Saturday, April 5, 2014
Judge Rosemary M. Collyer (D.D.C.) yesterday dismissed a civil damages claim against government officials for their roles in authorizing the targeted killing of Anwar Al-Aulaqi, his son, and Samir Khan. Judge Collyer wrote in Al-Aulaqi v. Panetta that "special factors" counseled against the Bivens claim.
We've covered Al-Aulaqi's claims extensively (sometimes Al-Awlaki, sometimes Al-Awlaqi), both pre-killing and post-killing, brought by his father, Nasser. Here's our post on Judge Bates's ruling dismissing Nasser's case to stop the killing.
The ruling adds to a body of lower-court cases limiting civil damage remedies against government officials for constitutional violations for actions related to the military, intelligence, and terrorism. Indeed, these cases give government officials a free pass against civil damages claims for any action even loosely related to these areas, even with no showing by the government that the claims raise special factors counseling against a remedy (as this case illustrates--see below).
Nasser Al-Aulaqi brought this claim on behalf of his son Anwar and grandson Abdulrahman, along with Sarah Khan, who brought the claim on behalf of her son Samir. Anwar was designated for targeting; Abdulrahman and Samir were not (they were bystanders in Anwar's targeted killing and another targeted killing). All three were U.S. citizens.
Nasser and Sarah sued government officials in their personal capacity under Bivens for Fourth and Fifth Amendment violations (among others). The officials moved to dismiss, arguing that the complaint failed to state a claim, that special factors counseled against a Bivens remedy, and that they enjoyed qualified immunity.
Judge Collyer ruled that special factors counseled against a Bivens remedy. Citing Doe v. Rumsfeld, Lebron v. Rumsfeld, and Vance v. Rumsfeld, she wrote that military decisions get a pass, and that Bivens ought not be extended to them:
In this delicate area of warmaking, national security, and foreign relations, the judiciary has an exceedingly limited role. This Court is not equipped to qustion, and does not make a finding concerning, Defendants' actions in dealing with AQAP generally or Awar Al-Aulaqi in particular. Its role is much more modest: only to ensure that the circumstances of the exercise of war powers against a specifically-targeted U.S. citizen overseas do not call for the recognition of a new area of Bivens relief.
Here, Congress and the Executive have acted in concert, pursuant to their Constitutional authorities to provide for national defense and to regulate the military. The need to hesitate before implying a Bivens claim is particularly clear. Congress enacted the AUMF, authorizing the Executive to use necessary and appropriate military force against al-Qa'ida and affiliated forces. It is the Executive's position that AQAP is affiliated with al-Qa'ida.
. . .
Permitting Plaintiffs to pursue a Bivens remedy under the circumstances of this case would impermissibly draw the Court into "the heart of executive and military planning and deliberation," as the suit would require the Court to examine national security policy and the military chain of command as well as operational combat decisions regarding the designation of targets and how best to counter threats to the United States.
. . .
Plaintiff's Complaint also raises questions regarding foreign policy because Anwar Al-Aulaqi was a dual U.S.-Yemeni citizen who was killed in Yemen. Plaintiff's suit against top U.S. officials for their role in ordering a missile strike against a dual citizen in a foreign country necessarily implicates foreign policy.
Remarkably, the court so concluded without any help of from the government--even after the court ordered the government to help by providing material in camera and ex parte to support the special-factors defense.
The United States filed a Statement of Interest in the case, stating that it might later assert a state secrets defense. Judge Collyer ordered the government to lodge declarations, in camera and ex parte to explain why special factors counseled against a Bivens remedy in the case. The government refused, arguing that the court could resolve the defendants' motion to dismiss on the complaint alone.
Judge Collyer scolded the government for its refusal--and wrote that this made the court's job "unnecessarily difficult"--but still "cobble[d] together enough judicially-noticeable facts from various records" to conclude that special factors counseled against a Bivens remedy. She wrote that without these facts, the court "would have denied the motion to dismiss."
