Friday, April 20, 2018

Check it Out: Yale J. on Regulation Symposium on Lucia

Check out the Yale Journal on Regulation's symposium on Lucia v. SEC, the case testing whether SEC ALJs are principal officers under the Appointments Clause (and, if so, appointed in violation of the Clause). The Court will hear oral arguments in the case on Monday.

April 20, 2018 in Appointment and Removal Powers, Congressional Authority, Executive Authority, News, Separation of Powers | Permalink | Comments (0)

Thursday, April 19, 2018

Seventh Circuit Affirms Nationwide Injunction Against Sessions's Clamp Down on Sanctuary Cities

The Seventh Circuit today affirmed a lower court's nationwide injunction against two portions of Attorney General Jeff Sessions's clamp-down on sanctuary cities. The ruling--a significant victory for Chicago and other sanctuary jurisdictions--means that the government cannot enforce the "notice" and "access" conditions on sanctuary cities' receipt of federal law-enforcement JAG grants.

We posted on the lower court's ruling here.

Recall that the lower court ruled that Chicago demonstrated a likelihood of success in its challenge to two key conditions that AG Sessions imposed on sanctuary cities--the notice condition and the access condition--and imposed a nationwide preliminary injunction against the enforcement of those conditions. (The notice condition requires sanctuary jurisdictions to comply with a DHS request to provide advance notice of any scheduled release date and time for a particular alien. The access condition requires sanctuary jurisdictions to allow federal agents to have access to any correctional facility to meet with aliens and interrogate them.) (The lower court did not enjoin the enforcement of the third condition, that sanctuary jurisdictions certify compliance with 8 U.S.C. Sec. 1373.)

The government argued that the lower court erred on the merits and that it exceeded its authority in issuing a nationwide injunction. The Seventh Circuit disagreed on both counts.

The court ruled that AG Sessions lacked unilateral authority to impose the notice and access conditions on receipt of a federal grant, because that's Congress's job:

The Attorney General in this case used the sword of federal funding to conscript state and local authorities to aid in federal civil immigration enforcement. But the power of the purse rests with Congress, which authorized the federal funds at issue and did not impose any immigration enforcement conditions on the receipt of such funds. In fact, Congress repeatedly refused to approve of measures that would tie funding to state and local immigration policies. Nor, as we will discuss, did Congress authorize the Attorney General to impose such conditions.

The court found nothing in the INA that authorized the AG to impose these conditions, and it rejected the government's claim that general statutory authority for the Assistant Attorney General, under 34 U.S.C. Sec. 10102(a)(6), authorized the AG to impose these conditions. That subsection says that "[t]he Assistant Attorney General shall . . . exercise such other powers and functions as may be vested in the Assistant Attorney General pursuant to this chapter or by delegation of the Attorney General, including placing special conditions on all grants, and determining priority purposes for formula grants." (Emphasis added.) The court said that "[t]he inescapable problem here is that the Attorney General does not even claim that the power exercised here is authorized anywhere in the chapter, nor that the Attorney General possesses that authority and therefore can delegate it to the Assistant Attorney General. In fact, as set forth above, the Byrne JAG provisions set forth the duties of the Attorney General and do not provide any open-ended authority to impose additional conditions."

Two judges went on to say that the district court was well within its authority to grant a nationwide injunction:

The case before us presents an example of the type of case in which a district court should properly be able to apply an injunction nationwide. The case presents essentially a facial challenge to a policy applied nationwide, the balance of equities favors nationwide relief, and the format of the Byrne JAG grant itself renders individual relief ineffective to provide full relief.

Judge Manion dissented from this portion of the ruling.

April 19, 2018 in Congressional Authority, Executive Authority, Jurisdiction of Federal Courts, News, Separation of Powers | Permalink | Comments (0)

Wednesday, April 18, 2018

Check it Out: Chesney and Vladeck on the Corker-Kane AUMF

Check out Profs. Bobby Chesney and Steve Vladeck's National Security Law Podcast on The Corker-Kane AUMF. Here's Chesney's primer at Lawfare, and here's the text.

April 18, 2018 in Congressional Authority, Executive Authority, News, Separation of Powers, War Powers | Permalink | Comments (0)

Thursday, March 29, 2018

Second Circuit Says NY Can Use Surplus Highway Toll Revenue for Canals

The Second Circuit ruled that New York's practice of using surplus revenue from highway tolls to fund its canal system did not violate the Dormant Commerce Clause. The ruling means that New York can continue this practice.

The court ruled that Congress specifically approved the practice in the Intermodal Surface Transportation Efficiency Act of 1991. That Act authorizes state authorities to collect highway tolls without repaying the federal government (for federal financial aid to construct and improve highways in the first place) so long as it first used those funds for specified purposes under the Act. If so, then a state could use all excess toll revenues "for any purpose for which Federal funds may be obligated by a State under [Title 23]." This includes "historic preservation, rehabilitation and operation of historic transportation buildings, structures, or facilities (including historic railroad facilities and canals)." A separate provision--a "Special Rule"--paralleled this rule and added specific conditions for the New York State Thruway.

The court said that the ISTEA "permitted the Thruway Authority to allocate excess toll revenues (1) to any transportation facilities under the Thruway Authority's jurisdiction or (2) for any project eligible to receive federal assistance under Title 23." According to the court, this "plain language of the ISTEA manifestly contains . . . 'unmistakably clear' evidence of an intent to authorize the Thruway Authority to use excess highway toll revenues for canal purposes."

