Friday, December 15, 2017
Judge Wendy Beetlestone (E.D. Pa.) ruled today that the Commonwealth of Pennsylvania was likely to succeed on the merits of its challenge to the Trump Administration's interim final rules rolling back Obamacare's contraception mandate. Judge Beetlestone issued a temporary injunction, halting enforcement of the rules.
The case, Pennsylvania v. Trump, arose when the administration issued two interim final rules that all but undid the Affordable Care Act's contraception mandate for any organization that didn't want to enforce it. One rule, the Religious Exemption Rule, said that any organization could claim an exemption based on a sincerely held religious belief; the other, the Moral Exemption Rule, said the same thing for any organization that claimed a sincere moral objection. Under the rules, objecting organizations didn't have to seek an accommodation; they could simply drop coverage (with ERISA notice to their employees).
Pennsylvania sued, arguing that the IRFs violated the Administrative Procedure Act, Title VII of the Civil Rights Act , equal protection, and the Establishment Clause.
Judge Beetlestone first ruled that the Commonwealth had standing--for exactly the same reasons why Texas had standing to challenge President Obama's DAPA program in Texas v. United States:
There is no daylight between the 2015 Texas suit against the federal government and the current Commonwealth suit against the federal government. Like Texas, the Commonwealth challenges agency action in issuing regulations--here, the New IRFs. It is all the more significant that the Commonwealth, like Texas before it, sues to halt affirmative conduct made by a federal agency. . . . Furthermore, like Texas and Massachusetts [in Massachusetts v. EPA], the Commonwealth seeks to protect a quasi-sovereign interest--the health of its women residents. . . . According to the Commonwealth . . . the Agencies' New IRFs will allow more employers to exempt themselves from the ACA's Contraceptive Mandate. Consequently, the Commonwealth contends that Pennsylvania women will seek state-funded sources of contraceptive care. Such a course of action will likely cause the Commonwealth to expend more funds to protect its quasi-sovereign interest in ensuring that women residents receive adequate contraceptive care.
She went on to rule that the IRFs likely violated the APA, for two reasons. First, the administration violated notice-and-comment rules in issuing the IRFs. The court rejected the government's argument that it had statutory authority to bypass notice-and-comment procedures, and that special circumstances justified bypassing those procedures. Next, the IRFs violated federal law, the ACA. In particular, the ACA mandates coverage for women's preventative care, and doesn't provide an exception for religious or moral beliefs. Moreover, the accommodation process doesn't violate the Religious Freedom Restoration Act (as the government maintained), and so there's no RFRA reason for the Religious Exemption Rule. (The government didn't even try to argue that the RFRA mandated the Moral Exemption Rule.)
Because the court held that the Commonwealth would likely succeed on its APA claims, it didn't rule on the constitutional claims.
The court went on to conclude that the Commonwealth demonstrated the other elements of a preliminary injunction, too.
Thursday, December 14, 2017
The Ninth Circuit this week ruled that the Secretary of the Interior could withdraw, for up to twenty years, over one million acres of land near Grand Canyon National Park from new uranium mining claims. The ruling deals a blow to mining companies and local governments who brought the lawsuit. But the blow may be temporary, if the current administration reverses course and allows mining.
The case, National Mining Association v. Zinke, arose when then-Secretary Salazar exercised his authority under the Federal Land Policy and Management Act and moved to withdraw the land from mining claims. Under the Act, the Interior Secretary has authority to withdraw large tracts of federal land from mining, so long as the Secretary publishes a notice in the Federal Register, affords an opportunity for public hearing and comment, and obtains consent to the withdrawal from any other department or agency involved in the administration of the relevant lands. Moreover, the Secretary can only withdraw land for 20 years, max, and has to report to Congress.
The Act also contains a legislative veto, allowing Congress, by concurrent resolution only (and not with a presidential signature), to veto the Secretary's withdrawal.
As soon as Salazar filed his Notice of Intent in the Federal Register, mining companies and local governments sued, arguing, among other things, that the Secretary lacked authority under the Act. Their theory went like this: The Act's legislative veto provision is unconstitutional under Chadha; the legislative veto is not severable from the rest of the Act (including the Secretary's authority to withdraw federal land); and therefore the unconstitutionality of the legislative veto provision dooms the entire withdrawal provision of the Act, including the Secretary's authority.
The Ninth Circuit rejected this theory. The court ruled that the legislative veto provision was severable, and didn't affect the Secretary's authority. Therefore, the Secretary could go ahead and initiate the withdrawal, pursuant to requirements under the Act, irrespective of the legislative-veto's invalidity.
The court went on to reject the several merits arguments against the Secretary's exercise of authority.
Wednesday, December 13, 2017
The Third Circuit ruled that school board officials are entitled to qualified immunity from a First Amendment claim by a disruptive speaker who the board excluded from future meetings. But the court also ruled that immunity did not extend to the school board itself.
