Thursday, August 2, 2018

District Judge Rejects Challenge to Special Counsel Mueller's Appointment

Chief Judge Beryl A. Howell (D.D.C.) rejected a challenge to Special Counsel Robert Mueller's appointment under the Appointments Clause. The ruling, which came in response to a witness's challenge to a grand jury subpoena issued by Mueller, means that the witness--identified by several sources as Andrew Miller, a former associate of Roger Stone--will have to comply with the subpoena.

The ruling aligns with other district court rulings that upheld Mueller's appointment.

Miller challenged a grand jury subpoena issued by Mueller, arguing that Mueller was invalidly appointed under the Appointments Clause. Judge Howell rejected that claim. The court, relying on the factors in Morrison v. Olson, ruled that Mueller was an "inferior officer" and was validly appointed, pursuant to federal statute, by the head of a department. As to Miller's claim that DAG Rod Rosenstein wasn't the "Head of Department" for purposes of the Appointments Clause (because he was the DAG, not the AG), the court said that federal law authorizes the DAG to serve as Acting AG when the AG is recused, and that a different statutory provision allows the AG to delegate to the DAG authority to appoint the Special Counsel.

August 2, 2018 in Appointment and Removal Powers, Congressional Authority, Executive Authority, News, Opinion Analysis, Separation of Powers | Permalink | Comments (0)

Wednesday, August 1, 2018

Ninth Circuit Strikes (Yet Another) Blow Against Trump's Anti-Sanctuary Cities Policy

The Ninth Circuit struck another blow today against the administration's anti-sanctuary cities policy, ruling in San Francisco v. Trump that the President can't unilaterally withhold federal grants from sanctuary jurisdictions without Congress's say-so.

The ruling is just the latest in a line of similar rulings, and aligns broadly with the Seventh Circuit's ruling in the spring. This ruling is just a little bit different, however, in that it focuses principally on President Trump's original and sweeping Executive Order (and not AG Sessions's interpretive memo). The court rejects the government's attempt to narrow the test of the EO by focusing instead on AG Sessions's memo as the actual government policy. It said that the memo doesn't align with the EO (and is therefore itself ultra vires), and that in any event it's only a post-hoc justification to get the EO to pass muster in the courts.

While the ruling is an outright win for San Francisco and Santa Clara County, the court threw a bone to the administration by vacating the district court's nationwide injunction and remanding the case for reconsideration and further findings on that issue.

The facts--or at least their general outline--is all too familiar by now: In an effort to clamp down on sanctuary jurisdictions, the President ordered that sanctuary jurisdictions come into line with 8 U.S.C. Sec. 1373, which prohibits state and local jurisdictions from restricting their officers from communicating with federal immigration officials. (Other cases have also involved the "notice" and "access" conditions that AG Sessions purported to put on receipt of a certain federal grant in his memo. Those conditions required jurisdictions to provide notice to federal immigration enforcement officials of any detention, and access to state and local facilities for federal immigration enforcement. This ruling didn't deal with those, because it focused on the EO itself.)

The court simply held that under the separation of powers and Congress's Article I, Section 8, power of the purse, it's for Congress, not the Executive, to put conditions on federal spending. The court said that "because Congress has the exclusive power to spend and has not delegated authority to the Executive to condition new grants on compliance with Section 1373, the President's 'power is at its lowest ebb,'" under Justice Jackson's Youngstown framework. And at the lowest ebb, "[b]ecause the Executive Order directs Executive Branch administrative agencies to withhold funding that Congress has not tied to compliance with Section 1373, there is no reasonable argument that the President has not exceeded his authority." In sum:

Absent congressional authorization, the Administration may not redistribute or withhold properly appropriated funds in order to effectuate its own policy goals. Because Congress did not authorize withholding of funds, the Executive Order violates the constitutional principle of the Separation of Powers.

