thomas dissented, arguing that the majority "not only strikes down San Diego County's concealed carry policy, but upends the entire California firearm regulatory scheme."

February 16, 2014 in Cases and Case Materials, Fundamental Rights, News, Second Amendment | Permalink | Comments (0) | TrackBack (0)

Tuesday, February 11, 2014

Gitmo Detainees May Assert Mistreatment Claims

A divided panel of the D.C. Circuit ruled today in Aamer v. Obama that Guantanamo detainees may bring a habeas corpus claim in federal court challenging their forced-feeding by the government, but that that claim is not likely to succeed.

The ruling is notable, because it's the first time a federal appellate court ruled that Guantanamo detainees could bring a habeas claim to challenge their conditions of confinement (as opposed to the fact of their confinement).

The ruling is likely to bring  a host of new habeas claims from detainees at Guantanamo--challenging not just the fact of their detention (the kind we've already seen) but also the conditions of their confinement.  It may also bring a congressional response--to foreclose those claims.

The court also ruled that the detainees' challenge to their forced-feeding was not likely to succeed.

Some background: Congress enacted two provisions in the MCA designed to strip federal courts of jurisdiction over Guantanamo detainees' claims.  The first, at 28 U.S.C. Sec. 2241(e)(1), purports to strip federal courts of jurisdiction over Guantanamo detainees' habeas claims challenging the fact of their detention:

No court, justice, or judge shall have jurisdiction to hear or consider an application for a writ of habeas corpus filed by or on behalf of an alien detained by the United States who has been determined by the United States to have been properly detained as an enemy combatant or is awaiting such determination.

The Supreme Court struck the provision in Boumediene v. Bush (2008), holding that Congress couldn't eliminate habeas jurisdiction over Guantanamo detainees without complying with the requirements of the Suspension Clause (which it had not).

The second provision, at 28 U.S.C. Sec. 2241(e)(2), purports to strip courts of jurisdiction over Guantanamo detainees' "other" claims challenging the conditions of their confinement:

Except as provided [in section 1005(e) of the DTA], no court, justice, or judge shall have jurisdiction to hear or consider any other action against the United States or its agents relating to any aspect of the detention, transfer, treatment, trial, or conditions of confinement of an alien who is or was determined by the United States to have been properly detained as an enemy combatant or is awaiting such determination.

The D.C. Circuit previously confirmed that this latter section continued in force after Boumediene (because Boumediene dealt only with the habeas-stripping Section 2241(e)(1)), and lower court judges have ruled that it bars Guantanamo detainees from bringing habeas claims challenging their conditions of confinement (because those habeas claims were "other" claims challenging the conditions of confinement).

The D.C. Circuit ruled that it does not bar detainees' habeas claims, and that detainees may bring statutory habeas claims challenging the conditions of their confinement.

In answering the question, the court said that the two different parts of Section 2241(e) meant that Congress attempted in the MCA to bar (1) habeas claims and (2) "other" claims (i.e., non-habeas claims).  It said that Section 2241(e)(2), in barring "other" claims, had no impact on habeas claims.  And it said that Boumediene struck Section 2241(e)(1). 

So, if the detainees brought a habeas claim, it would have been covered by Section 2241(e)(1), and because that provision was struck, their habeas claim survives.

The core question, then, is whether habeas (any habeas, at Guantanamo or not) extends not only to the fact of confinement (everyone agrees it does) but also to the conditions of confinement (that's where the parties disagreed).  The court said that the Supreme Court left this question open, and that there is a split among the circuits.  Still, it said that in the D.C. Circuit habeas extends both to fact-of-confinement and to treatment claims:

The availability of habeas for both types of challenges simply reflects the extension of the basic principle that "[h]abeas is at its core a remedy for unlawful executive detention."  Munaf v. Geren.  The illegality of a petitioner's custody may flow from the fact of detention . . . the duration of detention . . . the place of detention . . . or the conditions of detention.  In all such cases, the habeas petitioner's essential claim is that his custody in some way violates the law, and he may employ the writ to remedy such illegality.

Because the detainees' claim was a habeas claim that would have fallen under Section 2241(e)(1), and because Section 2241(e)(2) bars only with "other" (non-habeas) claims and therefore doesn't affect the detainees' habeas claim at all, and because the Supreme Court struck Section 2241(e)(1), the detainees' habeas claim can go forward.

The court noted that Congress has been entirely silent on this--and has not acted to strip courts of jurisdiction over this kind of claim.

Judge Williams dissented, arguing that the detainees' claim does not sound in habeas and therefore is barred under Section 2241(e)(2).

The court also ruled that the detainees failed to show a likelihood of success on the merits of their force-feeding claims.  The court said that there were valid penological interests in force-feeding hunger-striking detainees that outweighed the detainees' liberty interest.  The court also said that the Religious Freedom Restoration Act does not extend to Guantanamo detainees, who, as nonresident aliens, do not qualify as protected "person[s]" under the RFRA. 

The court affirmed the lower court's denial of a preliminary injunction, sending the case back for more on the merits.

February 11, 2014 in Cases and Case Materials, Congressional Authority, Due Process (Substantive), Executive Authority, Fundamental Rights, Habeas Corpus, Jurisdiction of Federal Courts, News, Separation of Powers | Permalink | Comments (0) | TrackBack (0)

Monday, February 10, 2014

Michigan Supremes Uphold Medical Marijuana, Strike Local Ban

The Michigan Supreme Court last week unanimously upheld Michigan's medical marijuana law, and struck a Michigan town's ordinance that purported to apply the federal Controlled Substances Act against it, in a two-step, federal-state-local preemption ruling.  The net result: Michigan's medical marijuana law stays on the books exactly as is, and the City of Wyoming's ordinance against it is struck.  And of course: Michigan medical marijuana users could still be prosecuted by federal authorities under the Controlled Substances Act. 

The case, Ter Beek v. City of Wyoming, involved a challenge to Wyoming's ordinance that was adopted to allow city authorities to enforce the federal Controlled Substances Act (the "CSA") against Michigan's medical marijuana law.  Wyoming's ordinance read:

Uses not expressly permitted under this article are prohibited in all districts.  Uses that are contrary to federal law, state law or local ordinance are prohibited.

That last sentence would ban marijuana that violates the CSA in the city.

But a city resident challenged it as preempted by the Michigan medical marijuana law under the Michigan Constitution.  The city argued in reply that Michigan's medical marijuana law was itself preempted--by the CSA under the federal Constitution.

The court ruled first that the CSA did not preempt the Michigan medical marijuana law.  The reason is simple: nothing in the Michigan law prohibits federal enforcement of the CSA.  There's no conflict preemption and no obstacle preemption.  Moreover, the CSA "explicitly contemplates a role for the States" in regulating medical marijuana.

The court held next that the Michigan medical marijuana law did preempt Wyoming's ordinance.  Again, the reason is simple: the ordinance, by allowing enforcement of the terms of the CSA by local officials, conflicts with the Michigan law.  The Michigan Constitution says that the City's "power to adopt resolutions and ordinances relating to its municipal concerns" is "subject to the constitution and the law."  Art. 7, Sec. 22.  That means that local laws can't conflict with state laws.  And the court said that Wyoming's did.

February 10, 2014 in Cases and Case Materials, Comparative Constitutionalism, Federalism, News, Opinion Analysis, Preemption, State Constitutional Law | Permalink | Comments (0) | TrackBack (0)

Sunday, February 9, 2014

Eleventh Circuit Upholds Restriction on Funding of Political Activities by Public Employees


The Eleventh Circuit last week in Alabama Education Association v. Governor of Alabama reversed the district court's grant of a preliminary injunction against enforcement of a state law prohibiting public employees from arranging salary deductions for payments to organizations for use for "political activities."  The ruling means that the case goes back to the district court, with a heavy thumb on the scale in favor of upholding the law against the plaintiffs' First Amendment challenge.

The law at issue, Alabama Code Sec. 17-17-5, prohibits public employees from "arrang[ing] by salary deduction or otherwise" for payments to (1) political action committees or (2) organizations that use any portion of the dues for "political activity."  (Emphasis added.)  The Act goes on to define "political activity" as

a. Making contributions to or contracting with any entity which engages in any form of political communication, including communications which mention the name of a political candidate.

b. Engaging in or paying for public opinion polling.

c. Engaging in or paying for any form of political communication, including communications which mention the name of a political candidate.

d. Engaging in or paying for any type of political advertising in any medium.

e. Phone calling for any political purpose.

f. Distributing political literature of any type.

g. Providing any type of in-kind help or support to or for a political candidate.

The Alabama Education Association, its political action committee A-VOTE, and some individual members brought a pre-enforcement challenge, arguing that the Act violated free speech on its face.  In particular, they claimed that the "or otherwise" language rendered the Act overly-broad (because it would limit private forms of payment, not facilitated by the government, for political activities), and that the phrase "political activity" was unconstitutionally vague.