The ruling sends the case back to the district court for further proceedings on municipal liability.
The case, Barna v. Board of School Directors of the Panther Valley School District, arose when the school board excluded speaker Barna from future meetings because he had made threatening and disruptive comments at earlier meetings. After giving Barna a second chance, which he blew, the board's attorney sent Barna a letter barring him from attending all board meetings or school extracurricular activities because his conduct had become "intolerable, threatening and obnoxious" and because he was "interfering with the function of the School Board." The board permitted Barna to submit written questions, however.
Barna sued individual board officials and the board itself for violating his free speech. The district court granted qualified immunity to all defendants and dismissed the case.
The Third Circuit partially reversed. As to the individual board officials, the court said that Barna's right to free speech wasn't clearly established at the time, because Barna cited no Supreme Court authority saying otherwise, and because Fourth Circuit precedent went against him:
We therefore conclude that, given the state of the law at the time of the Board's ban, there was, at best, disagreement in the Courts of Appeals as to the existence of a clearly established right to participate in school board meetings despite engaging in a pattern of threatening and disruptive behavior. Even if a "right can be 'clearly established' by circuit precedent . . . there does not appear to be any such consensus--much less the robust consensus--that we require to deem the right Barna asserts here as clearly established.
While the court didn't rule on the merits--it didn't have to in order to grant qualified immunity, because it concluded that a right to free speech wasn't clearly established at the time--it noted that it had "twice upheld the temporary removal of a disruptive participant from a limited public forum like a school board meeting." The difference in this case: Barna's ban was permanent.
As to the board, the court reversed. The court noted that under Owen v. City of Independence municipalities do not enjoy qualified immunity from suit for damages under Section 1983. The court sent the issue back to the district court for determination whether the action was a pattern or practice under Monell and, if so, a determination on the merits.
Thursday, November 30, 2017
The en banc D.C. Circuit unanimously ruled this week that FECA's per-election base limits on campaign contributions don't violate free speech.
The ruling could give the Supreme Court a chance to reevaluate its stance on the constitutionality of base contributions, or at least per-election base contributions, in light of its most recent ruling on contributions, McCutcheon v. FEC. The Court in that case held that aggregate limits on base contributions violate free speech, even if base contributions themselves don't.
The plaintiffs in Holmes v. FEC challenged FECA's $2,600 base limit per candidate per election. The law means that a person can contribute up to $2,600 to a candidate in a primary, another $2,600 to that candidate in the general, and yet another $2,600 to that candidate in any runoff. In the usual course of things (without a runoff) this allows a person to contribute up to $5,200 to a candidate for the whole cycle.
The plaintiffs claimed that per-election restriction violated free speech, although they didn't take on all base limits. In other words, they wanted to contribute $0 to their favored candidates in the primaries, but $5,200 in the generals. The per-election restriction prevented them from doing that, and they claimed that this violated the First Amendment.
The D.C. Circuit disagreed. Citing Buckley v. Valeo (upholding per-election base limits against a free speech challenge, but not ruling specifically on the per-election nature of them) the court said that Congress's decision in FECA to create per-election restrictions (and not entire cycle restrictions) was a permissible way to implement base limits. In short, the court said that Congress had to create some timeframe for base contribution restrictions--because that's how base contributions work--and a per-election timeframe doesn't seem unreasonable. Said the court:
Contrary to plaintiffs' account of FECA, there is no $5,200 base contribution ceiling split between the primary and general elections. Instead, the Act by its terms established a $2,000 contribution limit, adjusted for inflation, which 'shall apply separately with respect to each [primary, general, and runoff] election.'
. . .
To impose a meaningful contribution ceiling, then, Congress has no choice but to specify some time period in which donors can contribute the maximum amount. There are a host of alternatives in that regard.
. . .
Just as Buckley did not require Congress to explain its choice of $1,000 rather than $2,000 as itself closely drawn to preventing corruption, we see no basis for requiring Congress to justify its choice concerning the other essential element of a contribution limit--its timeframe--as itself serving that interest.
Wednesday, November 29, 2017
Judge Colleen Kollar-Kotelly (D.D.C.) denied individual defendants' renewed motion to dismiss a plaintiff's Bivens claim for retaliatory prosecution in violation of the First Amendment. The ruling, which applies the Supreme Court's ruling from this summer in Ziglar v. Abbasi, means that the plaintiff's First Amendment Bivens action can move forward. (This isn't a ruling on the merits; it only says that the plaintiff's claim survives a motion to dismiss in light of Abbasi.)
The ruling is notable, because the Court appeared to substantially restrict Bivens actions in Abbasi essentially to those very few situations where the Court has allowed a Bivens action. (We posted on this here.) But this ruling reads Abbasi differently--not to prohibit a Bivens action under the First Amendment.