Because Congress validly authorized this under its Commerce Clause authority, it can't violate the Dormant Commerce Clause.

March 29, 2018 in Cases and Case Materials, Commerce Clause, Congressional Authority, Dormant Commerce Clause, Federalism, News, Opinion Analysis | Permalink | Comments (1)

Wednesday, March 14, 2018

Ninth Circuit on the Territory of Guam's Criminal Jurisdiction and Constitutional Status

In its opinion in United v. Obak, the Ninth Circuit rejected a criminal defendant's argument that Article III §2 cl. 3 and the Sixth Amendment negated the jurisdiction of the United States District Court for the District of Guam over his trial.

In the panel opinion by Judge M. Margaret McKeown, the court "quickly dispense[d]" with the challenge to the district court's subject matter jurisdiction, noting that under the Organic Act of Guam, the District Court of Guam has the same jurisdiction as a district court of the United States.

However, the Ninth Circuit construed the jurisdictional challenge as also a constitutional venue challenge, which relied on two constitutional provisions:

Under Article III, Section 2, clause 3, “Trial shall be held in the State where the said Crimes shall have been committed; but when not committed within any State, the Trial shall be at such Place or Places as the Congress may by Law have directed.” U.S. Const. Art. III § 2, cl. 3. The Sixth Amendment guarantees a right to a jury trial in “the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law.” U.S. Const. amend. VI.

783px-Coat_of_arms_of_Guam.svgThe issue, however, is whether such constitutional rights extend to the residents of Guam, an "unincorporated territory," because apart from "certain 'fundamental rights,' constitutional rights do not automatically apply to unincorporated territories such as Guam" and Congress must extend other constitutional rights by statute.

The court held that under the Organic Act of Guam Congress had not extended Article III §2 to persons residing in Guam, citing a 1954 Ninth Circuit case which the court stated "still stands." 

The court, however, noted that Sixth Amendment protections were extended to Guam in 1968, under the Mink Amendment revising the Guam Organic Act. Nevertheless, this very extension abrogated the challenge:

To give effect to the congressional extension of the Sixth Amendment to Guam, it makes no common sense to claim that Guam is not a state or a district such that venue cannot be laid in Guam. Otherwise, having the same “force and effect” in Guam as “in any State of the United States” would strip away part of the amendment as extended to Guam.

Thus, the court concluded that

To hold differently would require us to ignore the constitutional and statutory framework established for Guam, overturn established precedent, and effectively strip federal district courts located in unincorporated territories of the ability to hear certain cases.

Yet while the court's conclusion seems correct, it does illustrate the continuing diminished constitutional status of United States citizens residing in United States territories.

March 14, 2018 in Congressional Authority, Criminal Procedure, Fundamental Rights, Opinion Analysis, Sixth Amendment | Permalink | Comments (0)

Thursday, March 8, 2018

D.C. Circuit Rejects Challenge to Second Detroit-Windsor Bridge

The D.C. Circuit this week rejected a challenge to the Secretary of State's authorization of a second bridge linking Detroit with Windsor, Ontario, as an impermissible delegation of authority by Congress (among other things).

The case, Detroit International Bridge Co v. Government of Canada, arose in 2012 when the Secretary of State authorized a second bridge pursuant to the International Bridge Act. The IBA provides:

The consent of Congress is hereby granted to the construction, maintenance, and operation of any bridge and approaches thereto, which will connect the United States with any foreign country . . . and to the collection of tolls for its use, so far as the United States has jurisdiction.

The plaintiff, which owns and operates the first bridge (the Ambassador Bridge), sued, arguing that the IBA violated the nondelegation doctrine, among other claims.

The D.C. Circuit this week rejected the plaintiff's nondelegation claim (along with the others). The court, quoting Zemel v. Rusk, said that there's a thumb on the scale against nondelegation challenges in the area of foreign affairs, because Congress "must of necessity paint with a brush broader than it customarily wields in domestic areas." It then compared the case to the congressional delegation in TOMAC v. Norton (D.C. Cir. 2006):

Applying these principles, this court has held that a delegation authorizing the Secretary of the Interior, who has a trust obligation with respect to Indians, "to acquire real property for the [Pokagon Indian] Band," was not unconstitutional because it was "cabined by 'intelligible principles' delineating both the area in and the purpose for which the land should be purchased. Here too, the Secretary's authority is limited by an "area"--navigable waters between the U.S. and Canada or Mexico--and a "purpose"--the construction of international bridges. Thus, the intelligible principle is that in view of the Secretary's mission relating to foreign affairs, the Secretary will review international bridge agreements for their potential impact on United States foreign policy.

March 8, 2018 in Cases and Case Materials, Congressional Authority, Executive Authority, News, Nondelegation Doctrine, Opinion Analysis, Separation of Powers | Permalink | Comments (0)

Tuesday, February 20, 2018

Check it Out: Katyal and Starr on Protecting Mueller

Check out Neal Katyal and Kenneth Starr's piece in the NYT on A Better Way to Protect Mueller. They argue that instead of Congress acting to protect the special counsel, DOJ should do what Robert Bork did in Watergate--that is, after he fired Cox:

As acting attorney general, Bork appointed a new special prosecutor, Leon Jaworski. He then issued a regulation that "the president will not exercise his constitutional powers to effect the discharge of the special prosecutor or to limit the independence that he is hereby given." It went on to specify that the special prosecutor could be terminated only for "extraordinary improprieties," and even then, Nixon could do it only with a "consensus" of the House and Senate majority and minority leaders, and the chairmen and ranking members of the chambers' judiciary committees. Bork codified these restrictions in federal regulations, and told the news media that Nixon had agreed to them.