The court flatly rejected the administration's (pretty incredible) argument that its move to condition funds "is all bluster and no bite, representing a perfectly legitimate use of the presidential 'bully pulpit,' without any real meaning . . . .":

[E]ven if we ignore the statements made by and on behalf of the Administration outside the context of this litigation, the Administration's interpretation of the Executive Order strains credulity. And consideration of those statements suggests that the Administration's current litigation position is grounded not in the text of the Executive Order but in a desire to avoid legal consequences.

(Interestingly, the court said nothing about the constitutionality of Section 1373 itself. That provision is now questionable, in light of Murphy v. NCAA, as a possible "commandeering" of state governments in violation of the anti-commandeering principle. Judge Fernandez, in dissent, distinguished Murphy in a footnote by saying that the Court's articulated "principles behind the anticommnadeering rule" don't apply to Section 1373. But it's not clear how the plain ruling itself doesn't apply to Section 1373. More to come on this, I'm sure.)

The court then vacated the district court's nationwide injunction, because "the present record does not support a nationwide injunction." The court remanded "for a more searching inquiry into whether this case justifies the breadth of the injunction imposed."

(Along the way, the court also ruled that the plaintiffs had standing and that the case was ripe for judicial review.)

Judge Fernandez dissented, arguing that the case wasn't ripe and, in any event, that the EO was constitutional, because, by its plain terms, it only applies "to the fullest extent of the law."

August 1, 2018 in Cases and Case Materials, Congressional Authority, Executive Authority, Federalism, News, Opinion Analysis, Separation of Powers | Permalink | Comments (0)

Check it Out: Morley on Prophylactic Redistricting

Check out Prof. Michael Morley's new piece, Prophylactic Redistricting? Congress's Section 5 Power and the New Equal Protection Right to Vote, in the William & Mary Law Review.

Morley argues that traditional remedial features of Section 2 of the Voting Rights Act are getting squeezed from two sides: (1) Boerne and reduced congressional authority to enforce the Fourteenth and Fifteenth Amendments mean that the Court will likely give a narrower reading to Section 2 (focusing only on intentional discrimination); and (2) the Court's shift to a "pro-equality" (and away from a "pro-vote") approach to the right to vote mean that courts will likely say that any legislative expansions of the franchise have to be shared equally by all. Here's what to do about it:

Courts may apply section 2 more aggressively to defendant jurisdictions or officials that have a recent history of engaging in intentional racial discrimination concerning the right to vote. They should also be more willing to allow prophylactic applications of section 2 in circumstances where direct evidence of constitutional violations (that is, intentional discrimination) would be impracticable or impossible to uncover. Finally, remedies under section 2 should not be broader than necessary to achieve its important prophylactic purposes. Section 2 runs a risk: the more it deviates from the mandates of the Court's developing conception of equal protection, and does so in a race-conscious manner that almost invariably inures to the benefit of a particular political party, the greater skepticism it will trigger in the courts. It places courts in the difficult position of reshaping both the rules of elections and the shape of electoral districts to attempt to replicate what a fair electoral outcome in the absence of past and present society discrimination would look like. Such awesome power demands careful use.

August 1, 2018 in Congressional Authority, Elections and Voting, Fundamental Rights, News, Scholarship | Permalink | Comments (0)

Friday, July 6, 2018

District Court (Mostly) Validates California's Sanctuary Jurisidiction Laws

Judge John A. Mendez (E.D. Cal.) yesterday granted part, but denied most, of the federal government's motion for a preliminary injunction against California's sanctuary-jurisdiction laws. The ruling is only preliminary--so goes only to the likelihood of success on the merits, and not the actual success on the merits--but it nevertheless signals the court's likely approach if and when it gets to the actual merits.

This is just the latest ruling where a state promoting a progressive immigration agenda draws on conservative-Court-created structural features of the constitution (here, federalism). In particular, Judge Mendez writes that Section 1373 (the federal prohibition on states prohibiting their officers from communicating with the feds about detained individuals in order to determine their immigration status) likely violates the Court-created anticommandeering principle in Printz and (just recently) Murphy.