The Eleventh Circuit reversed the lower court's preliminary injunction against enforcement of the Act.  The Eleventh Circuit's ruling hinged on the answers to questions its certified to the Alabama Supreme Court, asking the state court to define "or otherwise" and "political activities."  According to the Alabama Supreme Court, the phrase "or otherwise" prohibited only the use of state mechanisms to support politically active organizations, and not private forms of payment not facilitated by the government.  Citing Ysursa v. Pocatello Educ. Ass'n, the Eleventh Circuit held that "[t]his compels the conclusions that the Act only declines to promote speech, rather than abridging it, and that the Act does not implicate any constitutionally protected conduct, much less a substantial amount."  The court said that the plaintiffs therefore were unlikely to succeed in their over-breadth challenge.

As to the vagueness challenge, the Eleventh Circuit said that whatever the meaning of "political activity," it at least included activity in which the plaintiffs were involved--that is, electioneering activities--and that therefore under Village of Hoffman Estates v. Flipside, the plaintiffs were unlikely to succeed on their void-for-vagueness challenge.

February 9, 2014 in Cases and Case Materials, First Amendment, News, Speech | Permalink | Comments (0) | TrackBack (0)

Tuesday, February 4, 2014

Fourth Circuit Strikes Proof-of-Religion Requirement in Prison


The Fourth Circuit ruled in Wall v. Wade that a Virginia prison's requirement that inmates show physical indicia of their faith before participating in Ramadan violated the Free Exercise Clause.

The case arose when Wall, an inmate at the Red Onion State Prison, or ROSP, in Pound, Virginia, sought a religious accommodation to participate in Ramadan--special meals served before sunrise and after sunset.  But ROSP policy required prisoners to show "physical indicia" of their faith--such as a Quran, Kufi, prayer rug, or written religious materials obtains from the prison Chaplain's office--before receiving the accommodation.  Wall had none of these, because his "physical indicia" were lost when he was transferred to ROSP from another facility.  So officials denied his accommodation.

Wall nevertheless skipped breakfast and concealed a portion of his meal in his cell to save until after sunset.  ROSP staff discovered the food and threatened to charge Wall with possessing contraband.  As the court wrote, "Faced with choosing between starvation and sanctions, Wall ate during the day and violated his religious beliefs."

Wall filed formal complaints and later sued, arguing that ROSP policy as applied to him violated RLUIPA and the Free Exercise Clause.  The district court dismissed the case, but the Fourth Circuit reversed.

The court held that the policy violated the four-part test in Turner v. Safley:

First, demanding specific physical items as proof of faith will rarely be an acceptable means of achieving the prison's stated interest in reducing costs.  Strict application of such a rule fails even a rational connection requirement. . . .

[Second, i]t is clear that Wall was absolutely precluded from observing Ramadan because of the defendants' actions. . . .

[Third, w]e are not satisfied that the defendants have sufficiently explained how a less restrictive policy would have imposed a significant burden on prison resources. . . .

Finally, we are satisfied that there existed "easy[] [and] obvious alternatives" to the challenged regulation.

The court ruled that Wall's rights were "clearly established," and that ROSP officials therefore did not enjoy qualified immunity.

The court also rejected the claim that Wall's case was moot in light of the Prison's changed policy.  Applying the "voluntary cessation" doctrine, the court wrote,  "We have no difficulty concluding that the defendants failed to meet their "heavy burden" of establishing that it is not "absolutely clear" the 2010 Ramadan policy will not be reinstated." 

February 4, 2014 in Cases and Case Materials, Free Exercise Clause, Fundamental Rights, News, Religion | Permalink | Comments (0) | TrackBack (0)

Thursday, January 30, 2014

Fourth Circuit Upholds Fannie and Freddie Tax Exemption

The Fourth Circuit ruled this week in Montgomery County, Maryland v. Federal National Mortgage Association that Fannie Mae and Freddie Mac enjoy statutory immunity certain state and local taxes--and that this congressionally granted immunity is not unconstitutional.

The ruling is a rejection of some of the more aggressive states'-rights theories that we've heard in other contexts.  It underscores federal supremacy, even in the area of state and local taxes.  It's not a surprising ruling, but the court's flat rejection of certain of the plaintiffs' states-rights arguments is notable.

The case arose out of Fannie's and Freddie's refusal to pay state and local transfer and recording taxes on foreclosed properties that they sought to sell.  Fannie and Freddie cited their federal statutory exemption, which exempts Fannie and Freddie generally from state and local taxes, "except that any real property of [either entity] shall be subject to State, territorial, county, municipal, or local taxation to the same extent as other real property is taxed." 

The court distinguished between property taxes (not exempt under the statute) and transfer taxes (exempt) and ruled that Fannie and Freddie were exempt under the plain language.

But that's not the interesting part.  The court also ruled that Congress had authority to grant the exemption, and that it didn't run afoul of federalism principles.

The court rejected the plaintiffs' contention that Fannie's and Freddie's property sales were local in nature, and therefore outside Congress's Commerce Clause authority.  "In this case, the overall statutory schemes establishing Fannie Mae and Freddie Mac are clearly directed at the regulation of interstate economic activity."  The court also rejected the novel contention that the sweep of congressional authority here should be judged under a strict scrutiny standard (and not traditional rational basis review), because the exemption intruded into an area of state sovereignty.  "The Counties' analogy to the Fifth and Fourteenth Amendments fails because there is not independent constitutional protection for the States' right to tax."

The court also rejected the plaintiffs' contentions that the exemption violated federalism principles.  The court said that the exemption didn't commandeer states or state officials, that it didn't violate the Tenth Amendment (because Congress acted within its Commerce Clause authority), and that Congress can exempt non-government entities like Fannie and Freddie. 

January 30, 2014 in Cases and Case Materials, Commerce Clause, Congressional Authority, Federalism, News, Tenth Amendment | Permalink | Comments (0) | TrackBack (0)

Seventh Circuit Strikes City Closure Law for Adult Bookstores


The Seventh Circuit ruled this week in Annex Books, Inc. v. City of Indianapolis that the city's law requiring adult bookstores to close between midnight and 10:00 a.m. every day and all day Sunday violated the First Amendment.  The ruling means that Indianapolis can't enforce its law, although it might write a new law that regulates or zones adult bookstores, short of requiring them to close.

The court took particular issue with Indianapolis's weak reason for the law: fewer armed robberies at or near adult bookstores.  The court wrote that the justification isn't supported by data.  And as to the secondary effects doctrine, it said the doctrine doesn't work when the secondary effects impact only the bookstores themselves and their patrons:

The secondary-effects approach endorsed by Almeda Books and Playtime Theatres permits governments to protect persons who want nothing to do with dirty books from harms created by adult businesses; the Supreme Court has not endorsed an approach under which governments can close bookstores in order to reduce crime directed against the businesses that knowingly accept the risk of being robbed, or persons who voluntarily frequent their premises.

The court also took issue with the required closure:

That the City's regulation takes the form of closure is the nub of the problem. . . .  The benefits come from closure: shuttered shops can't be robbed at gunpoint, and they lack customers who could be mugged.  If that sort of benefit were enough to justify closure, then a city could forbid adult bookstores altogether.

January 30, 2014 in Cases and Case Materials, Fifth Amendment, News | Permalink | Comments (0) | TrackBack (0)

Friday, January 24, 2014

Court Offers Conditional, Temporary Relief from Contraception Mandate

The Supreme Court today ordered that the government exempt Little Sisters and like organizations from the contraception mandate in Obamacare if the non-profit organization states "in writing that they are non-profit organizations that hold themselves out as religious and have religious objections to providing coverage for contraceptive services."

The ruling is a conditional, partial, and temporary victory for Little Sisters against the government's attempts to accommodate non-profit religious organizations under the contraception mandate. 

Recall that the Little Sisters organization challenged the accommodation procedure for the contraception mandate under the Religious Freedom Restoration Act.  That procedure requires organizations like Little Sisters--that is, non-profit religious organizations, but not religions--to certify to their third-party administrator that they have a religious objection to the contraception mandate in order to escape providing the coverage directly.  If Little Sisters so certified, its insurance administrator would have to provide contraception without direct cost or involvement of Little Sisters, thus building a fire wall between the organization and the contraception coverage.  But Little Sisters argued that the accommodation procedure itself (let alone the contraception mandate) violated its religious freedom, because the certification procedure amounted to authorizing a third party to provide contraception in violation of the group's religious beliefs.

The district court denied the claim.  Little Sisters appealed and filed for an injunction pending appeal.  The Tenth Circuit denied the injunction, but Justice Sotomayor, the Tenth Circuit Justice, issued a stay against the government.  The Court's order today represents the views of the full Court.

The order grants an injunction, but only conditionally, and only temporarily.  It says that Little Sisters has to certify to the Secretary of HHS that it's a non-profit and that it has a religious objection to the contraception mandate.  Moreover, it only grants an injunction "pending final disposition of the appeal by the United States Court of Appeals for the Tenth Circuit"--that is, until the Tenth Circuit issues its final ruling.  (That's not to say that the injunction couldn't be renewed pending appeal to the Supreme Court.)