Katyal and Starr argue that DOJ should issue its own "Bork regulation."

February 20, 2018 in Appointment and Removal Powers, Congressional Authority, Executive Authority, News, Separation of Powers | Permalink | Comments (0)

Wednesday, January 31, 2018

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

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

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

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

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

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

And this:

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

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

Wednesday, January 24, 2018

Justice Tightens the Screws on Sanctuary Cities

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

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

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

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

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

Wednesday, January 17, 2018

Sorting Out Bannon's Claim of Executive Privilege

Former White House chief strategist Steve Bannon invoked a breathtakingly broad version of executive privilege on behalf of the President at yesterday's closed-door House Intelligence Committee hearing. But at the same time, he reportedly maintains (apparently along with the White House) that the same executive privilege won't prevent him from sharing information with Special Counsel Robert Mueller, who has subpoenaed Bannon.

What gives? Neither Bannon nor the White House has said. But let's try to sort some of this out.

Start here: The Supreme Court, in its seminal case United States v. Nixon, said that certain communications between the President and his or her advisors may be privileged. While this "executive privilege" is nowhere in the Constitution, the Court said that it derives from the President's Article II powers and separation-of-powers principles.

But the privilege extends only to communications with the President. So any communications that Bannon had with Candidate Trump or President-Elect Trump are not covered under Nixon. Under Nixon, executive privilege simply does not apply.

Moreover, the privilege works against particular requests for information. It doesn't provide a broad shield against testifying generally. (As the courts have recognized, if it worked as a broad shield, the President could use it to frustrate the functions of the coordinate branches, in violation of the separation of powers.) Bannon can only assert the privilege on behalf of the President in response to a particular request, and not as a shield against testifying generally.

As to Bannon's communications with President Trump: Nixon says that the privilege is qualified (that is, not absolute) and subject to a balancing of interests. In particular, in determining whether executive privilege protects communications, the Court balances the need for the information against the need for confidentiality of the particular Presidential communication at issues.

[N]either the doctrine of separation of powers nor the need for confidentiality of high-level communications, without more, can sustain an absolute, unqualified Presidential privilege of immunity from judicial process under all circumstances. The President's need for complete candor and objectivity from advisers calls for great deference from the courts. However, when the privilege depends solely on the broad, undifferentiated claim of public interest in the confidentiality of such conversations, a confrontation with other values arises. Absent a claim of need to protect military, diplomatic, or sensitive national security secrets, we find it difficult to accept the argument that even the very important interest in confidentiality of Presidential communications is significantly diminished by production of such material for in camera inspection with all the protections that a district court will be obliged to provide.

In Nixon, the Court held that the countervailing interests in the "fair administration of criminal justice"--in particular, Fifth and Sixth Amendment rights of defendants and the basic functions of the courts--outweighed the President's "broad interest in confidentiality of communications."

So the question in the Bannon case is whether the balancing works the same way with a congressional inquiry. There's good reason to think that it does. As Judge Bates (D.D.C.) explained in the Harriet Miers case, Committee on Judiciary, U.S. House of Representatives v. Miers, Congress's "power of inquiry" is every bit as important as the judiciary's power to administer justice:

[T]he Executive insists that this case is distinguishable because it does not involve a core function of another constituent branch but rather a peripheral exercise of Congress's power. That is mistaken. As discussed above, Congress's power of inquiry is as broad as its power to legislate and lies at the very heart of Congress's constitutional role. Indeed, the former is necessary to the proper exercise of the latter: according to the Supreme Court, the ability to compel testimony is "necessary to the effective functioning of courts and legislatures." Thus, Congress's use of (and need for vindication of) its subpoena power in this case is no less legitimate or important than was the grand jury's in United States v. Nixon. Both involve core functions of a co-equal branch of the federal government, and for the reasons identified in Nixon, the President may only be entitled to a presumptive, rather than an absolute, privilege here.

The Miers case was a little different--it involved an assertion of absolute privilege against congressional testimony on a slightly different theory than executive privilege--and the court used the quoted passage merely to support its conclusion that no such absolute privilege existed. Moreover, the passage glosses over the fact that the Nixon balancing considered important competing Fifth and Sixth Amendment rights, absent or diminished in a congressional inquiry. Still, Congress's interests in fact-finding and oversight count for something important, even if slightly less than the judiciary's interests in Nixon, and they may well outweigh a "broad and undifferentiated" claim of privilege.

By claiming executive privilege before the House, but not before Mueller, Bannon and the White House are probably relying on a different balancing of interests under Nixon. In particular, the White House is probably claiming that the House's interests in the communications are less than Mueller's interests, and that the President's interest in confidential communications with Bannon outweigh the House's interests, but not Mueller's. Moreover, it's probably claiming that the communications are more secure if released to Mueller (like the in camera review in Nixon) and less secure if released to Congress (even if a closed-door hearing).

But we don't know for sure, because the White House hasn't said. And we don't know how the courts would rule on these theories, even if the President asserted them.