The case, Loumiet v. United States, arose when an attorney for a target of an investigation by the Office of the Comptroller of the Currency complained to the OCC Inspector General that OCC investigators engaged in "highly unusual and disturbing" behavior during their investigation, including making racist comments to the target's staff. The OCC then initiated an enforcement proceeding against the plaintiff pursuant to the Financial Institutions Reform, Recovery, and Enforcement Act, claiming that the plaintiff had "knowingly or recklessly . . . breach[ed his] fiduciary duty," and as a result "caused . . . a significant adverse effect" on the target of the investigation. An ALJ recommended dropping the matter, and the OCC agreed. The plaintiff filed for attorney's fees under the Equal Access to Justice Act and won in the D.C. Circuit. That court ruled that "the Comptroller was not 'substantially justified' in bringing the underlying administrative proceedings against [the plaintiff]."
The plaintiff then brought a Bivens claim for retaliatory prosecution in violation of the First Amendment, among other claims. The court earlier declined to dismiss the case, but the individual defendants asked the court to reconsider after Abbasi came down this summer.
The court in this ruling again declined to dismiss the case.
The court assumed, without deciding, that the case raised a "new context" under Bivens. (The court said that the D.C. Circuit hadn't yet had an opportunity to rule on Abbasi, so it couldn't really say what a "new context" was in the post-Abbasi world of Bivens--in particular, whether Abbasi set a new standard for "new context.") The court went on to say that special factors did not counsel against a Bivens remedy:
Unlike the facts in Abbasi, this is not a case in which "high officers who face personal liability for damages might refrain from taking urgent and lawful action in a time of crisis." Rather, Plaintiff's prosecution was separate from, and subsequent to, the OCC's enforcement action against his bank client; the prosecution against Plaintiff does not seem to have been "urgent," driven by "crisis," or, for that matter, necessary to the underlying enforcement action against Plaintiff's client. Indeed, the Court already made a fact-specific inquiry that a Bivens claim will not deter lawful enforcement activity.
Finally, the court said that the defendants couldn't show that the plaintiff had alternative relief, here under the FIRREA, the Administrative Procedure Act, or the Equal Justice Act.
U.S. District Judge Timothy J. Kelly (D.D.C.) ruled in favor of the President in the ongoing dispute over who is acting director of the Consumer Financial Protection Bureau. We last posted here; WaPo has a story here.
Judge Kelly ruled from the bench against Leandra English, the CFPB deputy director, and declined to unseat Mick Mulvaney, President Trump's appointee.
This is hardly the final say in the matter. We'll post on any written decision when it's released.
Monday, November 27, 2017
As has been widely reported, two acting directors of the Consumer Financial Protection Bureau showed up for work today. One told employees to ignore the other; the other sued. (Politico reports on the confusion at the Bureau here.)
Leandra English, the former deputy director appointed by outgoing Director Richard Cordray, was in line for the job under a Dodd-Frank provision that says that the deputy director becomes acting when the director leaves. But Mick Mulvaney was also in line for the job after President Trump appointed him pursuant to the Federal Vacancies Reform Act. We outlined the competing appointment provisions in a post yesterday. OLC came down on the President's side; so did the CFPB general counsel (who was appointed by Cordray)--and for the same reasons as the OLC.
English sued in the D.C. District Court seeking declaratory and injunctive relief. Here's the gist of her argument:
The President apparently believes that he has authority to appoint Mr. Mulvaney under the Federal Vacancies Reform Act of 1988. But the Vacancies Act, by its own terms, does not apply where another statute "expressly . . . designates an officer or employee to perform the functions and duties of a specified office temporarily in an acting capacity"--which is exactly what the Dodd-Frank Act does. The President's interpretation of the FVRA runs contrary to Dodd-Frank's later-enacted, more specific, and mandatory text. The President's stance is also difficult to square with the relevant legislative history: An earlier version of the Dodd-Frank Act, which would have specifically allowed the President to use the Vacancies Act to temporarily fill the office, was eliminated and replaced with the current language designating the Deputy Director as the Acting Director. And the President's attempt to appoint a still-serving White House staffer to displace the acting head of an independent agency is contrary to the overall design and independence of the Bureau.
Tuesday, November 21, 2017
Judge William H. Orrick (N.D.Cal.) granted summary judgment for the plaintiffs and issued a nationwide permanent injunction against the defunding and enforcement provisions of President Trump's sanctuary cities executive order.
The ruling deals a serious blow to the President and his efforts to rein in sanctuary cities. This ruling goes to the EO itself, not AG Sessions's interpretation and enforcement of the EO, as the more recent temporary injunctions did. We posted most recently on the case in Philadelphia here.