The effect of today's order is to allow Little Sisters to avoid the contraception mandate entirely (as compared to simply putting it on its third-party insurer or administrator, as under the government's certification accommodation) if they properly certify to the Secretary of HHS. 

The Court was careful to say that its ruling today isn't a sign how the Court feels about the merits.

Here's the entire text:

The application for an injunction having been submitted to Justice Sotomayor and by her referred to the Court, the Court orders: If the employer applicants inform the Secretary of Health and Human Services in writing that they are non-profit organizations that hold themselves out as religious and have religious objections to providing coverage for contraceptive services, the respondents are enjoined from enforcing against the applicants the challenged provisions of the Patient Protection and Affordable Care Act and related regulations pending final disposition of the appeal by the United States Court of Appeals for the Tenth Circuit.  To meet the condition for injunction pending appeal, applicants need not use the form prescribed by the government and need not send copies to third-party administrators.  The Court issues this order based on all of the circumstances of the case, and this order should not be construed as an expression of the Court's views on the merits.

January 24, 2014 in Cases and Case Materials, News, Religion | Permalink | Comments (0) | TrackBack (0)

Wednesday, January 22, 2014

Bipartisan Bills Introduced to Amend Voting Rights Act

Senator Patrick Leahy (D-VT) and Representatives Jim Sensenbrenner (R-WI) and John Conyers (D-MI) introduced legislation last week that would amend the Voting Rights Act and recalibrate the coverage formula for preclearance.  The legislation responds to the Supreme Court's ruling last summer in Shelby County v. Holder, striking Section 4(b) of the VRA, the coverage formula for the preclearance requirement.  That ruling left Section 5 preclearance nearly a dead letter (although litigants could still seek to have a court order a jurisdiction to bail-in to preclearance under Section 3). 

Our Shelby County coverage is here and here (with links to most of our other posts on the case).

The bills would update the coverage formula to include states that have 5 or more voting rights violations during the previous 15 years and political subdivisions that have 3 or more voting rights violations during the previous 15 years.  (Coverage would continue for 10 years, unless the jurisdiction gets a court order releasing it.)  This new formula would cover Georgia, Louisiana, Misissippi, and Texas, but not Alabama, Arizona, Florida, North Carolina, South Carolina, and Virginia. 

The bills also contain a number of other provisions, perhaps most notably expanding Section 3 bail-in so that litigants can ask a court to bail-in a jurisdiction when that jurisdiction has intentionally discriminated (as now) and for any other violation of the VRA.  Ari Berman over at The Nation has a nice summary.

The new provisions will undoubtedly be challenged when and if they're enacted.  On the one hand, they address a major concern of the Court in Shelby County: they update the coverage formula to use more current violations as the basis for coverage.  But on the other hand, they still treat states differently (and potentially run afoul of the Court's new-found "equal sovereignty" doctrine), and the state-wide formula does not account for actual voter turn-out (although the political subdivision formula does) and neither formula addresses the number of elected officials--data that the Court found at least relevant in its ruling.

January 22, 2014 in Cases and Case Materials, Congressional Authority, Elections and Voting, Federalism, Fifteenth Amendment, Fourteenth Amendment, News, Race, Recent Cases, Reconstruction Era Amendments | Permalink | Comments (1) | TrackBack (0)

Tuesday, January 21, 2014

Public-Sector Fair Share Appears to be Safe

 The Supreme Court heard oral arguments today in Harris v. Quinn, the case testing whether fair-share fees for non-union in-home care providers in the Illinois Medicaid program violate the First Amendment.  (Our argument preview is here.)  The Court in Abood v. Detroit Board of Education previously upheld public-sector fair-share fees to support a union's collective bargaining activities in the interests of preventing free-riders on a union's activities and promoting workplace peace.  But this case put Abood directly in the Court's cross-hairs, as the petitioners argued to overturn the decades-old case.

If today's arguments are any indication, that seems an unlikely result.

Still, it's not entirely clear what the Court will do with the case.  For one thing, there was just a lot of confusion about it.  For example, on the question whether the union's work here (in the state's Medicaid program) represented advocacy on a public matter (thus strengthening the non-members' claims), no clear position emerged.  Here's an exchange between Justice Kagan and the attorney for the petitioners (the home-care workers):

Justice Kagan: But you're not objecting, I think, to the union as a whole.  What you're objecting to is an individual employee having to support that activity.  The scale is no different.  It's an individual employee.

Mr. Messenger: Yes, it's an individual employee being forced to support that expressive activity.  So the question becomes: What expressive activity are they being forced to support?  And when you're speaking of changing an entire government program, for example, Medicaid rates across the board, that is a matter of public concern.  That is a matter of lobbying or political --

Justice Kagan: But that's exactly what the individual employee in Justice Scalia's hypothetical is arguing for.  He wants wage rates to be changed across the board.  He knows they're not going to be changed just for him.  He wants higher wage rates.

Mr. Messenger: But, again, under this Court's private--under the public conern test, an individual simply speaking to that usually does not rise to a matter of public concern.

Chief Justice Roberts jumped in during the respondents' argument to underscore the problem.  He made a point that under the state's position one union's advocacy for increased Medicaid rates might be an issue of public concern (as in a teacher's union), but another union's advocacy for the same incrased Medicaid rates is a private employment issue (as here), suggesting that that can't be. 

Justice Breyer quickly rescued the respondents and outlined the opposite position--"Collective bargaining with any employer, meat packers, hours, safety depends on hours, always can involve public interest questions"--arguing that the Court shouldn't be in the business of this kind of line-drawing.

The one to watch here may be Justice Kennedy.  He suggested at one point that nearly all of this union's activities were public matters, but at a different point that the Court's jurisprudence provides (at least) a partial solution: non-members can be compelled to pay fair-share fees for those activities that might involve free-riding, but not for other activities for which they don't receive a benefit.  (Justice Scalia piped in to remind us that under the Court's jurisprudence non-members can opt-out of fees for benefits that they don't enjoy.)  The problem here may be sorting out which kind of benefit is which.

Justice Alito underscored this problem when he pressed the state on a hypothetical non-union teacher who has to pay a fair-share fee to support the union's advocacy of the tenure system.  But the teacher disagrees with the union's position on this, so has to pay another organization an equal amount to represent his or her views--just to counteract the advocacy supported by his or her compelled fair-share fee.  Justice Kennedy posed a similar hypo.  The state responded that here the fair-share fee supports union activity that benefits all workers, but it's not clear that a majority bought it, or, if they did, that they weren't also thinking beyond the narrow facts of this case.

The case also involved several puzzles, both practical and jurisprudential, that seem to put the petitioners' positions at odds with common sense and doctrine.  Here's Justice Sotomayor raising one with the petitioners:

Justice Sotomayor: Is there a problem for the State to say--the union, to organize has a certain amount of costs.  So putting aside fair representation laws, could the State say, this is what we're going to pay police officers, 100 dollars, but we're going to pay union members 110 to reimburse them for the cost of negotiation.  Would that be OK?

Mr. Messenger: Yes.

 Here's Justice Kagan raising another:

Justice Kagan: Because here's the thing: That in the workplace we've given the government a very wide degree of latitude and there's much that the government can do.  It can fire people.  It can demote people for things that they say in the workplace, not for things that they say as a citizen . . . .

So you're saying, well, the government can punish somebody for saying something, but the government in the exact same position cannot compel somebody to say something they disagree with.  And I want to know what's the basis for that distinction, which it seems to me is just as hard as -- as if you were answering under the petition clause.

There was also significant confusion about whether the state's flexibility in negotiating wages--and therefore why the union's participation is necessary.  (If the wages are set--by the Medicaid program, for example--what benefit does the union bring?) 

Justices Scalia and Alito both expressed some skepticism over the state's intent in requiring fair-share, Justice Alito suggesting that it was Governor Blagojevich's reward to the union for a huge campaign contribution.

In rebuttal, Justice Scalia pressed the petitioners about free-riding and what their position could do to unions; Justice Kagan pressed them about what their position would do to "thousands and thousands" of public contracts that include fair-share provisions.  Justice Kagan earlier put a finer point on the case's significance and with the help of respondents' counsel told us just what's at stake:

Justice Kagan: So, Mr. Messeenger, even on the compulsory fees, I mean, what strikes me is that this is -- I'm just going to use the word here, it is a radical argument.  It would radically restructure the way any workplaces across this country are -- are run.

And let me just put it to you this way and ask if you agree with this -- with this statement.  Since 1948, since the Taft-Hartley Act, there has been a debate in every State across this country about whether to be a right-to-work State and people have disagreed.  Some States say yes, some States say no.  It raises considerable heat and passion and tension, as we recently saw in Wisconsin.  And -- but, you know, these are public policy choices that States make.

And is it fair to say that what you're suggesting here, your argument, is essentially to say that for 65 years, people have been debating the wrong question when they've been debating that, because, in fact, a right-to-work law is constitutionally compelled?

Mr. Messenger: In the public sector, yes . . . .