The case, United States v. State of California, is the federal government's challenge to California's several sanctuary laws. Here they are, with the court's analysis, one at a time:

Assembly Bill 103's Direction for State AG Review of Detention Facilities. This provision directs the state attorney general to review and report on county, local, and private locked detention facilities used by the federal government to house detainees in civil immigration proceedings in the state. The court rejected the government's argument that this provision interfered with the federal government's exclusive authority in the area of immigration detention (and was thus preempted), because the provision amounted merely to funding an authority the state AG already had. "The Court finds no indication . . . that Congress intended for States to have no oversight over detention facilities operating within their borders. Indeed, the detention facility contracts [California] provided to the Court expressly contemplate compliance with state and local law."

Assembly Bill 405's Prohibition on Consent. This provision prohibits (on pain of fine) public and private employers from providing voluntary consent to an immigration enforcement agent to enter nonpublic areas of a job-site or to access an employer's records on its employees. The court said that the consent prohibition violated intergovernmental immunity, because "[t]hese fines inflict a burden on those employers who acquiesce in a federal investigation but not on those who do not."

Assembly Bill 405's Notice Requirement. This provision requires employers to provide notice to their employees "of any inspections of I-9 Employment Eligibility Verification forms or other employment records conducted by an immigration agency within 72 hours of receiving notice of the inspection." The court said that this prohibition was likely valid: Federal immigration law "primarily imposes obligations and penalties on employers, not employees. . . . [T]he Court finds no indication--express or implied--that Congress intended for employees to be kept in the dark."

Assembly Bill 405's Reverification Requirement. This limits an employer's ability to reverify an employee's employment eligibility when not required by law. The court said that it likely "stand[s] as an obstacle" to federal immigration law and is thus preempted.

Senate Bill 54's Prohibition on State Law Enforcement Providing Immigration Information to the Feds. This provision prohibits state law enforcement from providing certain information to federal immigration officials relating to a detained person, except as required by federal law. The court wrote that Section 1373 (which prohibits states from prohibiting their officials from sharing this kind of information) likely violates the anticommandeering principle under Murphy (the Court's most recent foray into the principle, in the New Jersey sports-gambling case), because that case held that anticommandeering applies equally when Congress tells states what they may not do. But ultimately the court dodged the anticommandeering question by giving Section 1373 a narrow reading and recognizing that SB 54 contained an exception for complying with federal law--and thus holding that the two are not in conflict. The court went on to say that SB 54 also does not create an obstacle to federal enforcement, because it merely means that state officials don't cooperate with federal enforcement (and not that they actively stand in the way of federal immigration enforcement).

July 6, 2018 in Cases and Case Materials, Congressional Authority, Federalism, News, Opinion Analysis, Preemption | Permalink | Comments (0)

Saturday, June 16, 2018

Seventh Circuit Denies Motion for Quick Ruling on Nationwide Injunction in Sanctuary Cities Case

The Seventh Circuit this week denied the Justice Department's request to stay the nationwide injunction against the Department in Chicago's sanctuary cities case. The order says that the Seventh Circuit will wait until the Supreme Court rules in Trump v. Hawaii, the travel-ban case, before ruling on the issue.

Recall that a three-judge panel of the Seventh Circuit upheld a nationwide injunction issued by the district court against the Department enforcing two conditions imposed by the Attorney General on the DOJ-JAG/Byrne Grant program. DOJ filed a motion to stay the nationwide injunction pending appeal, and the full Seventh Circuit agreed to review the issue.

This latest round of jockeying came when DOJ sent a letter this week to the Seventh Circuit saying that if the Seventh Circuit didn't rule on its motion to stay the nationwide injunction by COB on June 18, DOJ would take it up with the Supreme Court. The Seventh Circuit interpreted the letter as a motion for an immediate ruling on DOJ's motion for a stay, and rejected it. The court said that it expected that the Supreme Court would have something to say about this in the travel-ban case, and it would await word from the high Court before ruling here.

The ruling makes it likely (or certain?) that DOJ will try to take this (the nationwide injunction) to the Supreme Court as early as Monday.