These disputes between the White House and Congress usually work themselves out informally, without involvement of the courts. But now that the Committee has issued a subpoena, if Bannon continues to decline to provide certain information, the case could go to the courts, and we could get the President's legal reasoning--and a court ruling on whether and how executive privilege applies.

UPDATE: It turns out that U.S. Magistrate Judge James P. O'Hara ruled last spring that executive privilege doesn't apply to communications with the President-Elect. (H/t to my co-blogger Ruthann Robson.) The case involved Kansas Secretary of State Kris Kobach's attempt to invoke the privilege to protect a communication that he had with President-Elect Trump on the National Voter Registration Act. Judge O'Hara rejected Kobach's claim:

Secretary Kobach's communication was made to a president-elect, not to a sitting president. Although a president-elect by statute and policy may be accorded security briefings and other transitional prerogatives, he or she has no constitutional power to make any decisions on behalf of the Executive Branch. No court has recognized the applicability of the executive privilege to communications made before a president takes office. If that were the law, it would mean that potentially almost everything communicated to a president-elect by the hundreds of persons seeking appointments in the new administration would be shielded by privilege.

In Nixon v. Administrator of General Services, the Supreme Court did recognize that former presidents may assert privilege over certain communications made during their terms in office. But the reasoning given by the Court for its decision doesn't directly translate to communications with president-elects.

January 17, 2018 in Congressional Authority, Executive Authority, Jurisdiction of Federal Courts, News, Separation of Powers | Permalink | Comments (0)

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

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

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

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

(Laughter.)

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

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

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

 

 

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

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

Friday, January 5, 2018

Daily Read: Marijuana, Federalism, and Preemption

In a Memorandum on January 4, Attorney General Jeff Sessions has rescinded previous Department of Justice instructions to United States Attorneys relating to enforcement of federal laws criminalizing marijuana as "unnecessary" in favor of a well-established rule of general guided discretion.  The DOJ press release describes it as a "return to the rule of law," but it arguably makes the legal rules more subject to discretion and even more unclear.  The legalization of marijuana by states while the federal government maintains marijuana on its schedule of controlled substances pertinent to criminal laws presents complicated problems of federalism and preemption. 

An excellent primer on these issues is Lea Brilmayer's article A General Theory of Preemption: With Comments on State Decriminalization of Marijuana, appearing in a recent symposium on Marijuana and Federalism in Boston College Law Review.

Marijuana_plantBrilmayer does provide some background on the marijuana controversies, including a discussion of the Supreme Court's failure to provide clear answers on the state-federal conflicts regarding marijuana.  But, as her title indicates, marijuana is an example rather than a primary focus.  She explains the principles and open questions in the doctrines of vertical and horizontal preemption, then uses concrete examples involving marijuana.  Her ultimate conclusion is that there is a weak case for preemption in the marijuana decriminalization context.

 This is a terrific introduction for understanding the issues surrounding the issues raised by the Sessions memo regarding state marijuana decriminalization.  At 35 pages, with accessible hypotheticals, this could be a great assignment for Constitutional Law classes this semester.

 

January 5, 2018 in Congressional Authority, Criminal Procedure, Federalism, Preemption, Scholarship, Supremacy Clause, Teaching Tips | Permalink | Comments (0)

Friday, December 22, 2017

Ninth Circuit Finds Presidential Travel Ban 3.0 Unlawful

In the latest installment in the continuing saga of President Trump's various efforts to promulgate a travel ban, often called a Muslim Ban, the Ninth Circuit opinion in Hawai'i v. Trump has largely affirmed the preliminary injunction issued by District Judge Derrick Watson enjoining the Presidential Proclamation 9645, entitled “Enhancing Vetting Capabilities and Processes for Detecting Attempted Entry Into the United States by Terrorists or Other Public-Safety Threats”of September 24, 2017.

Recall that the United States Supreme Court, over the stated disagreement of Justices Ginsburg and Sotomayor, issued a stay of the district judge's opinion earlier this month, as well as a stay in the related proceedings in the Fourth Circuit in IRAP v. Trump. 

The unanimous Ninth Circuit panel does not disturb the status quo: "In light of the Supreme Court’s order staying this injunction pending 'disposition of the Government’s petition for a writ of certiorari, if such writ is sought,' we stay our decision today pending Supreme Court review."   The Ninth Circuit does, however, narrow the district judge's injunction, to "give relief only to those with a credible bona fide relationship with the United States."

On the merits, the Ninth Circuit does not reach the constitutional claims including the Establishment Clause, unlike the Fourth Circuit in IRAP v. Trump, because it finds that the plaintiffs' statutory claims are sufficient to grant relief.