January 21, 2014 in Association, Cases and Case Materials, First Amendment, Fundamental Rights, News, Oral Argument Analysis | Permalink | Comments (1) | TrackBack (0)

Sunday, January 19, 2014

Court Takes on Fair Share Union Dues (Again)

The Supreme Court will hear oral arguments on Tuesday in Harris v. Quinn, the case testing whether a state law requiring non-union homecare personal assistants to pay union dues for the assistants' union's colleective bargaining activities violates the First Amendment.  The case threatens the decades-long rule that non-union public employees can be compelled to pay union dues for the union's collective bargaining activities (but not the union's political activities), under Abood v. Detroit Board of Education.  The Court presaged this threat two Terms ago in SEIU v. Knox.

Here's a selection from my preview in the ABA Preview of United States Supreme Court Cases, with permission:

FACTS

The Illinois Department of Human Services operates two Medicaid-waiver programs that subsidize the costs of home-based assistants for disabled individuals or patients who might otherwise face institutionalization. The programs allow Medicaid patients to live in their own homes with the help of personal assistants. One of these programs, the Home Services Program, is administered by the Division of Rehabilitative Services; the other program, the Home Based Support Services Program, is administered by the Division of Developmental Disabilities. The lower court and the parties call these programs the “Rehabilitation Program” and the “Disabilities Program,” respectively.

Under the Rehabilitation Program, a patient works with a counselor to develop an individual service plan. The plan specifies “the type of service(s) to be provided to the patient, the specific tasks involved, the frequency with which the specific tasks are to be provided, the number of hours each task is to be provided per month, [and] the rate of payment for the service(s).” The service plan must be certified by the patient’s physician and approved by the state. The patient is then free to select almost any personal assistant who meets the qualifications related to work experience, training, and skills set by the state. The personal assistant signs an employment agreement directly with the patient, but the terms of the agreement are set by the state. The state also sets wages and pays the personal assistant, withholding Social Security and federal and state taxes. (Personal assistants are also sometimes called homecare providers.)

The Disabilities Program functions similarly, although the record is less developed as to the specific relationship between a personal assistant and the state.

In the mid-1980s, personal assistants in the Rehabilitation Program sought to unionize and to bargain collectively with the state. The State Labor Relations Board found that it lacked jurisdiction over the personal assistants, however, because the state was not their sole employer. As a result, personal assistants could not unionize.

In 2003, the state amended the Illinois Public Labor Relations Act to designate “personal care attendants and personal assistants working under the Home Services Program” as state employees for the purpose of collective bargaining. Governor Rod Blagojevich then issued an executive order directing the state to recognize an exclusive representative of Rehabilitation Program personal assistants if they designated one by a majority vote and to engage in collective bargaining over all employment terms within the state’s control. The Rehabilitation Program personal assistants later voted to designate SEIU Healthcare Illinois & Indiana as their collective bargaining representative with the state. The union and the state negotiated an agreement that set pay rates, created a health benefits fund for personal assistants, and established a joint union-state committee to develop training programs. The agreement also contained a “fair share” provision that required all personal assistants who were not members of the union “to pay their proportionate share of the costs of the collective bargaining process, contract administration and pursuing matters affecting wages, hours and other conditions of employment.”

In 2009, Governor Pat Quinn issued an executive order directing the state to recognize an exclusive representative for the Disabilities Program personal assistants if they designated one by majority vote. A majority of Disabilities Program personal assistants, however, rejected union representation. (This vote was not necessarily the final decision on representation. Under state law, a union can request a new vote in the future and can even bypass a vote altogether if it collects a sufficient number of union cards from the personal assistants.)

Personal assistants in both programs sued. Non-union personal assistants in the Rehabilitation Program claimed that the fair-share fees that they were required to pay violated the First Amendment by compelling them to associate with the union. Personal assistants in the Disabilities Program claimed that they were harmed by the mere threat of an agreement requiring fair-share fees.

The district court dismissed the Rehabilitation Program personal assistants’ case on the merits, and it dismissed the Disabilities Program personal assistants’ case because they lacked standing and because their case was not ripe. The United States Court of Appeals for the Seventh Circuit affirmed. (The Seventh Circuit recognized, however, that the Disabilities Program personal assistants’ case could become ripe in the future.) This appeal followed.

CASE ANALYSIS

Compulsory union fees, or fair-share fees, implicate the First Amendment because they represent a form of compelled expressive association. In other words, fair-share fees require non-union-members to support union activities and expression with which they disagree. In particular, the fees require non-members to pay for union expression (in the form of fair-share fees to support collective bargaining), and thus to associate with that expression, even if they do not support it or wish to associate with it.

Still, the Supreme Court has long upheld requirements that non-union members financially support the costs of collective bargaining. Thus in Railway Employees’ Dep’t v. Hanson, 351 U.S. 225 (1956), the Court declined to enjoin a “union shop” agreement between a railroad company and a union that required all employees (whether unionized or not) to pay union dues as a condition of employment—even though a state constitutional “right to work” provision outlawed it. The Court held that the federal Railway Labor Act permitted the union shop agreement and superseded the state constitutional provision. The Court held that the federal act was justified by Congress’s interest in supporting “industrial peace and stabilized labor-management” and in distributing the costs of collective bargaining to all those who benefited from it. The Court upheld the federal act as an exercise of Congress’s power under the Commerce Clause, and ruled that it did not violate the First Amendment insofar as it permitted compulsory fees for collective bargaining activities.

Later, in International Association of Machinists v. Street, 367 U.S. 740 (1961), the Court read the Railway Labor Act not to extend to mandatory fees to finance the campaigns of candidates for federal and state offices. The Court ruled that while the act may authorize mandatory fees for collective bargaining activities (for the same reasons in Hanson), the act would violate the First Amendment if it authorized mandatory fees for political purposes with which an employee disagreed.

Later yet, the Court in Abood v. Detroit Bd. of Education, 431 U.S. 209 (1977), drew on the interests in Hanson and Street to uphold a state law that allowed an “agency shop” clause in a collective bargaining agreement in the public sector. The Court ruled that the First Amendment did not prohibit an “agency shop” clause in an agreement between the Detroit Board of Education and its teachers’ union that required non-unionized teachers to financial support the union’s collective bargaining activities. The Court drew upon the government interests in Hanson and Street—supporting “industrial peace and stabilized labor-management” and avoiding “free riders” who refuse to contribute to the union while obtaining the benefits of union representation—and held that they were sufficient to justify the intrusion on First Amendment associational rights.

More recently the Court has chipped away at these principles. Most recently, in Knox v. SEIU, 132 S. Ct. 2277 (2012), the Court signaled that it was prepared to reconsider them entirely. In particular, the Court took aim at the “free rider” justification for “agency shop” agreements, saying that it was “generally insufficient to overcome First Amendment objections” and that it “represents something of an anomaly.” The Court left Abood intact, however, even if it also all but foretold Abood’s demise.

The parties frame their arguments against this history.

Pamela Harris, a personal assistant homecare provider who represents the class of personal assistants who are the petitioners in this case, argues first that Abood should be overruled, because the compulsory fees upheld in the case do not meet the “exacting scrutiny” applicable to compelled associations. She claims that Abood was based on a flawed interpretation of earlier case law, that it relied upon an anomalous justification, and that the compulsory fees upheld in Abood were not necessary for the exclusive representation by the union. In particular, Harris says that the Court borrowed the “labor peace” justification for compulsory fees from earlier case law explaining Congress’ authority to invalidate state laws prohibiting union-shop agreements under the Commerce Clause (and having nothing to do with the First Amendment). She claims the Court wrongly applied this justification to its First Amendment, compulsory association analysis in Abood. The net result, she says, is that the Court in Abood wrongly held that “labor peace” (a justification for federal laws under the Commerce Clause) was sufficient to justify compulsory union dues (in the face of the First Amendment). (Harris says that Justice Powell, joined by Chief Justice Burger and Justice Blackmun, recognized this problem in his concurrence in Abood.) Moreover, Harris contends that Abood’s “free rider” rationale for compulsory fees is an “anomaly,” and “generally insufficient to overcome First Amendment objections” (quoting Knox.) And she says that compulsory fees are not a necessary incident of exclusive representation (again drawing on Knox). For these reasons, Harris claims that Abood should be overruled.

Harris argues next that even if the Court declines to overruled Abood, it should sharply limit the case to its narrow facts. She says that Abood should apply only when the government directly supervises individuals in its workplace and when union representation does not involve matters of public concern. Harris claims that neither condition is satisfied here. She says that unlike the public-school teachers in Abood, Illinois homecare providers are not managed by the state (they are managed by the individuals they serve), and that homecare providers therefore do not fall under the Abood rationale. Moreover, she says that the personal assistants’ expressive association through the union is on a matter of public concern, that is, the operations of the state’s Medicaid program, and not merely the terms and conditions of their employment. Harris contends that the state therefore has no “labor peace” rationale for imposing mandatory fees. And Harris contends that in any event the compulsory fees are not necessary to any larger regulatory purpose, as required by Knox. She claims that if Abood were to allow compulsory expressive association here, it would allow the state to designate compulsory advocates to speak for others whose services are funded by a government program, including the medical industry and government contractors, among others—clearly an absurd result, she says.