April 5, 2014 in Cases and Case Materials, Congressional Authority, Courts and Judging, Executive Authority, Fifth Amendment, Jurisdiction of Federal Courts, News, Opinion Analysis, Separation of Powers, War Powers | Permalink | Comments (0) | TrackBack (0)
Tuesday, April 1, 2014
In a divided opinion in Korab v. Fink, a Ninth Circuit panel upheld the constitutionality of Hawai'i's health benefits for a certain class of "nonimmigrant aliens" against an equal protection challenge. The court reversed the preliminary injunction entered by the district judge.
There are several layers of complexity in the case. There is the immigration scheme, including a particular one involving specific nations; the health benefits schemes of both the federal government and the state; and the equal protection doctrine applicable to immigrant status fluctuating depending upon whether the government regulation is federal or state.
Judge Margaret McKeown's relatively brief majority opinion does an excellent job of unweaving and weaving these various strands of complexities in 22 pages. As she explains, in the Personal Responsibility and Work Opportunity Reconciliation Act of 1996, Congress classified "aliens" into three categories for the purpose of federal benefits, including Medicaid: eligible aliens, ineligible aliens, and a third category which allowed state option. The "aliens" at issue are citizens of the Republic of the Marshall Islands, the Federated States of Micronesia, and the Republic of Palau who, under the Compact of Free Association (“COFA”) with the United States, may enter the United States and establish residence as a “nonimmigrant. The "COFA aliens" are in the third category of state option. At one point, Hawai'i included coverage for the COFA "nonimmigrants," but with the advent of Basic Health Hawai'i, its 2010 program, the COFA "nonimmigrants" were excluded. It is the COFA "nonimmigrants" who challenge their exclusion from Basic Health Hawai'i on the basis of equal protection.
Given the federal and state interrelationships, the question of the level of scrutiny that should apply is pertinent. As Judge McKeown explains, "states must generally treat lawfully present aliens the same as citizens, and state classifications based on alienage are subject to strict scrutiny review." In contrast, she states, "federal statutes regulating alien classifications are subject to the easier-to-satisfy rational-basis review." What standard should apply to a "hybrid case" such as Basic Health Hawai‘i, in which a state is following a federal direction? Judge McKeown's majority concludes that rational-basis review applies to Basic Health Hawai'i "because Hawai‘i is merely following the federal direction set forth by Congress under the Welfare Reform Act."
Judge Bybee's concurring opinion, slightly longer than the majority opinion he joined, is an extended argument against equal protection doctrine's applicability in favor of a preemption doctrine.
Judge Richard Clifton, who was appointed to the bench from a private practice in Honolulu, argued that the higher level of scrutiny should be applied essentially because it is Hawai'i that is exercising its state power when in makes the choice.
I acknowledge there is something paradoxical and more than a little unfair in my conclusion that the State of Hawai‘i has discriminated against COFA Residents. The state responded to an option given to it by Congress, albeit an option that I don’t think Congress had the power to give. Hawai‘i provided full Medicaid benefits to COFA Residents for many years, entirely out of its own treasury, because the federal government declined to bear any part of that cost. Rather than terminate benefits completely in 2010, Hawai‘i offered the BHH program to COFA Residents, again from its own pocket. The right of COFA Residents to come to Hawai‘i in the first place derives from the Compacts of Free Association that were negotiated and entered into by the federal government. That a disproportionate share of COFA Residents, from Pacific island nations, come to Hawai‘i as compared to the other forty-nine states is hardly a surprise, given basic geography. The decision by the state not to keep paying the full expense of Medicaid benefits for those aliens is not really a surprise, either. In a larger sense, it is the federal government, not the State of Hawai‘i, that should be deemed responsible.
While Judge Clifton's remarks concluding his dissent focus on the paradox in his opinion, his observations also implicitly point to the paradox at the heart of the majority's decision given that the federal scheme gives the state choices - - - and it was the state that chose to exclude certain "nonimmigrants" from the South Pacific.