June 16, 2018 in Cases and Case Materials, Congressional Authority, Courts and Judging, Executive Authority, Federalism, News, Separation of Powers, Spending Clause | Permalink | Comments (0)

Saturday, June 9, 2018

The States' Response to Justice's Filing in the Obamacare Case

Sixteen states plus the District of Columbia responded this week to the Justice Department's brief in the Texas Obamacare challenge. The intervenor-defendants argue that (1) the individual mandate remains within congressional authority under its taxing power (even post Tax Cuts and Jobs Act, which set the tax-penalty at $0), (2) if the individual mandate is unconstitutional, the remedy is to strike that portion of the TCJA setting the tax-penalty at $0 and reinstate the original tax amount (to save it), and (3) even if it's unconstitutional, the rest of the ACA is severable (and thus savable). The states also argue that the plaintiffs lack standing, because they can't be harmed by a $0 tax.

Here's the gist:

First, Plaintiffs are unlikely to prevail on the merits. Continuous production of revenues is not a constitutional requirement for a tax, and the minimum coverage requirement will continue to produce revenue for years to come. If the Court nevertheless concludes that the minimum coverage requirement will become unconstitutional once it ceases to generate revenue, under long-standing and controlling Supreme Court precedent, the proper remedy is to strike the unconstitutional amendment and revert back to hte prior statutory provision which was upheld in NFIB.

If the Court reaches the severability question, it should sever the unconstitutional provision and leave the remainder of the ACA intact, as the Supreme Court has done in almost every case over the past century. The touchstone for any decision about remedy is legislative intent, which a court cannot use its remedial powers to circumvent. Here, the Congress that passed the TCJA expressly and intentionally left the rest of the ACA untouched. Striking down the entire ACA would disregard that intent and impose an outcome that Congress chose not to achieve through the legislative process. Even if the severability inquiry turned on the intent of the Congress that enacted the ACA (and it does not), Plaintiffs have not come close to demonstrating that it is "evident" that Congress would have wished for the entire ACA to be struck down just because a later Congress reduced the tax for not maintaining health insurance to $0.

June 9, 2018 in Cases and Case Materials, Congressional Authority, News | Permalink | Comments (0)

Friday, June 8, 2018

Government Seeks to Strike Key Provisions of Obamacare

The federal government argued yesterday in the Texas Obamacare case that (1) Obamacare's individual mandate is now unconstitutional and (2) therefore the Obamacare pre-existing-conditions ("guaranteed issue") and "community rating" provisions must fall.

The filing (by the federal government as defendant in the case) is an unusual instance of the Justice Department refusing to defend a federal law in court. (Some states, led by California, have moved to intervene to defend the law.)

The filing is also notable for its attempt to pick off just three provisions of Obamacare--the individual mandate, the ban on pre-existing-conditions discrimination, and the community rating provision--while keeping the rest of the Act intact. (This contrasts with the plaintiffs' approach, which seeks to strike all of Obamacare. In this way, the federal government's position--as sweeping as it is--is nevertheless more modest than the position of Texas and the other plaintiffs in the case.)

Here's a summary of the federal government's argument:

1. The individual mandate as it stands effective January 2019 is unconstitutional. That's because Congress, in the Tax Cuts and Jobs Act, enacted earlier this year, eliminated the tax-penalty for not having health insurance beginning in January 2019. Without the tax-penalty, the individual mandate no longer can raise revenue for the federal government. If it can't raise revenue, it can't fall within Congress's power to tax. And, as the Court ruled in NFIB, it also can't fall within Congress's power to regulate interstate commerce. Therefore, the individual mandate, as it will read in January 2019, is unsupported by congressional authority, and is unconstitutional.