Finally, Harris argues that personal assistants in the Disabilities Program are entitled to challenge the mandatory fees. Harris says that those providers need only show a substantial risk that they will be harmed. She claims that they did so, because Governor Quinn’s executive order substantially increases the risk that they will be forced to accept exclusive union representation, and to pay union fees.

The state argues that Abood should not be overruled. The state says that Abood follows from Hanson and Street, and that those decisions are rooted in the First Amendment. The state claims that Harris mischaracterizes those decisions as not relying on the First Amendment and “seek[s] to rewrite the many decisions that rely on [Hanson and Street] for their First Amendment analysis.” The state contends that the Court has relied on Abood’s First Amendment analysis in cases upholding mandatory bar dues (Keller v. State of California, 496 U.S. 1 (1990)), mandatory assessments for fruit producers to contribute to the costs of industry advertising (Glickman v. Wileman Brothers & Elliot, Inc., 521 U.S. 457 (1997)), and a mandatory student activity fees (Board of Regents of the University of Wisconsin System v. Southworth, 529 U.S. 217 (2000)). Moreover, the state says that Harris’s claims would threaten the long-held distinction between the government as regulator and the government as employer, because those claims treat the personal assistants’ speech as core political speech on matters of public concern (and not speech over the terms of their employment). (The state points to the Court’s cases on public employee speech, where the Court distinguishes between the government (relatively greater) interests as an employer regulating the speech of its employees and its (relatively lower) interests in regulating the speech of citizens in general, especially core political speech.) Finally, the state claims that Abood and related cases are entitled to stare decisis effect: it says that the Abood rule has not become unworkable, circumstances have not changed since Abood, and both public-sector unions and government have come to rely upon Abood.

Next the state argues that Harris is wrong to claim that its decision to negotiate exclusively with the union alone violates the First Amendment. The state contends that Harris’s argument is foreclosed by Minnesota State Board of Community Colleges v. Knight, 465 U.S. 271 (1984), which, by summary affirmance, sustained a state law granting public employees the right to negotiate through their exclusive representative. Moreover, the state says that granting exclusive representation to the union does not threaten the First Amendment rights of personal assistants, because personal assistants may decline to join the union.

The state argues that Harris’s proposal to limit Abood ignores and minimizes its vital interests. In particular, the state claims that it has an interest in promoting “industrial peace and stabilized labor-management relations” and the need to avoid free-riders. The state says that, contrary to Harris’s position, these interests are “vital” and well sufficient to justify fair-share fees for its employees in these programs that serve the state’s “most vulnerable citizens.” (The state argues that personal assistants are, indeed, its employees, even if they also answer in limited respects to the patients they serve. That’s because the state controls many of the terms and conditions of their employment.) For these reasons, the state claims that its system of collective bargaining satisfies the correct constitutional test, a balancing test (and not strict scrutiny, as Harris would have it.

(SEIU Healthcare Illinois & Indiana, the union that represents the personal assistants in the Rehabilitation Program, presents substantially similar arguments on the constitutionality of the fair-share fees.)

Finally, the state argues that personal assistants in the Disabilities Program have presented only a “hypothetical threat,” and not an injury ripe for adjudication. Moreover, the state says that the personal assistants in the Disabilities Program will not suffer any hardship if judicial resolution of their claim is postponed. (AFCSME Council 31 and SEIU Local 73, the unions that attempted to organize the personal assistants in the Disabilities Program, make substantially the same arguments on justiciability.)

SIGNIFICANCE

Simply stated, this case puts front-and-center the decades-old balance the Court struck in Abood. The Court in that case ruled that fair-share fees do not violate the First Amendment, because the government had sufficiently weighty interests in labor peace and avoiding free-riders. But the Court has chipped away at this principle, most recently in Knox, where the Court went so far as to suggest that it was prepared to reconsider Abood. This case gives the Court that chance.

If the Court overturns Abood, or even if it limits that case, the ruling could deal a serious blow to public sector unions. That’s because fair-share fees are designed to ensure that every employee who gains the benefits of a union’s collective bargaining also shares in the costs of that collective bargaining. In this way, fair-share fees are designed to solve a basic collective action problem: if employees can gain the benefits of collective bargaining without paying the costs, no employee will pay the costs, and the benefits will eventually disappear for all, union or not. Without fair-share fees, public-sector unions would have to carry the weight of non-members without the benefit of their financial support. And with no personal financial incentive to join a union in the first place—why would an employee join a union and pay union dues if he or she could free-ride on the union’s collective bargaining activities?—public union membership and strength will almost surely plummet.

On the other hand, this case gives the Court an opportunity to recalibrate the balance between associational rights and the government’s interests in labor peace and avoiding free-riders—and to privilege the associational rights. In other words, the case gives the Court a chance to better protect the associational rights of non-members. Again, though, this would come at the expense of union strength and the collective bargaining power of all the personal assistants, union or not.

Still, the Court need not go so far. The Court could dodge a ruling on the status of Abood by distinguishing this case on its unique facts. For example, the Court could rule that personal assistants are not employees of the state, and that therefore the state’s interests in Abood do not apply. Or the Court could rule that the personal assistants seek to speak on a matter of pure public concern—lobbying for greater reimbursements under the state’s Medicaid program—and that therefore the mandatory fees warrant greater First Amendment scrutiny than in Abood. Such a ruling would obviously affect these litigants, and other employees and states like them, but it would not (necessarily) upset the basic principles in Abood.

January 19, 2014 in Association, Cases and Case Materials, First Amendment, News | Permalink | Comments (1) | TrackBack (0)

Does Obama's Ban on Lobbyists in Advisory Slots Violate Free Speech?

Schwinn-steven
Steven D. Schwinn, John Marshall Law School

The D.C. Circuit on Friday remanded a case challenging President Obama's ban on registered lobbyists serving on advisory committees.  The case, Autor v. Pritzker, means that the district court will have a second crack at determining whether the ban violates the First Amendment.  The ruling suggests, but does not conclude, that the D.C. Circuit thinks that it does.

Appellants in the case are federally registered lobbyists wishing appointment to an Industry Trade Advisory Committee, or ITAC, a type of advisory committee established under the Trade Act of 1974.  There are sixteen industry-specific ITACs that provide information and advice to the President on trade issues reflecting the viewpoints of the industry.  As a result, ITAC members include representatives from major corporations. 

But President Obama moved to bar lobbyists from serving on ITACs and other advisory committees in order to change "the culture of special-interest access" in Washington.  In particular, he directed "the heads of executive departments and agencies not to make any new appointments or reappointments of federally registered lobbyists to advisory committees."  This meant that the appellants couldn't serve on ITACs.  Appellants sued, arguing that the ban violated the First Amendment--that service on an ITAC would require them to relinquish their free-speech rights.

The D.C. Circuit ruled that their complaint stated a First Amendment claim and that it shouldn't be dismissed.  The court remanded the case for a determination of the First Amendment question.

The court distinguished Minnesota State Board for Community Colleges v. Knight.  In that case, the Court held that a union's ability to exclude non-union-members from participation in "meet and confer" sessions with government employers did not violate the First Amendment.  Here, in contrast, the court wrote that "any burden on Appellants' constitutional rights results directly from the government's decision to bar them from ITAC membership."

The court instead drew on the government-employee speech doctrine.  It ruled that the lobbyist ban might work a deprivation of a valuable benefit, service on a congressionally created ITAC, at the expense of federally registered lobbyists' free-speech rights.  In other words, the ban might violate the unconstitutional conditions doctrine. 

The court remanded the case for a calculation under Pickering of the "balance between the interests of the [appellants] . . . and the interests of the State."  The court wrote,

In doing so, the district court should ask the parties to focus on the justification for distinguishing, as the lobbyist ban does, between corporate employees (who may represent their employers on ITACs) and the registered lobbyists those same corporations retain (who may not).  The court may also want to ask the government to explain how banning lobbyists from committee composed of representatives of the likes of Boeing and General Electric protects the "voices of ordinary Americans."

January 19, 2014 in Cases and Case Materials, Executive Authority, First Amendment, News, Speech | Permalink | Comments (0) | TrackBack (0)

Saturday, January 18, 2014

State Constitutional Challenge to Dual System of Voter Registration

Julie Ebenstein of the ACLU writes on Jurist.org that the dual system of voter registration in Kansas unlawfully denies citizens the right to vote.  Ebenstein outlines the Kansas case challenging the dual system under state constitutional provisions, filed last November and now pending in state court.

As we wrote, two states, Arizona and Kansas, adopted a dual system of voter registration in the wake of the Supreme Court's ruling last summer in Arizona v. Inter Tribal Council of Arizona.  In that case, the Court held that the requirement under the National Voter Registration Act that states "accept and use" an approved and uniform federal form for registering voters preempted Arizona's requirement that voters present evidence of citizenship at registration.  (The NVRA form requires applicants simply to attest to their citizenship, not to provide additional documentation.) 