Judge Orrick noted that nothing had changed from his earlier temporary injunction. He summarized his ruling this way:
The Constitution vests the spending powers in Congress, not the President, so the Executive Order cannot constitutionally place new conditions on federal funds. Further, the Tenth Amendment requires that conditions on federal funds be unambiguous and timely made; that they bear some relation to the funds at issue; and that they not be unduly coercive. Federal funding that bears no meaningful relationship to immigration enforcement cannot be threatened merely because a jurisdiction chooses an immigration enforcement strategy of which the President disapproves. Because the Executive Order violates the separation of powers doctrine and deprives the Counties of their Tenth and Fifth Amendment rights, I GRANT the Counties' motions for summary judgment and permanently enjoin the defunding and enforcement provisions of Section 9(a).
Recall that Section 9(a) says that "[i]n furtherance of [the policy to ensure that states and their subdivisions comply with 8 U.S.C. Sec. 1373], the [AG] and the Secretary [of Homeland Security] . . . shall ensure that jurisdictions that willfully refuse to comply with 8 U.S.C. Sec. 1373 (sanctuary jurisdictions) are not eligible to receive Federal grants, except as deemed necessary for law enforcement purposes . . . ." Importantly, the EO didn't specify which federal grants were at risk; it apparently applied to all federal grants.
AG Sessions tried to restrict the EO to JAG/Byrne grants from the Justice Department, but Judge Orrick had nothing of it: "The AG Memorandum not only provides an implausible interpretation of Section 9(a) but is functionally an 'illusory promise' because it does not amend Section 9(a) and does not bind the Executive Branch. It does not change the plain meaning of the Executive Order."
Judge Orrick said that a nationwide injunction was appropriate "[b]ecause Section 9(a) is unconstitutional on its face, and not simply in its application to the plaintiffs here . . . ."
Thursday, November 16, 2017
Judge Michael Baylson (E.D. Pa.) granted a preliminary injunction yesterday against the government's enforcement of it's anti-sanctuary cities moves against Philadelphia, and enjoyed AG Sessions from denying the city's Byrne JAG grant for FY 2017.
The ruling is a major victory for the city, and a significant strike against the federal crack-down on sanctuary cities. It follows a similar, but less sweeping, ruling in the Chicago case.
Judge Baylson ruled that AG Sessions's order to condition DOJ Byrne JAG grants on Philadelphia's agreement to give federal authorities notice when city officials detain an unauthorized alien (the "notice condition"), to give federal authorities access to city jails (the "access condition"), and to certify that it complies with 8 U.S.C. Sec. 1373 likely violate federal law and the Constitution.
In particular, Judge Baylson ruled that the conditions violate the Administrative Procedure Act, because they're arbitrary and capricious. He also ruled that they "are improper under settled principles of the Spending Clause, the Tenth Amendment, and principles of federalism." On the constitutional issues, he said that the conditions are not sufficiently related to the purposes of the Byrne JAG grant program (in violation of the conditioned-spending test under South Dakota v. Dole), because "[i]mmigration law [the purpose of the conditions] has nothing to do with the enforcement of local criminal laws [the purpose of Philadelphia's Byrne JAG grant]." He also said that the conditions were ambiguous (also in violation of South Dakota v. Dole), because "the Access and 48-hours Notice Conditions cannot have been unambiguously authorized by Congress if they were never statutorily authorized," and the "malleable language [of Section 1373] does not provide the 'clear notice that would be needed to attach such a condition to a State's receipt of . . . funds.'" (The court also said, but "[w]ithout specifically so holding," that "Philadelphia is likely to succeed on the merits of its Tenth Amendment challenge" to the conditions, because the notice and access conditions "impose affirmative obligations on Philadelphia, with associated costs of complying with such conditions," and because the compliance condition (on 1373) "would inherently prevent Philadelphia from, among other things, disciplining an employee for choosing to spend her free time or work time assisting in the enforcement of federal immigration laws" (and thus commandeers the city).
Finally, Judge Baylson noted that Philadelphia isn't a sanctuary city, anyway--at least not in the way defined by federal law. In particular, he wrote that the city "substantially complies with Section 1373."
Thursday, November 9, 2017
A sharply divided Foreign Intelligence Surveillance Court, sitting en banc for the first time in its history, ruled that the ACLU and Yale Law School's Media Freedom and Information Clinic have standing to seek redacted portions of FISC rulings that set out the legal basis for a government bulk-data-collection program. The ruling means that the movants' efforts to obtain the rulings can move forward, although it does not say anything about the merits.
The case arose after two newspapers in June 2013 released classified information about a surveillance program run by the government since 2006. The DNI then declassified further details about the bulk-data-collection program and acknowledge that the FISC approved much of it under Section 215 of the Patriot Act, the "business records" provision.
The movants filed a motion with the FISC, asking the FISC to unseal its opinions on Section 215. They argued that because officials had revealed key details of the program, there was no need to keep the legal justification for it secret, and moreover that they had a First Amendment right of access under Richmond Newspapers v. Virginia.
The government released more information about the program, including a white paper that explained how FISC judges periodically approved the directives to telecommunications providers to produce bulk telephonic metadata. At the same time, the FISC asked the government to review several of its opinions and then released redacted versions of those opinions relating to Section 215.