Yet the complex statutory framework of the Immigration and Nationality Act, INA, does implicitly invoke the scope of executive powers.  In short, the Ninth Circuit finds that the Presidential Proclamation’s indefinite entry suspensions constitute nationality discrimination in the issuance of immigrant visas and therefore (in likelihood sufficient for the preliminary injunction) run afoul of 8 U.S.C. § 1152(a)(1)(A)’s prohibition on nationality-based discrimination. As the Ninth Circuit opinion observes:

the Proclamation functions as an executive override of broad swaths of immigration laws that Congress has used its considered judgment to enact. If the Proclamation is—as the Government contends—authorized under [8 U.S.C.] § 1182(f), then § 1182(f) upends the normal functioning of separation of powers. Even Congress is prohibited from enabling “unilateral Presidential action that either repeals or amends parts of duly enacted statutes.” Clinton v. City of New York, 524 U.S. 417, 439 (1998). This is true even when the executive actions respond to issues of “first importance,” issues that potentially place the country’s “Constitution and its survival in peril.” Id. at 449 (Kennedy, J., concurring). In addressing such critical issues, the political branches still do not “have a somewhat free hand to reallocate their own authority,” as the “Constitution’s structure requires a stability which transcends the convenience of the moment” and was crafted in recognition that “[c]oncentration of power in the hands of a single branch is a threat to liberty.” Id. at 449–50.

And the Proclamation’s sweeping assertion of authority is fundamentally legislative in nature. . . .

Recall that a few months ago, after granting certiorari in Hawai'i v. Trump, the United States Supreme Court instructed the Ninth Circuit to dismiss as moot the challenge to Travel Ban 2.0.  It looks as if the Court will now have its chance to consider version 3.o.

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December 22, 2017 in Cases and Case Materials, Congressional Authority, Courts and Judging, Establishment Clause, Executive Authority, First Amendment, International, Opinion Analysis, Race, Recent Cases, Religion | Permalink | Comments (0)

Thursday, December 14, 2017

Ninth Circuit Says Interior Secretary Can Withdrawal Large Tracts from Mining Near Grand Canyon

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.

December 14, 2017 in Cases and Case Materials, Congressional Authority, Executive Authority, News, Opinion Analysis, Separation of Powers | Permalink | Comments (0)

Wednesday, September 27, 2017

Senate Judiciary on Special Counsels and Separation of Powers

The Senate Judiciary Committee heard testimony yesterday on two bi-partisan measures to protect the Special Counsel from arbitrary firing. The bills, and the hearing, are a push-back against earlier White House murmurings and more recent public concerns that President Trump may try to fire Special Counsel Robert Mueller.

The bills, S. 1735 (sponsored by Senators Graham, Booker, Whitehouse, and Blumenthal) and S. 1741 (sponsored by Senators Tillis and Coons), would both codify the heightened "for cause" firing standard already in the DOJ regs. They'd also provide independent judicial oversight of any termination.

But they differ in the way they'd provide judicial oversight. The Graham-Booker bill would require the AG to file a case before a three-judge district court before firing the Special Counsel; in contrast, the Tillis-Coons bill would allow the Special Counsel to challenge the termination before a three-judge district court after the firing.

That distinction may make all the constitutional difference between the two approaches. That's because there may be Article III problems (standing, and possibly the bar on advisory opinions) with a court hearing a pre-termination challenge, as in Graham-Booker (as Prof. Steve Vladeck's suggested before the Committee). Moreover, adding a second-level determination of "for cause" prior to firing (as in Graham-Booker), but not after firing (as in Tillis-Coons), may run afoul of the prohibition on double-for-cause provisions in Free Enterprise Fund v. PCAOB (as Prof. John Duffy argued).

But more generally, the witnesses, with one exception, seemed to agree that there were no problems codifying the for-cause firing standard, so long as Morrison v. Olson remains good law. (Prof. Eric Posner argued that both bills are well within Morrison; Vladeck and Duffy more or less agreed.)

Only Prof. Akhil Reed Amar argued that Morrison is (at least de facto) no longer good law (that Justice Scalia has been vindicated), that the bills violate the separation of powers, and that, in any event, it'd be "unwise" to pass either law given the likelihood of a veto and the resulting blowback from the White House.

September 27, 2017 in Appointment and Removal Powers, Congressional Authority, Music, Separation of Powers | Permalink | Comments (0)

Tuesday, August 8, 2017

Chicago Sues DOJ Over Sanctuary Cities Conditions

The City of Chicago filed suit this week against the U.S. Department of Justice over the Department's conditions on a federal law-enforcement grant designed to clamp down on sanctuary cities. The suit is just the latest escalation in the running disputes between "sanctuary" jurisdictions and the Trump Administration. We posted most recently here.

Chicago challenges DOJ-added conditions on the Byrne Justice Assistance Grant program that, it says, exceed DOJ authority, violate federalism principles, and interfere with the City's long-standing and effective Welcoming Policy, now codified as the Welcoming City Ordinance. DOJ announced some time ago that it would require grant recipients to comply with Section 1373 (which requires state and local authorities to communicate with federal authorities regarding the immigration status of individuals in their custody). More recently, DOJ announced that it would also require recipients to give the federal government notice of release of any individual at least 48 hours before the scheduled release (the notice condition) and to give federal immigration officials unlimited access to local police stations and law enforcement facilities to interrogate any suspected non-citizen held there (the access condition).

Chicago claims as an initial matter that it complies with Section 1373. That's because its Welcoming Policy prohibits officers from collecting immigration information from individuals in the first place, not from communicating information to federal officers. "[T]hus there is no information for the City to share (or restrict from sharing)." And "[m]oreover, if Chicago officials happen to come across immigration status information, they are not restricted from sharing it with federal officials."