Arizona and Kansas then announced that they would require voters to register separately for state and federal elections.  This created a dual system of voter registration: NVRA and state-form registrants before January 1, 2013, can vote in both state and federal elections; but NVRA registrants after January 1, 2013, can vote in only federal elections.  (NVRA registrants after that date also can't sign petitions.)  Now only state-form registrants who provide the additional proof of citizenship can vote in state elections.  State-form registrants who fail to provide the additional proof of citizenship cannot vote at all.

The ACLU and ACLU of Kansas filed suit last November challenging the dual registration system.  The complaint, filed in state court, alleges that the system violates state constitutional equal protection by distinguishing between classes of voters in the state, that state officials exceeded their state constitutional authority, and that the system wasn't properly promulgated as a rule or regulation under Kansas law.

January 18, 2014 in Cases and Case Materials, Comparative Constitutionalism, Congressional Authority, Elections and Voting, Equal Protection, Federalism, News, Preemption, State Constitutional Law | Permalink | Comments (0) | TrackBack (0)

Wednesday, January 15, 2014

Obamacare Tax Credit Survives Lawsuit

Judge Paul Friedman today upheld an IRS rule that extends tax credits to individuals purchasing health insurance on a federally-facilitated exchange under Obamacare.  The ruling in Halbig v. Sebelius deals a blow to opponents of Obamacare in one of the several cases against the Act still percolating in the courts.  We wrote on some of those cases and issues most recently herePolitico reports on this case here.

The case was a challenge to an IRS rule that extended tax credits not only to health-insurance purchasers on state exchanges, but also to health insurance purchasers on federally-facilitated exchanges.  That's a problem, the plaintiffs said, because the ACA didn't authorize the IRS to extend credits to purchasers on federally-facilitated exchanges.

In particular, the ACA calculates the credit based in part on the premium expenses for the health plan "enrolled in [by the individual] through an Exchange established by the State . . . ."  (Emphasis added.)  But the IRS rule makes tax credits available to qualifying individuals who purchase health insurance on state-run or federally-facilitated exchanges.

A group of individuals and employers residing in states that have declined to establish state exchanges sued, arguing that the IRS exceeded its authority under the ACA in extending tax credits to individuals in states without exchanges (and where the federal government facilitates the exchange). 

You might wonder about standing, given that the rule is designed to make insurance cheaper.  The court said at least one plaintiff had standing.  That's because one plaintiff lives in a state that declined to create an exchange, plans to earn $20,000 in 2014, and does not plan to enroll in a health insurance plan.  That plaintiff also introduced evidence that the cost of minimum health insurance coverage, if unsubsidized, would exceed eight percent of his income, allowing him to qualify for an unaffordability exemption.  But the IRS rule would lower the cost of his insurance premiums so significantly that he no longer qualifies for the unaffordability exemption.  As a result, the IRS rule means that he (1) has to purchase subsidized health insurance at about $20 per year or (2) has to pay some higher amount per year as a tax penalty (for not buying health insurance).  Because the rule encourages him to buy insurance--and that costs money (more than the exemption), even if only $20 a year--he has standing.  The irony wasn't lost on the court: "Counterintuitively, by making health insurance more affordable, the IRS Rule imposes a financial cost on Klemencic."As to the merits, the court said that the ACA is ambiguous when it extends credits to purchasers on exchanges "established by the State."  That's because the ACA, taken as a whole (and not just the limited provision cited by the plaintiffs, taken in isolation), can be reasonably understood to assume that states establish exchanges, and to leave it to the federal government to step in and establish an exchange only when a state declines to do so.  When the federal government does this, the court said, then it (the federal government) creates an exchange "established by the State."  "In other words, even where a state does not actually establish an Exchange, the federal government can create 'an Exchange established by the State . . .' on behalf of that state."The court also said that other provisions of the ACA suggest that Congress intended to extend credits to purchasers on federally-facilitated exchanges, and that those provisions would clash with the plaintiffs' preferred reading of the Act. 

January 15, 2014 in Cases and Case Materials, Congressional Authority, Executive Authority, Jurisdiction of Federal Courts, News, Separation of Powers, Standing | Permalink | Comments (0) | TrackBack (0)

Monday, January 13, 2014

Argument Review in Noel Canning, Recess Appointment Authority

The Supreme Court heard oral arguments today in NLRB v. Noel Canning, the case testing whether the President may make recess appointments to positions already vacant during an intra-session recess of the Senate.  Our argument preview is here.

The Court today was especially sensitive to the many thorny doctrinal, practical, and political issues in the case, and seemed to be looking for a simple solution that would dodge them.  The ordinary appointments process (with advice and consent of the Senate), as suggested by Chief Justice Roberts and Justice Ginsburg (see below), may well be that solution.  If so, the Court might read the Recess Appointments Clause more restrictively in this case, limiting the President's recess-appointments authority, and giving more power to the Senate to hold up executive appointments by declining to recess.

The case presents three questions about the Recess Appointments Clause:

1. Does "the Recess of the Senate" include intra-session breaks, or recesses?

2. Do "Vacancies that may happen during the Recess" include vacancies that already existed?

3. Can the President exercise the recess-appoitnment power when the Senate convenes only every three days in pro forma sessions?

The arguments included the predictable points on text and history--interpretations of "the Recess," the clause "may happen," and historical practices and understandings.  (If anything, these arguments only revealed how indeterminate and contestable these sources can be.  See, e.g., the discussion on the OED's definitions of "happen" starting at about page 60 or so of the transcript, and the points over practices running throughout the arguments.)  The particular concern with the words "may happen" suggest one possible outcome: the Court could rule that while "the Recess" includes intra-session recesses, "may happen" extends only to vacancies that occur (not already exist) during a recess.

But the more interesting--and probably more important--points were on balance-of-powers principles and practical implications--against the obvious backdrop of partisan politics.  

Indeed, what started in the briefing as a debate principally about the meaning and practice of the Recess Appointment Clause turned quickly today into a debate about executive power and whether the Senate encroached on executive recess-appointment power by meeting in pro forma sessions and thus denying the President a recess in which to make recess appointments.  General Verrilli pushed the argument on executive authority beyond a mere point on when the Senate is in "recess," claiming broadly that the President should get to fill all vacancies.  Justice Alito put a fine point on it:

But you are making a very, very aggressive argument in favor of executive power now and it has nothing whatsoever to do with whether the Senate is in session or not.  You're just saying when the Senate acts, in your view, irresponsibly and refuses to confirm nominations, then the President must be able to fill those--fill those positions.  That's what you're arguing.  I don't see what that has to do with whether the Senate is in session.

But Noel Canning and the Senate Minority Leader both took aggressive positions the other way, saying that the Senate gets to decide when it's on recess--even saying that it's never on recess--thus severely limiting the President's recess appoitment power.  Respondents argued that the President has come to use the recess appointment power to deal with Senate intransigence, not emergencies--an argument that seemed to resonate with the Court.

Chief Justice Roberts and Justice Kagan both seemed concerned that such an important balance-of-powers issue could turn on magic language in a Senate resolution, for example, as here, that says "No business shall be conducted."  Chief Justice Roberts said that this maybe made the point not so important.  Justice Kagan said that focusing on the phrasing of a Senate resolution could just land the case back at the Court, and that focusing on this kind of formalism suggests that it really is the Senate's responsibility to determine when it's in session or not.  But General Verrilli responded that the recess appointment power is an executive authority, "[a]nd the President has got to make a determination of when there's a recess"--that the Senate's use of pro forma sessions to stay in session (and not on recess) is an encroachment on Article II Recess Appointment power.

The Court was also concerned about how to balance text against practice.  Justice Scalia posed this question:

What do you do when there is a practice that--that flatly contradicts a clear text of the Constitution?  Which--which of the two prevails?

General Verrilli responded:

The answer is I think, given this--a practice going back to the founding of the Republic, the practice should be--the practice should govern, but we don't have that here.  This provision has been subject to contention as to its meaning since the first days of the Republic.

Justices Alito and Kagan asked the same question to Noel Canning, and got the exact opposite answer.  

The Court was also concerned about a related problem: If the government gets its way, it appears that the Senate violated the 20th Amendment and the Adjournment Clause.  Justices Breyer and Alito both suggested that the Court would rather avoid that conclusion.

These more theoretical issues are serious, to be sure, but they may not be necessary to resolve the case.  The Court was equally, or more, concerned about the practical implications of the case--in particular, how a ruling could affect already-made decisions by the NLRB, other government agencies, and even the courts (because of recess-appointed judges).  Chief Justice Roberts and Justices Sotomayor and Ginsburg asked about this; Justice Scalia suggested a way out of this problem, the de facto officer doctrine; still General Verrilli said that "it certainly casts a serious cloud over the legitimacy of all those actions."