The movants then filed another motion to unseal classified sections of the FISC rulings. The government provided yet more redacted FISC opinions and moved to dismiss the second motion. The government argued that it would merely duplicate already-released opinions, and that the movants lacked standing.
As to standing, the FISC disagreed. In particular, the court said that the movants had a concrete and actual harm, "because the opinions are currently not available to them. . . . [M]oreover, it is sufficiently 'particularized' from that of the public because of Movants' active participation in ongoing debates about the legal validity of the bulk-data-collection program." The court emphasized that for the purpose of determining standing, it "must . . . assume that Movants are correct that they have a constitutional right of access--so long as that right is cognizable." In other words, the court said that the movants' standing couldn't turn on the viability of their substantive claim.
The dissent argued that "[n]o member of the public would have any 'right' under the First Amendment to ask to observe a hearing in a FISC courtroom. Still less should we be inventing such a 'right' in the present circumstances." Moreover, the dissent said that the movants, instead of seeking access to judicial proceedings, really only wanted the FISC "to rule that they have a 'right' of access to the information classified by the Executive Branch and that Executive Branch agencies must defend each redaction in the face of Movants' challenge." The dissent said that the movants therefore had no legally protected interests.
Saturday, October 28, 2017
Judge Ellen Segal Huvelle (D.D.C.) ruled this week that the Defense Department's enhanced vetting policies for noncitizen-soldiers who seek to apply for expedited citizenship under federal law likely violates the Administrative Procedure Act. The court also provisionally certified a class in the case, and certified a class in a related case challenging a different aspect of the same problem.
The rulings are significant, even if preliminary, wins for the two groups of noncitizens soldiers in their efforts to apply for citizenship by virtue of their military service. The rulings are also a significant setback for the DOD's efforts to ramp-up security screenings for noncitizen soldiers before they can apply for citizenship, and yet another setback for the administration in its immigration policies.
One ruling, Kirwa v. DOD, says that the DOD's failure to issue a certain form, the N-426, to noncitizen reservists who applied for service before October 13, 2017, and who were (and are) awaiting assignment to basic training likely violates the APA. (The N-426 is a form that simply certifies a noncitizen-soldier's military service. It's a requirement for a noncitzien reservists and active-duty soldiers to apply for an expedited path to citizenship under federal law.) That same ruling also provisionally certifies a class; a related ruling, Nio v. DOD, later this week certified a class in a different case (more below).
Kirwa arose when DOD changed course in the spring of 2017 and began to decline requests for a certain form, the N-426, which simply certifies a noncitizen soldier's military service as a prerequisite to his or her citizenship application, to noncitizen reservists who were awaiting assignment to basic training. (DOD previously issued the N-426 to noncitizen reservists during this period, although an earlier policy change, in September 2016, led to some earlier delays in issuing the form.) Plaintiffs sued to get the DOD to issue the forms, but DOD then issued new policy guidance on October 13, 2017. The new guidance imposed additional security-vetting requirements before the DOD would issue the N-426 to noncitizen-reservists, further delaying the plaintiffs' ability to apply for citizenship (and subjecting them to deportation proceedings in the meantime). The plaintiffs amended their complaint and motion for class certification based on the new guidance.
The court ruled that the plaintiffs were likely to succeed on the merits of their Administrative Procedure Act claim, because the "DOD offered no reasoned explanation for this change, thereby suggesting that DOD's decision was an arbitrary and capricious one." (The court ruled that it could hear the case under the APA, despite the government's claim that the APA didn't reach this kind of decisionmaking and despite the government's claim that the case touched on national security.) Moreover, the court said that the October 13 guidance changed the ground-rules for the plaintiffs, who enlisted based on very different policies and processes for noncitizen-reservists to apply for expedited citizenship. The court granted the plaintiffs' motion for a preliminary injunction and provisionally certified a class (noting that it included about 2,000 individuals).
In Nio, the court certified a class of noncitizen-soldiers who had a completed N-426 form and applied for expedited citizenship with DHS, but were held up because of DOD's enhanced vetting processes. (The court noted that there are about 400 to 500 members of the class.)
Wednesday, October 25, 2017
Judge Vince Chhabria (N.D. Cal.) today denied the states' motion for a preliminary injunction in the their case against the Trump administration for halting cost-sharing reduction ("CSR") payments to insurance companies on the Obamacare exchanges. We posted on the complaint here.
Judge Chhabria ruled that the plaintiff-states did not demonstrate a likelihood of success on the merits, because Congress didn't appropriate funds for the CSRs, even though the ACA requires that the government pay them:
In sum, the [ACA] requires the federal government to pay insurance companies to cover the cost-sharing reductions. The federal government is failing to meet that obligation. If there was no permanent appropriation in the Act, Congress is to blame for the failure, because it has not been making annual appropriations for CSR payments. The Administration cannot fix Congress's error, because the Constitution prevents the Administration from making payments on its own. In contrast, if the Act created a permanent appropriation, the Administration is legally at fault for the federal government's failure to meet its obligation under the Act to make CSR payments. On the merits, it's a close and complicated question, even if the Administration may seem to have the better argument at this stage.