2. The requirements that health insurers accept individuals with pre-existing conditions (or the prohibition on discrimination by pre-existing conditions, the "guaranteed issue" provision) and that insurers charge rates within a particular range for a particular community (the "community rating" provision) are inseverable from the individual mandate. (This is the position that the federal government also took in defending the individual mandate in NFIB.) Here's why: Congress has authority under the Commerce Clause to prohibit discrimination and regulate insurance rates. But if Congress only enacted those provisions, without an individual mandate, rates would go through the roof. The only way to keep rates affordable is to require everybody (including people who are healthy now) to get into the insurance pool. That's the individual mandate. Thus, the individual mandate and the other two requirements go hand-in-hand in achieving Congress's goal under the ACA of keeping rates affordable. (The federal government also had a standing argument for why it's only challenging these two provisions: the individual plaintiffs in the case only alleged harms related to these two provisions, and not to the rest of Obamacare.)

3. Because the guaranteed-issue and community-rating provisions are inseverable from the unconstitutional individual mandate, they, too, must fall. But other key portions of Obamacare--including provisions "concerning various insurance regulations, health insurance exchanges and associated subsidies, the employer mandate and Medicaid expansion, and reduced federal healthcare reimbursement rates for hospitals"--are severable, and therefore can remain in place.

It's not clear from the filing whether and how this argument might affect other portions of Obamacare not mentioned, most notably the requirement that insurers allow parents to keep their children on their insurance until age 26.

The government opposed the plaintiffs' request for a preliminary injunction and instead argued that the court should issue declaratory relief, at least until January 2019.

June 8, 2018 in Cases and Case Materials, Commerce Clause, Congressional Authority, News, Taxing Clause | Permalink | Comments (0)

Wednesday, May 30, 2018

Seventh Circuit Rejects Speech and Debate Clause Appeal by Former Congressman Schock

In its opinion in United States v. Schock, a panel of the Seventh Circuit affirmed the denial of a motion to dismiss a criminal indictment by former Illinois Congressperson Aaron Schock (pictured below). Schock was charged with crimes committed as a Congressperson including "filing false or otherwise improper claims for reimbursement for his travel and furnishings, and with failing to report correctly (and pay tax on) those receipts that count as personal income." 

Schock moved the dismiss the indictment as impermissible under the Constitution's Speech or Debate Clause, Art. I §6 cl. 1, which provides that members of Congress “for any Speech or Debate in either House, shall not be questioned in any other Place.” The district judge denied the motion and the Seventh Circuit panel, in its opinion by Judge Easterbrook, allowed an interlocutory appeal. The panel held, however, that "on the merits" the Speech or Debate Clause "does not help Schock, for a simple reason: the indictment arises out of applications for reimbursements, which are not speeches, debates, or any other part of the legislative process." In short, submitting a false claim under established rules differs from the formulation of those rules.

Aaron_Schock_113th_CongressHowever, the court noted that Schock’s principal argument rests on the Rulemaking Clause, Art. I §5 cl. 2, which provides “Each House may determine the Rules of its Proceedings, punish its Members for disorderly Behaviour, and, with the Concurrence of two thirds, expel a Member.”  As the court stated, "the rules about reimbursable expenses were adopted under this clause and, Schock insists, because only the House may adopt or amend its rules, only the House may interpret them. Ambiguity in any rule (or in how a rule applies to a given claim for reimbursement) makes a prosecution impossible, Schock concludes, because that would require a judge to interpret the rules."

The court was not sympathetic to this argument:

Judges regularly interpret, apply, and occasionally nullify rules promulgated by the President or another part of the Executive Branch, as well as statutes enacted by the Legislative Branch; why would reimbursement rules be different?

However, Judge Easterbrook's opinion stated that the court "need not come to closure" on the issue of whether there is something "special" about legislative rules, acknowledging contrary precedent, because an interlocutory appeal on that ground is not available.

Neither the separation of powers generally, nor the Rulemaking Clause in particular, establishes a personal immunity from prosecution or trial. The separation of powers is about the allocation of authority among the branches of the federal government. It is an institutional doctrine rather than a personal one. The Speech or Debate Clause, by contrast, sets up a personal immunity for each legislator. The Supreme Court limits interlocutory appeals to litigants who have a personal immunity—a “right not to be tried.” No personal immunity, no interlocutory appeal.