Also focusing on the practical aspects of the case, Chief Justice Roberts and Justice Ginsburg both wondered why the President couldn't just use the ordinary appointment process (and why the Senate couldn't decline to confirm)--in other words, why the government says that the pro forma sessions and lack of intra-session recess appointment power is a problem.  Justice Scalia pointed out that the President can convene Congress (under Article II, Section 3, "He may, on extraordinary occasions, convene both houses"), and that Congress can get back within a day or so to deal with appointments.

Finally, Justice Breyer and Justice Kagan both asked about the politics--the shifting positions of the parties, depending on who is in the White House, and the President's use of the recess appointment power to deal with congressional intrasingence, not emergencies.  General Verrilli responded that the Senate's advice-and-consent role is much larger today than the framers anticipated, and that today it encroaches on the President's appointment power--trying to take the case out of ordinary politics and place it back in larger balance-of-powers issues.

 

January 13, 2014 in Appointment and Removal Powers, Cases and Case Materials, Congressional Authority, Executive Authority, News, Oral Argument Analysis, Separation of Powers | Permalink | Comments (0) | TrackBack (0)

Friday, January 10, 2014

Noel Canning and the Recess Appointment Power

Steven D. Schwinn

John Marshall Law School

The Supreme Court will hear oral arguments on Monday in NLRB v. Noel Canning, the case testing the President's recess appointment power.  In particular, the case tests whether the President can make a recess appointment during a prolonged intra-session recess of the Senate in which the Senate sits in pro forma sessions every three days.  We most recently posted on the case here.

Here's a preview, reprinted, with permission, from the ABA Preview of United States Supreme Court Cases:

FACTS

The National Labor Relations Board, or the NLRB or the Board, consists of five members who are appointed by the president and confirmed by the Senate. Three members constitute a quorum, and without three or more members the Board cannot adjudicate cases involving unfair labor practices under the National Labor Relations Act.

On January 3, 2012, Board membership fell to two members. The next day, on January 4, 2012, President Obama sought to fill the three vacancies with recess appointments pursuant to the Recess Appointments Clause of the Constitution. That Clause allows the president “to fill up all Vacancies that may happen during the Recess of the Senate,” without obtaining the usual advice and consent. Thus President Obama purported to appoint Sharon Block, Terence F. Flynn, and Richard F. Griffin to seats that had become vacant on January 3, 2012, August 27, 2010, and August 27, 2011, respectively. The appointments, if valid, would have completed the five-member NLRB. (Two Board members, Chairman Mark G. Pearce and Brian Hayes, were confirmed by the Senate on June 22, 2010. Neither party disputes the validity of their appointments.)

President Obama purported to use the recess appointment power, because at the time the Senate was not meeting regularly. Instead, the Senate was operating pursuant to a unanimous consent agreement that provided that the Senate would meet in pro forma sessions only, “with no business conducted,” every three business days from January 3, the beginning of the second session of the 112th Congress, to January 23, 2012. The agreement said that each pro forma session would be followed immediately by another adjournment. The agreement meant that no senators were required to attend, except the one who gaveled in and out each pro forma session. (A previous and similar unanimous consent agreement ran from December 17 to January 3, 2012. The Senate interrupted that agreement once, on December 23, 2011, to pass a temporary extension to the reduced payroll tax.)

On February 8, 2012, a three-member panel of the Board, composed of Block, Hayes, and Flynn, affirmed the findings of an NLRB administrative law judge (ALJ) that Noel Canning engaged in an unfair labor practice. (The ALJ found that Noel Canning refused to execute a written collective bargaining agreement incorporating terms, related to wages and pension, that the union and Noel Canning agreed upon during contract negotiations. The ALJ found that Noel Canning’s refusal to execute an agreement violated §§ 8(a)(1) and (5) of the National Labor Relations Act.) Noel Canning appealed to the United States Court of Appeals for the D.C. Circuit, challenging the NLRB’s decision on its merits, and arguing that the Board could not act lawfully because it lacked a quorum. The court rejected Noel Canning’s arguments on the merits, but ruled that the NLRB lacked a quorum, and therefore did not act lawfully, because President Obama’s appointments violated the Recess Appointments Clause.

The Board sought review in the Supreme Court, presenting two questions that had been decided by the court of appeals. The Supreme Court granted review and directed the parties also to address “[w]hether the President’s recess-appointment power may be exercised when the Senate is convening every three days in pro forma sessions.”

CASE ANALYSIS

The Recess Appointments Clause, Article II, Section 2, Clause 3 of the Constitution, provides that “[t]he President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.” The Clause is designed to allow the president to fill vacancies that would otherwise require the advice and consent of the Senate when the Senate is not available to provide advice and consent. This case tests the pliability of that Clause.

The parties’ arguments turn on the plain language, meaning, and history of the Clause and presidential practice. In particular, the parties dispute (1) whether the Senate was on “the Recess” on January 4, 2012, when President Obama appointed the three members of the NLRB, (2) whether the vacancies on the NLRB “happen[ed] during the Recess of the Senate,” and (3) whether the president can exercise his recess-appointment authority when the Senate is convening every three days in pro forma sessions.

On each question, the parties also wrangle over separation-of-powers principles. In short, the government argues that the Senate should not be able to frustrate the president’s constitutional duty to execute the laws by holding up appointments by recessing with only pro forma sessions. Noel Canning counters that the president’s position represents a dramatic power grab over the recess appointment authority, at the expense of the Senate.

What is “the Recess”?

The government argues that the phrase “the Recess” applies to both an inter-session recess (that is, one between sessions of Congress) and an intra-session recess (that is, one during a session of Congress, as here). The government says that the definite article “the” does not change that. It contends that “the” is commonly used to refer to a category of events (and not a particular event, like “the [only inter-session] Recess”), even elsewhere in the Constitution itself. It also claims that the phrase “the Recess” was, by 1787, regularly used to describe the equivalent of intra-session breaks of the British Parliament, state legislatures, the Continental Congress, and even the Constitutional Convention.

The government argues that excluding intra-session recesses from the Clause would undermine its purposes. In particular, the government says that excluding intra-session recesses would prevent the president from filling vacant offices, and thus exercising his constitutional responsibility to take care that the laws be faithfully executed, whenever the Senate is unavailable to provide advice and consent for a significant period of time.

Finally, the government claims that long-standing practice supports intra-session recess appointments throughout the nation’s history, and even before 1943. (The government particularly takes on the court of appeals’ assumption that there were only a handful of intra-session recess appointments before 1943, suggesting that presidents before 1943 thought they lacked the power to make them.) The government says, contrary to the court of appeals’ assumption, that presidents made intra-session recess appointments “in every year before 1943 in which there was an intra-session recess of significant duration.” It claims that “[a]t least fourteen Presidents have, collectively, made at least 600 civilian appointments (and thousands of military ones) during intra-session recesses.” And it contends that the practice was endorsed in a 1921 attorney general opinion and described as “the accepted view” in a 1948 comptroller general opinion. It says that nearly all presidents after President Truman made intra-session recess appointments, and that opinions of the attorney general, the Office of Legal Counsel, and the United States Court of Appeals for the Eleventh Circuit all reaffirmed the validated of intra-session recess appointments during that most recent period.

Noel Canning argues that the plain language of the Clause means that the president can exercise his recess appointment power only during inter-session recesses. Noel Canning claims that the Clause links “the Recess” with the “next Session,” so that “the Recess” refers only to inter-session breaks. It says that the Clause makes “the Recess” and the “Session” alternating states, so that “the Recess” must fall between “Session[s],” that is, formal, numbered Sessions of the Senate (and not daily “sessions”). Stated only slightly differently, Noel Canning contends that the plain language means that the Senate cannot be in “the Recess” and “the Session” at the same time—a condition necessary to support the government’s reading.

Noel Canning argues that the original understanding and historical practice support its plain reading of the Clause. It says that its reading is supported by “every executive or congressional official to construe the Clause prior to 1948,” by early commentators, and by other ratification-era documents and provisions. As to the historical practice, it claims that no president other than Andrew Johnson even attempted to make a recess appointment during an intra-session recess before 1921.

Finally, Noel Canning argues that the government’s position is not supported by the text, original meaning, or historical practice. Instead, it contends, the government’s position is simply the latest in a relatively recent series of increasingly aggressive assertions by the executive branch of mid-session recess appointment power.

Did the Vacancies Happen During the Recess?

The government argues that the Recess Appointments Clause authorizes the president to fill vacancies that exist during the recess, and not just those that arose during the recess. The government claims that the phrase “Vacancies that may happen during the Recess” is ambiguous (as recognized by President Jefferson in 1802 and by Attorney General Wirt in 1823), but can reasonably be read to include vacancies that exist during the recess. It says that this reading best serves the Clause’s purposes, to allow the president to fill all vacancies that occur. It claims that the contrary reading would cause offices to remain vacant “solely because prior occupants died or resigned—or those offices were first established—shortly before, rather than shortly after, a recess began.

The government also argues that long-standing practice supports this reading. The government says that since the 1820s, the vast majority of presidents have made recess appointments to fill vacancies that arose before a recess and existed during the recess. It claims that this practice was supported by a series of attorney general opinions and every court of appeals prior to the D.C. Circuit’s ruling here. The government says that before 1823, contrary to the court of appeals’ assumption, there was no settled understanding of this issue. But it contends that “there were indications from each of the first four Presidents—including actual appointments by Washington, Jefferson, and Madison—that recess appointments can indeed be used to fill vacancies that pre-existed the recess.”