As to the other preliminary injunction factors, Judge Chhabria noted that most of the states in the lawsuit have taken measures with the insurance companies to offset the impact of the administration's decision not to pay CSRs to the consumers. States did this by encouraging insurance companies to increase premiums in certain plans so that consumers would qualify for higher premium tax credits (which, unlike the CSRs, have a permanent appropriation under the ACA). For most consumers, the court said, the higher premium tax credits would well offset any harm based on the administration's decision not to pay CSRs.
The ruling means that the court won't require the administration to make CSR payments, at least for now.
Monday, October 16, 2017
As soon as President Trump announced last week that his administration would halt cost-sharing reimbursement payments to insurers on the Obamacare exchanges, 18 states and the District of Columbia sued, arguing that the move violates federal law and the Take Care Clause of the Constitution.
The cost-sharing reimbursements ("CSRs") are designed to reimburse insurers for extending insurance to low- and moderate-income individuals and families on the Obamacare exchanges. Recall that while the ACA requires the government to pay CSRs, Congress failed to appropriate funds for them under President Obama. The President nevertheless paid them, and the House of Representatives sued. Judge Rosemary Collyer (D.D.C.) ruled in favor of the House and stopped the payments. The D.C. Circuit, however, held the case in abeyance as the Trump administration decided whether to stop the payments. We posted most recently here.
The Trump administration continued the CSRs--until last week.
Eighteen states and the District of Columbia immediately brought suit in the Northern District of California. The complaint points out that 42 U.S.C. Sec. 18071(c)(3)(A) says that the Secretary "shall make periodic and timely payments [CSRs]" to the insurers and argues that the President's decision not to make payments violates the Administrative Procedure Act and the Take Care Clause. The complaint also catalogues the familiar and many ways that the Trump administration is actively undermining the ACA, and argues that these, too, violate the Take Care Clause.
The lawsuit pits the fact that the ACA requires CSRs against the fact that Congress declined to fund them, against the backdrop of the well-integrated and complementary provisions in the ACA, which could all fall apart without the CSRs. When Judge Collyer address these issues, she wrote,
Nothing in Section 1402 prescribes a "periodic and timely payment" process, however. Nor does Section 1402 condition the insurers' obligation to reduce cost sharing on the receipt of offsetting payments.
Such an appropriation [for CSRs] cannot be inferred [from the integration between refundable tax credits, which were funded by Congress, and CSRs, which were not], no matter how programmatically aligned the Secretaries may view [those sections]. . . .
Payment out [CSRs] without an appropriation thus violates the Constitution. Congress authorized reduced cost sharing but did not appropriate monies for it, in the FY 2014 budget or since. Congress is the only source for such an appropriation, and no public money can be spent without one.
Thursday, October 12, 2017
The en banc Ninth Circuit ruled this week that a denial of a zoning permit to open a gun store did not violate the Second Amendment rights of local residents (to buy guns) or the gun shop (to sell them).
The case, Teixeira v. County of Alameda, arose when the unincorporated county denied a conditional use permit to Teixeira to open a gun shop under a county ordinance. The ordinance say that firearms retailers can't operate within 500 feet of residential districts, schools and day-cares, other firearm retailers, and liquor stores. After some back-and-forth, the Zoning Board found that Teixeira's proposed shop was within 500 feet of two homes, and so denied the permit.
Teixeira sued, arguing that the ordinance requiring a conditional use permit violated his own Second Amendment right (to sell) and the Second Amendment rights of county residents (to buy). The en banc court rejected these claims.
The court ruled first that the plaintiffs failed to plausibly allege that the ordinance impeded any county resident from buying a gun:
Alameda County residents may freely purchase firearms within the County. As of December 2011, there were ten gun stores in Alameda County. Several of those stores are in the non-contiguous, unincorporated portions of the County. In fact, Alameda County residents can purchase guns approximately 600 feet away from the proposed site of Teixeira's planned store, at a Big 5 Sporting Goods Store.
The court therefore held that the ordinance did not violate the Second Amendment rights of county residents to buy.
As to the gun-store owners' right to sell, the court surveyed the text and history of the Second Amendment and concluded that it did not protect the right to sell firearms. "[T]he right of gun users to acquire firearms legally is not coextensive with the right of a particular proprietor to sell them." (The court rejected an analogy to the First Amendment for booksellers, writing that "bookstores and similar retailers who sell and distribute various media, unlike gun sellers, are themselves engaged in conduct directly protected by the First Amendment.") Because the ordinance didn't restrict Second Amendment rights, the court said it was "necessarily allowed by the Amendment."