As to the conditions themselves, Chicago argues that they exceed the grant requirements that Congress wrote into the Byrne JAG program; that only Congress, and not the Executive Branch, can add or change the statutory conditions on the program; and that the conditions violate federal conditioned-spending rules. As to the last, Chicago says that the conditions "are not germane to the Byrne JAG funds it has received for over a decade," that the notice and access conditions would require the City to violate the Fourth Amendment (by requiring that the City continue to hold individuals without probable cause for 48 hours, that the access condition, that the conditions are ambiguous, and that they are unconstitutionally coercive. The City also argues that each condition unconstitutionally commandeers it and its officers.

The case is in the Northern District of Illinois.

August 8, 2017 in Cases and Case Materials, Congressional Authority, Executive Authority, Federalism, Music, Separation of Powers, Spending Clause | Permalink | Comments (0)

Friday, August 4, 2017

D.C. Circuit Keeps Obamacare Subsidy Case Alive

The D.C. Circuit earlier this week allowed 17 states and the District of Columbia to intervene in the suit challenging federal subsidies to insurance companies under the Affordable Care Act.

The development keeps the appeal alive, even as President Trump considers halting the payments. Such a move before this week's ruling would have mooted the appeal. But now that the states can defend the payments, and oppose Judge Collyer's ruling, it's not entirely clear whether President Trump can stop the payments, or whether the D.C. Circuit might stop him if he tried.

Recall that House Republicans sued the Obama Administration for making payments to insurance companies under the ACA, even though the line-item for those payments was zero funded. The payments were designed under the ACA to subsidize insurance companies for providing affordable plans on the exchanges. But Congress allocated no money to the line-item designated for the subsidies. The Obama Administration nevertheless made payments, drawing money from another, related account. (Without the payments, insurance rates would skyrocket on the exchanges, or insurers would have pulled out, or both.)

House Republicans sued, and Judge Rosemary Collyer (D.D.C.) ruled in their favor. But she stayed her injunction pending appeal. President Trump then inherited the appeal from the Obama Administration, allowing him to drop the appeal, leave Judge Collyer's decision in place, and stop the payments. (If President Trump dropped the appeal, Judge Collyer's stay pending appeal would have gone away.) He could even have cited Judge Collyer's ruling as a reason for stopping payments, perhaps diffusing some of the political blow-back from such a move.

But President Trump didn't drop the appeal. Moreover, he has continued the payments, even as he repeatedly suggests that he might stop. Bipartisan lawmakers have encouraged him to continue payments. A final decision is due from the White House this week.

Now, with this most recent order from the D.C. Circuit, allowing states to join the suit, the appeal will continue (with the states now defending the payments, even as the Trump Administration doesn't), and Judge Collyer's stay will remain in place, at least until the D.C. Circuit rules on the case. While the stay itself doesn't prevent the President from halting payments, the states' intervention might: Because the D.C. Circuit said that the states demonstrated sufficient harm if the subsidies stop (a condition of intervention), it's not entirely clear that President Trump can stop them. And even if he can, it's not clear that the D.C. Circuit might not prevent him from stopping them (in order not to harm the states).

In other words, the states' intervention might tie the President's hands by forcing him to continue payments, even though the parties to the lawsuit might otherwise agree to stop the payments and let the case go moot.

The uncertainty here comes, on the one hand, from the fact that the President can probably stop the payments whenever he wants, irrespective of the states' intervention or Judge Collyers' ruling and stay. But on the other hand if the states argue that the President has to make payments under the ACA (and not just that he can't be prevented from making payments), then the D.C. Circuit could stop the President from halting payments. This week's ruling suggests, but does not specifically say, that the D.C. Circuit is leaving this latter option open.

But it gets even weirder. The D.C. Circuit might not even rule on the merits. That's because the states will surely challenge the House's standing to bring the case in the first place. If the D.C. Circuit kicks the case on standing grounds, that'll undue Judge Collyer's decision against the payments.

For now, the ball's in the President's court.

August 4, 2017 in Cases and Case Materials, Congressional Authority, Executive Authority, Jurisdiction of Federal Courts, News, Opinion Analysis, Separation of Powers | Permalink | Comments (0)

Thursday, August 3, 2017

President Trump's Constitutional Signing Statement on Russia-Sanctions Bill

President Trump signed the Russia-sanctions bill yesterday, but issued a sweeping constitutional signing statement calling out the "clearly unconstitutional provisions" in this "significantly flawed" legislation.

While the wide-ranging statement says that the President "favor[s] tough measures to punish and deter aggressive and destabilizing behavior by Iran, North Korea, and Russia," it also guts efforts to hold the President's feet to the fire and suggests that the President may enforce the measures (or not enforce them) nearly any way he wants. In short, given the breathtaking sweep of the statement, only time will tell whether and how the President executes the bill.

The last paragraph sums it up:

Finally, my Administration particularly expects the Congress to refrain from using this flawed bill to hinder our important work with European allies to resolve the conflict in Ukraine, and from using it to hinder our efforts to address any unintended consequences it may have for American businesses, our friends, or our allies.

The bill, H.R. 3364, adopts several measures to keep the President on a tight leash with regard to actual enforcement of Russian sanctions and related actions. President Trump identified those specifically. Here's a summary:

Sections 253 and 257: Recognition of Foreign Territorial Changes Effected by Force in Violation of International Law

President Trump argued that these provisions "displace the President's exclusive constitutional authority to recognize foreign governments, including their territorial bounds, in conflict with the Supreme Court's recent decision in Zivotofsky v. Kerry."