Thus, Schock can appeal on this basis only after judgment. Judge Easterbrook's opinion foreclosed the possibility of success on this issue by the en banc Seventh Circuit: the opinion was "was circulated before release to all judges in active service;" and "None favored a hearing en banc."

[image of Aaron Schock via]

May 30, 2018 in Congressional Authority, Courts and Judging, Criminal Procedure, Opinion Analysis | Permalink | Comments (0)

Monday, May 14, 2018

Supreme Court Strikes Federal Sports Betting Ban

The Supreme Court ruled today that federal law prohibiting states from authorizing sports gambling violates the anticommandeering principle. The ruling in Murphy v. NCAA strikes the prohibition the federal Professional and Amateur Sports Protection Act (PASPA) and opens the door to state-authorized sports gambling across the country.

While the ruling is potentially quite significant with regard to sports gambling, it does not restrict Congress from regulating or prohibiting sports gambling directly. Congress could enact a new law doing just that.

As to the constitutional law: The ruling says that the anticommandeering principle applies both when Congress requires states to act (which we already knew), and when Congress prohibits states from acting (which we didn't yet know, at least not for sure). That could have implications in the sanctuary cities litigation, which involves, among other things, the federal prohibition against state and local governments from restricting their officers in cooperating with federal immigration agents.

The case arose when New Jersey challenged the prohibition on state-authorized sports gambling in the PASPA under the anticommandeering principle. New Jersey sought to revoke its law prohibiting sports gambling, but the NCAA sued, arguing that New Jersey's proposed revocation violated the PASPA's provision that forbids a state "to sponsor, operate, advertise, promote, license, or authorize by law or compact . . . a lottery, sweepstakes, or other betting, gambling, or wagering scheme" based on a competitive sporting events and forbids "a person to sponsor, operate, advertise, or promote" those gaming schemes if done "pursuant to the law or compact of a governmental entity." (New Jersey did this once before, but was stopped in the lower courts. The Supreme Court denied cert. in that earlier challenge.) (Importantly, PASPA does not make sports betting a federal crime. Instead, it authorizes the Attorney General and professional and amateur sports organizations to sue to halt violations.) New Jersey countered that PASPA violated the anticommandeering principle insofar as it prohibited the state from repealing its ban on sports betting. The lower courts ruled against the state, but the Supreme Court reversed. Justice Alito wrote for the Court.

The Court first held that New Jersey's repeal fell within PASPA's ban on "authorizing" sports betting: "When a State completely or partially repeals old laws banning sports gambling, it 'authorize[s]' that activity."

The Court then ruled that PASPA's prohibition violated the anticommandeering principle. The Court said that it didn't make a difference whether Congress directed a state to act, or prohibited a state from acting; either way, "state legislatures are put under the direct control of Congress."

The PASPA provision at issue here--prohibiting state authorization of sports gambling--violates the anticommandeering rule. That provision unequivocally dictates what a state legislature may and may not do. And this is true under either our interpretation or that advocated by the respondents and the United States. In either event, state legislatures are put under the direct control of Congress. It is as if federal officers were installed in state legislative chambers and were armed with the authority to stop legislators from voting on any offending proposals. A more direct affront to state sovereignty is not easy to imagine.

***

It was a matter of happenstance that the laws challenged in New York and Printz commanded "affirmative" action as opposed to imposing a prohibition. The basic principle--that Congress cannot issue direct orders to state legislatures--applies in either event.

The Court said that PASPA's prohibition on state "licensing" of sports betting similarly violates the anticommandeering principle.

Finally, the Court said that PASPA's prohibition on states from "operat[ing]," "sponsor[ing]," or "promot[ing]" sports gambling schemes, its provisions that prohibit a private actor from "sponsor[ing], operat[ing], advertis[ing], or promot[ing]" sports gambling schemes "pursuant to" state law, and its provisions prohibiting the "advertis[ing]" of sports gambling all cannot be severed and therefore go down, as well.