Wednesday, October 11, 2017
The Ninth Circuit ruled yesterday that California's prorator license law likely violates the Dormant Commerce Clause. In the same ruling, the court held that California's mandatory disclosure requirements likely did not violate the First Amendment, and that the case did not warrant Younger abstention. The court sent the case back for further proceedings.
The case, Nationwide Biweekly v. Owen, arose when California prosecutors and regulators targeted Nationwide Biweekly Administration for fraud investigations involving one of its mortgage-payoff products. Here's how it works: a consumer would pay to Nationwide his or her monthly mortgage bill every two weeks, instead of paying to the lender directly every month. Nationwide would then pay the lender every month. This meant that a consumer would pay to his or her lender, through Nationwide, an extra monthly payment each year and thus pay off the loan sooner. Nationwide advertised the product as a "100% savings," but failed adequately to disclose the discount rate (based on the time-value of money) and fees for the product. So what appears to be a cost-free (and thus savings-only) product in fact is not cost-free.
The Monterey County District Attorney's Office sent Nationwide a letter about the practice and alleged that Nationwide was violating several California laws. In particular, the DA's office wrote that Nationwide was violating two provisions that required it to say that it's not affiliated with the lender in any solicitation to consumers for its product. The letter also said that Nationwide was violating California's "prorator" registration law, which required a "prorator" (a "person who, for compensation, engages in whole or in part in the business of receiving money or evidences thereof for the purpose of distributing the money or evidences thereof among creditors in payment or partial payment of the obligations of the debtor") to obtain a license. But under California law, such a license is only available to a corporation if the corporation is "organized under the laws of this State for that purpose." The Commissioner later sent Nationwide a letter notifying the corporation that it was investigating Nationwide's unlicensed business activity.
Nationwide filed suit in the Northern District, seeking to enjoin enforcement of the disclosure requirements by the DA. A Nationwide subsidiary later filed suit in the Northern District seeking to enjoin enforcement of the registration requirement against the Commissioner. The court rejected Nationwide's motion for a preliminary injunction in both cases, and Nationwide filed notices of appeal.
About a month after the opening appellate briefs were filed, the DA and the Commission filed a joint enforcement suit in California Superior Court. The district court dismissed both federal cases under Younger, and Nationwide appealed.
The Ninth Circuit ruled first that Younger abstention was not appropriate, because "before the date that the state case was filed, the district court had already conducted proceedings of substance on the merits." In particular, the court "spend a substantial amount of time evaluating the merits of the cases in considering and denying (in a detailed and reasoned order) Nationwide's motions for preliminary injunctions."
The court went on to hold that Nationwide was unlikely to succeed on its First Amendment claim. It ruled that under Zauderer, the "required disclaimers--short, accurate, and to the point--are reasonably related to California's interest in preventing . . . deception."
Finally, the court said that California's licensing requirement likely violated the Dormant Commerce Clause, because California's requirement makes in-state incorporation a prerequisite to getting a license to engage in interstate commerce.
Judge Montgomery argued in dissent that the federal proceedings were still at an embryonic stage and the court should have abstained under Younger.
In an open letter to Chief Justice Roberts, the President of the American Sociological Association, Eduardo Bonilla-Silva, responded to the Roberts's comment during the Gill v. Whitford oral argument that social science data regarding partisan gerrymandering was "sociological gobbledygook."
After noting that during the oral argument "Justices Kagan and Sotomayor subsequently expressed concern about your statement and spoke to the value of social science measures," President Bonilla-Silva continued:
In an era when facts are often dismissed as “fake news,” we are particularly concerned about a person of your stature suggesting to the public that scientific measurement is not valid or reliable and that expertise should not be trusted. What you call “gobbledygook” is rigorous and empirical. The following are just a few examples of the contributions of sociological research to American society that our members offered in response to your comment:
- Clear evidence that separate is not equal
- Early algorithms for detecting credit card fraud
- Mapped connections between racism and physiologic stress response
- Network analysis to identify and thwart terror structures and capture terrorists
- Pay grades and reward systems that improve retention among enlisted soldiers
- Modern public opinion polling
- Evidence of gender discrimination in the workplace
- Understanding of the family factors that impact outcomes for children
- Guidance for police in defusing high-risk encounters
- Strategies for combatting the public health challenge of drug abuse
Should you be interested in enhancing your education in this area, we would be glad to put together a group of nationally and internationally renowned sociologists to meet with you and your staff. Given the important ways in which sociological data can and has informed thoughtful decision-making from the bench, such time would be well spent.
Indeed, during the oral argument Chief Justice Roberts did comment that his "goobledygook" perspective might be attributable to "simply my educational background."
There has not yet been a reported response from the Chief Justice.
Thursday, September 28, 2017
The Court today agreed to take up a First Amendment challenge to a public sector union fair-share law in Janus v. AFSCME. The case pits non-members' First Amendment right not to pay dues for a union's collective bargaining activities (even if they benefit from those activities) against a union's interest in collecting dues for its collective bargaining efforts that everyone benefits from in a union shop.