Section 253, titled "Statement of Policy," says that "[t]he United States, consistent with the principle of ex injuria jus non oritur, supports the policy known as the "Stimson Doctrine" and thus does not recognize territorial changes effected by force, including the illegal invasions and occupations of Abkhazia, South Ossetia, Crimea, Eastern Ukraine, and Transnistria."

Section 257 deals specifically with Ukraine and says that it's "the policy of the United States to support the Government of Ukraine in restoring its sovereign and territorial integrity; to condemn and oppose all of the destabilizing efforts by the Government of the Russian Federation in Ukraine in violation of its obligations and international commitments; to never recognize the illegal annexation of Crimea by the Government of the Russian Federation or the separation of any portion of Ukrainian territory through the use of military force; to deter the Government of the Russian Federation from further destabilizing and invading Ukraine and other independent countries," among other things.

Section 216: Congressional Oversight and Disapproval of Executive Actions with Regard to Sanctions

President Trump argues that "section 216 seeks to grant the Congress the ability to change the law outside the constitutionally required process" in conflict with INS v. Chadha. In particular, the provisions "purport to allow the Congress to extend the review period through procedures that do not satisfy the requirements for changing the law under Article I, section 7 of the Constitution." But the President "nevertheless expect[s] to honor the bill's extended waiting periods to ensure that the Congress will have a full opportunity to avail itself of the bill's review procedures."

Section 216 creates an oversight and checking process for Congress to review and disapprove of executive actions related to Russia sanctions. The section authorizes Congress to issue a "joint resolution of disapproval" that would halt disapproved presidential actions through a fast-tracked procedure. But ultimate disapproval would require presidential signature or a veto override, so satisfies constitutional requirements.

President Trump doesn't appear to complain about this ultimate disapproval procedure. Instead, he complains about the section's procedure to "extend the review period" in violation of Article I, section 7. In particular, section 216 temporarily halts presidential actions when they're under consideration by Congress, when the President is considering a joint resolution of disapproval, and when Congress is reconsidering a joint resolution of disapproval. According to the President, the temporary halt during these periods violates the presentment requirement, because the resolution would take temporary effect, even though the President hadn't signed it.

Sections 254 and 257: Coordinating Aid and Ukrainian Energy Security

President Trump objected that these provisions "purport to direct my subordinates in the executive branch to undertake certain diplomatic initiatives, in contravention of the President's exclusive constitutional authority to determine the time, scope, and objective of international negotiations."

Section 254 provides a "Countering Russian Influence Fund" and sets goals and standards for using that money, including specifying how the Secretary of State shall coordinate and carry out activities under the fund and how the Secretary can modify the goals of the fund. It also requires the Secretary to "establish a pilot program for Foreign Service officer positions focused on governance and anticorruption activities" in covered countries.

Section 257 requires the Secretary to "work with the Government of Ukraine to develop a plan to increase energy security in Ukraine, increase the amount of energy produced in Ukraine, and reduce Ukraine's reliance on energy imports from the Russia Federation," provides funding for those efforts, and sets standards and provides for congressional oversight.

Various Sections Restricting Entry to U.S.

Finally, the President objected to various provisions restricting visas to individuals who engage in certain, specified behavior, like supporting Iran's ballistic missile program, violating arms embargos, and the like. The President wrote that these provisions "would require me to deny certain individuals entry into the United States, without an exception for the President's responsibility to receive ambassadors under Article II, section 3 of the Constitution."

August 3, 2017 in Congressional Authority, Executive Authority, News, Separation of Powers | Permalink | Comments (0)

Wednesday, May 17, 2017

D.C. Circuit Tosses Backpage.com's Challenge of Senate Subpoena

The D.C. Circuit ruled yesterday that Backpage.com's challenge to a subpoena issued by the Senate Permanent Subcommittee on Investigations was moot. The court dismissed Backpage.com's case and vacated earlier district court rulings.

The case arose when the Subcommittee sought to enforce its subpoena for Backpage.com documents to aid its investigation into the web-site's facilitation of sex trafficking. While the case worked its way between the district court and the D.C. Circuit, Backpage.com voluntarily provided the Subcommittee with a good many of the documents the Subcommittee sought (but withheld some other documents under claims of privilege). Before the D.C. Circuit could rule on Backpage.com's challenge to the subpoena, the Subcommittee wrapped up its investigation based on the released documents and issued its final report. The Subcommittee then moved to dismiss the case as moot.

In its ruling yesterday, the D.C. Circuit agreed with the Subcommittee. The court rejected Backpage.com's argument that the district court might still order some relief (for example, an order that the Subcommittee destroy or return the documents still in its possession), thus keeping the case alive, because "the separation of powers, including the Speech or Debate Clause," bars a court from ordering a congressional committee to release documents used in a lawful investigation. In particular, the court wrote that under circuit law "the Clause affords Congress a 'privilege to use materials in its possession without judicial interference,' even where unlawful acts facilitated their acquisition." (Unlawful acts did not facilitate their acquisition here; instead, Backpage.com provided them.) In short, once documents come into the hands of a committee, "the subsequent use of the documents by the committee staff in the course of official business is privileged legislative activity."

The court rejected Backpage.com's argument that the Subcommittee waived its privilege by voluntarily subjecting itself to the court's jurisdiction (when it filed to enforce the subpoena): "[w]hen Congress petitions the court in a subpoena enforcement action, Congress does not waive its immunity from court interference with its exercise of its constitutional powers."