Justice Thomas concurred in full, but wrote separately "to express [his] growing discomfort with . . . modern severability precedents." In particular, Justice Thomas argued that the Court's severability "precedents appear to be in tension with traditional limits on judicial authority."

Justice Breyer concurred, except to the severability holding on the provision regulating private actors.

Justice Ginsburg, joined by Justice Sotomayor and in part by Justice Breyer, dissented. Justice Ginsburg argued that (assuming arguendo that the state-authorization provision amounted to commandeering) the Court improperly failed to sever the prohibition on state and private-party operations, because they can stand alone.

May 14, 2018 in Cases and Case Materials, Congressional Authority, Federalism, News, Opinion Analysis, Tenth Amendment | Permalink | Comments (0)

Wednesday, April 25, 2018

SCOTUS Hears Oral Arguments in Travel Ban Case

The Court heard oral arguments in Trump v. Hawai'i, releasing same-day audio in the case in recognition of its importance. Recall that the Court granted certiorari to the Ninth Circuit's opinion in Hawai'i v. Trump regarding 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, also known as E.O 3, or Travel Ban 3.0, or Muslim Ban 3.0. The Ninth Circuit, affirming a district judge, found Travel Ban 3.0 unlawful under the Immigration and Nationality Act.  The Court also took certiorari on the Establishment Clause issue. There were also constitutional issues involves standing.

Arguing for the United States and President Trump, Solicitor General Noel Francisco opened and repeatedly stressed that E.O. 3 was the result of a "worldwide multi-agency review." Yet the person of President Trump was a definite, if at times implicit, presence in the argument. For example, during the Solicitor General's argument Justice Kagan posed a hypothetical:

So this is a hypothetical that you've heard a variant of  before that the government has, at any rate,  but I want to just give you. 

So let's say in some future time a -­a President gets elected who is a vehement anti-Semite and says all kinds of denigrating comments about Jews and provokes a lot of resentment and hatred over the course of a campaign and in his presidency and, in course of that, asks his staff or his cabinet members to issue a proc -- to issue recommendations so that he can issue a proclamation of this kind, and they dot all the  i's and they cross all the t's.

And what emerges -- and, again, in the context of this virulent anti-Semitism – what emerges is a proclamation that says no one shall enter from Israel. 

**** “this is a out-of-the-box kind of President in my hypothetical.  And –

(Laughter)

**** And -- and who knows what his heart of hearts is.  I mean, I take that point.  But the question is not really what his heart of hearts is.  The question is what are reasonable observers to think -­

This discussion takes place in the context of whether the deferential standard of Kleindienst v. Mandel (1972) should apply, but also applies to the Establishment Clause problem of whether the EO has a secular purpose under McCreary County v. ACLU of Kentucky (2005).

Belber_SuitcaseArguing for Hawai'i, Neal Katyal stated that Hawai'i did not rely on any campaign statements for intent, but only presidential statements, citing the President's "tweeting of these three virulent anti-Muslim videos" after the present EO was issued, and the presidential spokesperson being asked to explain these retweets saying, according to Katyal's argument, "The President has spoken about exactly this in the proclamation."

Chief Justice Roberts asked whether the taint of any presidential statements "applies forever."  Katyal stressed that the President had not disavowed the statements or moved away from them. 

Justice Breyer, among others, seemed concerned that the exceptions in the policy remained opaque, but Alito flatly stated that "it does not look at all like a Muslim ban."

Predicting outcomes from oral arguments is always a dubious enterprise, but this is undoubtedly a close case. Additionally, the Chief Justice's appearance at the President's State Dinner the evening before oral arguments has caused some to question his impartiality, or, at least the appearance of impartiality.

[image via]

 

April 25, 2018 in Cases and Case Materials, Congressional Authority, Establishment Clause, Executive Authority, First Amendment, Oral Argument Analysis, Supreme Court (US) | Permalink | Comments (0)

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)