This isn't the first time the Court has considered the issue, not by a long shot. The Court originally upheld fair-share laws--state requirements that non-members pay union dues for collective bargaining (but not for a union's political activities)--in 1977 in Abood v. Detroit Board of Education. In that case, the Court held that a state's interests in avoiding non-union-member free-riders and labor harmony permitted a state to require non-members to pay a "fair share" of a union's collective bargaining activities. (Under federal law, the union has to represent even non-members in a union shop.)
But more recently, the Court has hinted in a couple of cases that it's ready to reconsider Abood and overturn fair share laws under the First Amendment. A case, Friedrichs v. California Teachers Association, was teed up for just such a ruling when Justice Scalia passed away. When the 8-member Court decided Friedrichs, it deadlocked, leaving a Ninth Circuit ruling upholding fair share in place.
At the time, Senator Mitch McConnell was refusing to give Judge Garland, President Obama's nominee to replace Justice Scalia, a hearing in the Senate. McConnell famously waited President Obama's term out, and the Senate then confirmed President Trump's nominee, Neil Gorsuch.
With Justice Gorsuch on board, the Court now agreed to hear another case testing fair share, Janus. And that doesn't bode well for fair share laws and public sector unions. If Justice Gorsuch votes with the conservatives (who all presumably would have voted against fair share in Friedrichs), as seems likely or even certain, it'll mark the end of fair share and the likely demise of public sector unions. That's because if the Court strikes fair share, non-members in a union shop will have no requirements and few incentives to pay for the union's collective bargaining activities that benefit them. And without a requirement or incentive to pay fair share, many won't. And seeing that non-members can free ride on the union (because even non-members benefit from a union's collective bargaining activities), members will likely drop out to free ride, too. The siphoning of dues-paying non-members and members will leave the union with less and less resources to support collective bargaining, potentially decimating public sector unions.
There's no guarantee, of course, that a Justice Garland, or any other Obama appointee, would have voted to uphold fair share laws. But with Justice Gorsuch filling Justice Scalia's seat, we can all but guarantee that fair share will go away.
The Supreme Court today granted cert. in Janus v. American Federation, the case challenging union fair-share laws under the First Amendment.
The Court previously deadlocked on the issue. But with the addition of Justice Gorsuch, the Court can rule (likely against union fair share laws).
Tuesday, September 26, 2017
The Seventh Circuit ruled on Friday that Illinois's requirement that a new political party field candidates for all offices on the ballot in the relevant political subdivision violated the First Amendment. (H/t Aggie Baumert.) The ruling strikes the full-slate requirement for new parties, but leaves in place a signature requirement for them.
The case tested Illinois's requirement that a "new" political party field candidates for every office on the ballot in the political subdivision where it wishes to compete. (A "new" political party is one that's not (yet) "established" based on performance in prior elections.) New parties also have to obtain a minimum number of signatures on nominating petitions.
These rules meant that when the Libertarian Party sought to put up a candidate for Kane County auditor, it had to get the signatures, and it also had to put up candidates for circuit clerk, recorder, prosecutor, coroner, board chairman, and school superintendent.
The Party sued, arguing that the full-slate requirement (but not the signature requirement) violated the First Amendment.
The Seventh Circuit agreed. The court ruled first that the Party had standing, even though it didn't get enough signatures (and therefore couldn't get on the ballot even if it did field a full slate). The court explained that the Party's injury wasn't not getting on the ballot; it was the burden on its free association:
It isn't simply that the Party couldn't run its candidate for county auditor in the 2012 election. It's that Illinois law imposes a burdensome condition on the Party's exercise of its right of political association; that is, the Party's injury is its inability to access the ballot unless it fields a full slate of candidates. That requirement persists and stands as an ongoing obstacle to ballot access.
The court went on to rule that the full-slate requirement "severely burdens the First Amendment rights of minor parties, their members, and voters," thus triggering strict scrutiny. And under strict scrutiny, the court said that the full-slate requirement simply didn't meet the state's interests promoting political stability, avoiding overcrowded ballots, and preventing voter confusion--and, indeed, cut against those interests:
By creating unwanted candidacies, the requirement increases political instability, ballot overcrowding, and voter confusion. . . . Whatever its aim, the requirement forces a minor party to field unserious candidates as a condition of nominating a truly committed candidate. . . .
In reality, then, the full-slate requirement does not ensure that only parties with a modicum of support reach the ballot. Instead it ensures that the only minor parties on the ballot are those that have strong public support or are willing and able to field enough frivolous "candidates" to comply with the law.
Monday, September 25, 2017
The Supreme Court today took the travel ban arguments off its oral argument calendar. The Court also ordered the parties to submit short briefs on whether the case is moot in light of President Trump's new proclamation on travel restrictions.