Noel Canning argues that the plain text supports its position. In particular, it says that the Clause’s requirement that the vacancy must “happen during” “the Recess” means that the vacancy must arise during the recess. It says that the government’s contrary reading would erase the phrase “may happen during” from the Clause.

Noel Canning argues that its reading is supported by the original understanding and historical practice. It says that the first four presidents understood that the Clause was limited to those vacancies that arose during the recess, as did the Senate and numerous courts until the late nineteenth century. It contends that the executive branch’s longstanding practice “has been more equivocal than [the government] lets on,” and that the “Senate’s resistance more robust.” But in any event, it claims, that the political branches’ practices cannot override the Clause’s plain language and its structural protection against presidential overreach.

Did This Break Constitute a Recess?

The government argues that the Senate’s 20-day break, with only fleeting pro forma sessions in which no business was to be conducted, was a “recess” under the Recess Appointments Clause. The government claims that both the Senate (since 1905) and the president (since 1921) have formally recognized that the Senate is in “recess” under the Clause when the Senate’s members do not have to attend sessions and when the Senate cannot receive communications from the president or participate in making appointments. The government contends that these conditions held during the 20-day period here, notwithstanding the periodic pro forma sessions.

The government argues that the mere possibility that the Senate might have overturned its unanimous consent agreement, recalled its members, and conducted business cannot change this. The government contends that if that possibility alone meant that the president could not make a recess appointment, then the recess appointment power would be dormant anytime the Senate might come back into session, including during traditional inter-session recesses.

The government argues that historical practice does not support the use of pro forma sessions to prevent the president from making recess appointments. The government says that no president has acknowledged that pro forma sessions would prevent him from making a recess appointment, and that there is no settled presidential acquiescence in the practice of using pro forma sessions to frustrate a president’s use of the recess appointment power. Moreover, the government claims that the use of pro forma sessions by the House and Senate to comply with the Adjournment Clause (which prevents either house from adjourning for more than three days without the consent of the other) does not provide precedent for the Senate’s use of pro forma sessions here. The government says that the better view of this practice is that pro forma sessions do not satisfy the Adjournment Clause.

Finally, the government argues that the Senate’s use of pro forma sessions to frustrate the president’s exercise of his recess appointment power disrupts the balance of powers in Article II. The government says that this gambit—which the Senate has used since 2007 “to string together breaks in business lasting as long as 47 days”—would undermine the president’s constitutional duty to “take Care that the Laws be faithfully executed.”

Noel Canning argues that the president cannot make recess appointments when the Senate convenes pro forma sessions every three days. It claims that the Senate has used pro forma sessions for a variety of purposes since 1854 (including for Adjournment Clause purposes), that the executive has recognized the validity of those sessions, and that presidents have historically refrained from recess appointments during pro forma sessions. Noel Canning contends that the executive branch previously acknowledged that pro forma sessions count under the Clause, and that this administration previously “expressly recognized that pro forma sessions preclude recess appointments.” (At oral argument in New Process Steel v. NLRB, 130 S. Ct. 2635, in 2010, Neal Katyal, then Principal Deputy Solicitor General, said, in response to a question from Chief Justice Roberts on the recess appointment power: “I think our office has opined the recess has to be longer than 3 days.” But just four days later, President Obama made a recess appointment to the NLRB.)

Noel Canning argues that pro forma sessions are actual and legitimate Senate sessions, with the capability of conducting business. Noel Canning says that this is so regardless of whether members have to attend. It also claims that the president has no authority to second-guess the Senate’s internal operations, including its use of pro forma sessions.

SIGNIFICANCE

This case threatens a key practice by presidents of both parties in filling executive vacancies in the face of an obstructionist Senate and ensuring the continued operations of executive departments. The appendices in the government’s merits brief, detailing recess appointments starting from the Washington administration, show just how widely this practice has been used—and how a rejection of the practice could threaten so many appointments and operations of the executive branch. The facts of this case well illustrate that threat: President Obama made his recess appointments to the NLRB in order to sidestep Senate obstructionism; without valid recess appointments, the NLRB would have had no authority to enforce the National Labor Relations Act.

But the case threatens more than just this particular NLRB. As the government writes in its certiorari brief, “[t]he decision potentially calls into question every final decision of the Board since January 4, 2012,” earlier Board orders, and the actions of “almost any federal officer who received a recess appointment during an intra-session recess, or who was appointed to fill a vacancy that did not first arise during the recess in which the appointment was made . . . .” Considering the number of recess appointments (again, identified in the appendices to the government’s merits brief), there may be numerous such actions across the federal bureaucracy.

On the other hand, the case threatens a key Senate tool in checking the president. The Senate’s practice of using pro forma sessions to frustrate the President’s use of the recess-appointment power could be a very effective way for some in the Senate (or even the House, by way of the Adjournment Clause, see below) to advance their own agendas by way of the appointment process.

Aside from its implications, this case marks the latest round in the escalating gamesmanship between both parties in Congress and the White House over executive nominees. That gamesmanship includes (as relevant here) the use of the filibuster in the Senate to frustrate presidential appointments; the president’s use of the recess-appointment power to sidestep a filibuster or other obstruction in the Senate; and congressional efforts to prevent the president from exercising the recess appointment power. Those efforts include pro forma sessions, as in this case, and even House efforts to prevent a recess in the Senate. (For example, in May and June, 2011, Republicans in the Senate and House urged the Speaker of the House John Boehner to “prevent any and all recess appointments by preventing the Senate from recessing for the remainder of the 112th Congress.” The House could do this, because the Adjournment Clause says that “Neither House, during the Session of Congress, shall, without the Consent of the other, adjourn for more than three days . . . .” Between May 12, 2011, and the end of that year, no concurrent resolution of adjournment was introduced in either chamber, and as a result the Senate held pro forma sessions every three days during extended breaks (rather than going on “recess.”) This case is just the latest move in this escalating struggle over nominations.

But the case is probably somewhat less significant than it was just a few months ago. That’s because the Senate’s abolishment of the filibuster in late 2012 for executive and lower court appointments removed a significant block to appointments—one that spurred the president’s use of the recess appointment authority in the first place. If the abolishment of the filibuster continues to mean that the president’s nominees can get a vote in the Senate, the president may not need to resort to the recess appointment power as much. (This could change if the Senate and the White House are controlled by different parties, so that a bare majority of the opposite party in the Senate could reject a nominee, even without resorting to the filibuster.)

There is a way that the Court could dodge the issue entirely. At least one amici, Professor Victor Williams, argued at the certiorari stage and again at the merits stage that the Court should dismiss the case as a nonjusticiable political question. If the Court so ruled, it would reverse the circuit court’s ruling on the constitutional question. That would mean that President Obama’s recess appointments to the NLRB would be valid, and that the circuit court’s ruling on the merits (against Noel Canning) would stand.

 

January 10, 2014 in Appointment and Removal Powers, Cases and Case Materials, Executive Authority, News | Permalink | Comments (0) | TrackBack (0)

Tuesday, January 7, 2014

District Judge Says Chicago's Gun-Sales Ban Violates Second Amendment

Judge Edmond E. Chang (N.D. Ill.) ruled yesterday in Illinois Association of Firearms Retailers v. City of Chicago that Chicago's ban on gun sales violates the Second Amendment. 

Chicago Municipal Code Section 8-20-100 says, in relevant part, that "no firearm may be sold, acquired or otherwise transferred wtihin the city, except through inheritance of the firearm."  Firearms dealers and would-be gun buyers sued, arguing that it violated the Second Amendment.  Judge Chang agreed, granting summary judgment in their favor.

The court used the two-step process sanctioned by the Seventh Circuit: first, the court determined whether the ban fell within the Second Amendment as it was understood in 1791 (when the Bill of Rights was ratified) or in 1868 (when the Fourteenth Amendment was ratified); second, the court determined whether the ban satisfies a varying, but heightened, level of scrutiny.

As to step one, the court concluded that "[t]he City's proffered historical evidence fails to establish that governments banned gun sales and transfers at the time of the Second Amendment's enactment," and therefore the Second Amendment applies.  As to step two, the court applied "not quite strict scrutiny" (because the ban "prevents Chicagoans from fulfilling, within the limits of Chicago, the most fundamental prerequisite of legal gun ownership--that of simple acquisition") and that the ban didn't sufficiently serve the city's interests in reducing criminals' access to guns, restricting gun acquisition in the illegal market, or eliminating dangerous gun stores from Chicago.

Judge Chang gave the city "limited time, before the judgment becomes effective, to consider and enact other sales-and-transfer restrictions short of a complete ban," and invited the city to move for a stay pending appeal.

January 7, 2014 in Cases and Case Materials, Fundamental Rights, News, Second Amendment | Permalink | Comments (0) | TrackBack (0)