The court also rejected Backpage.com's argument that the case was capable of repetition but evading review. The court said a repeat was simply too speculative.

The ruling doesn't leave future subjects of congressional subpoenas without a remedy. According to the court, such subjects should refuse to comply during the legal proceedings so that the courts can hear their objections on the merits.

In other words, Backpage.com's mistake was voluntarily releasing the documents in the first place.

The separation-of-powers part of the ruling stands in contrast to the Court's holding in Church of Scientology of California v. United States, a case that the D.C. Circuit distinguished. In Church of Scientology, the IRS filed a petition to enforce a summons against a state-court clerk for tape recordings related to the Church in district court, and the Church intervened to oppose. While the case was on appeal, the clerk released the tapes to the IRS, at while point the appellate court dismissed the case as moot. The Supreme Court reversed, however, explaining that the case remained alive because the district court could still issue relief to the Church--a "destroy or return" order.

The D.C. Circuit said that Church of Scientology was different, however, because "the separation of powers, including the Speech or Debate Clause," bars a court from ordering that same kind of relief against Congress.

May 17, 2017 in Cases and Case Materials, Congressional Authority, Courts and Judging, Mootness, News, Opinion Analysis, Separation of Powers | Permalink | Comments (0)

Monday, May 15, 2017

Ninth Circuit Oral Arguments in Hawai'i v. Trump

A panel of the Ninth Circuit - - - Judge Ronald Gould, Judge Richard Paez, and Senior Judge Michael Hawkins - - - heard oral arguments in Hawai'i v. Trump, the appeal from the preliminary injunction against the President's March 6, 2017 Executive Order "Protecting The Nation From Foreign Terrorist Entry Into The United States" (now numbered EO 13,780) (colloquially known as the revised travel ban or "Muslim Ban 2.0").

Arguing for the DOJ in favor of the United States was Acting Solicitor General Jeffrey Wall, who also argued the same position a week ago in the Fourth Circuit en banc argument in Trump v. International Refugee Assistance Project (IRAP).  Indeed, there were specific references in the Ninth Circuit argument to that argument with regard to the scope of the injunction in Hawai'i v. Trump.  The argument spent a fair amount of time on the statutory claims, which were a basis of Maryland District Judge Theodore Chuang's injunction on appeal to the Fourth Circuit, but were not the basis of the injunction by Hawai'i District Judge Derrick Watson, who ruled on the basis of the Establishment Clause.  The issue of standing also peppered the arguments.  Wall's argument in the Ninth Circuit seemed less emphatic about the "presumption of regularity" entitled to the President than the argument last week, perhaps because of intervening events. Wall certainly did, however, hammer the Government's point that the deferential standard of Kleindienst v. Mandel (1972) should apply.  And although it was not specifically referenced, the dissent from en banc review in a Ninth Circuit precursor case, Washington v. Trump, which largely rested on Mandel, implicitly shaped the arguments.

For his part, arguing for Hawai'i, Neal Katyal, formerly with the Department of Justice, stressed that the Ninth Circuit's panel opinion in Washington v. Trump should be the model.  Katyal argued that the EO was unprecedented.

The video of the argument is worth watching, not only for its explication of the issues, but also as examples of excellent appellate advocacy.

 

However, there was a quite odd interchange regarding Neal Katyal's previous litigation stances.  At around 52:03 in the video above, Senior Judge Hawkins said to Katyal, "You have argued in the past to give deference to the Executive in immigration matters." After Katyal's acknowledgement, Judge Hawkins refers to an amicus brief in United States v. Texas and reads a passage.  The brief to which Hawkins seems to have been referring is Brief of Former Commissioners of the United States Immigration and Naturalization Service as Amici Curiae In Support Of Petitioners and the portions seem to be from page 12 of the brief, supporting the Congressional grant of wide authority to make decisions regarding deferred action in immigration deportations.  After Katyal's response, Judge Hawkins made a second reference: "You also wrote a brief in Flores-Villar."  The brief to which Hawkins refers is Katyal's brief as Acting Solicitor General for the Respondent United States in Flores-Villar v. United States, involving a mother-father differential for unwed parents.  Judge Hawkins reads the following passage without the case references or citations:

[T]he United States’ “policy toward aliens” is “vitally and intricately interwoven with * * * the conduct of foreign relations,” a power that likewise is vested in the political Branches. Harisiades v. Shaughnessy, 342 U.S. 580, 588-589 (1952). “Any rule of constitutional law that would inhibit the flexibility of the political branches of government to respond to changing world conditions should be adopted only with the greatest caution.” Mathews v. Diaz, 426 U.S. 67, 81 (1976).

Katyal responds that when he was with the United States Government he tried to convince the United States Supreme Court of this, but the Court "did not bite."  Recall that Flores-Villar was a 4-4 affirmance of the Ninth Circuit.

Certainly, both United States v. Texas, which has usually surfaced in the context of a state's standing, and Flores-Villar are somewhat pertinent immigration cases involving the scope of judicial deference.  Nevertheless, specific references to an individual attorney's briefs does seem unusual.

 

May 15, 2017 in Congressional Authority, Courts and Judging, Current Affairs, Due Process (Substantive), Establishment Clause, Executive Authority, First Amendment, Oral Argument Analysis, Recent Cases, Standing | Permalink | Comments (0)