April 1, 2014 in Congressional Authority, Disability, Equal Protection, Federalism, Fourteenth Amendment, Interpretation, Medical Decisions, Opinion Analysis, Preemption, Spending Clause | Permalink | Comments (1) | TrackBack (0)
Friday, March 28, 2014
A three-judge panel heard oral arguments this week in one of several cases challenging federal subsidies to health-insurance purchasers on a federal exchange. We posted on those cases here. In short, the plain language of the ACA appears to authorize subsidies for health-insurance purchasers on state exchanges, but not on a federal exchange. This means that individuals who live in a state that declines to establish a state exchange--and instead relies upon a federal exchange--could not get a federal subsidy. So the IRS issued a rule providing subsidies to individuals who purchase on a federal exchange (as well as a state exchange).
That rule is what's at issue in these cases. The plaintiffs argue that the IRS rule (granting subsidies to purchasers on federal exchanges) is inconsistent with the ACA (which, they say, authorizes subsidies only to purchasers on state exchanges). Jason Millman over at the WaPo's Wonkblog explains the significance:
The subsidy question is central to the future survival of the law. Just 14 states and the District of Columbia are running their own exchanges in 2014, while the Department of Health and Human Services is operating 36 state exchanges.
About 85 percent of those signing up for insurance in federal-run exchanges have qualified for financial assistance to purchase coverage. Without those subsidies, the insurance would be less affordable, leaving those with the greatest health needs with more motivation to purchase coverage. That makes for a worse risk mix, driving up the cost of insurance to cover the sicker pool of people, creating what's known as an insurance "death spiral."
The D.C. Circuit is the first appellate court to hear arguments in these challenges. Some accounts said that the panel seemed split, or even leaning toward the plaintiffs, with Judge Raymond Randolph seeming to lean toward the plaintiffs, Judge Harry Edwards seeming to lean toward the government, and Judge Thomas Griffin seeming to be the panel's swing vote. The WSJ covered the arguments here; WaPo's Wonkblog coverd them here; and Bloomberg covered them here.
Monday, March 24, 2014
Conor Friedersdorf writes over at The Atlantic that media coverage of the dispute between Senator Dianne Feinstein and the CIA over the Agency's spying on Congress wrongly puts concerns about CIA oversight on par with concerns about Senate investigations in the separation-of-powers calculus.
Recall that Senator Feinstein recently criticized the CIA for spying on the Senate Intelligence Committee. The CIA responded that Committee staff improperly obtained CIA material in its investigation of CIA detention and interrogation policies. Both matters are now at the DOJ.
Friedersdorf argues (persuasively) that media coverage of the competing claims wrongly puts them on par. He says that the Senate Intelligence Committee is supposed to investigate the CIA (it is), and that even if Committee staff obtained CIA information, it was information that the CIA was supposed to turn over anyway. The real transgression is not Committee oversight; it's the CIA's spying on Congress.
What vexes me about how this dispute is being covered . . . is the false equivalence implicit in the juxtaposition: as if the CIA and the Senate committee stand accused of like transgressions. If the charges against the CIA are true, our nation's foreign spy agency, which is forbidden from conducting any surveillance in the U.S., snooped on our legislature. That's a transgression against our constitutional framework.
At the same time:
Are we prepared to accept that, during a comprehensive congressional inquiry into torture, the CIA was justified in withholding torture documents? Senate staffers committed no great sin in getting documents wrongly denied them.
Wednesday, March 19, 2014
Judge Eric Melgren (D. Kansas) today ordered the federal Election Assistance Commission to add language to state-specific instructions on the federal voter registration form for Arizona and Kansas that would require voter registration applicants to show proof of citizenship.
Arizona and Kansas previously announced that they would adopt a two-tier registration system, one for state elections and one for federal elections, in response to the Supreme Court's ruling last summer in Arizona v. Inter Tribal Council of Arizona, Inc. Recall that in that case the Court ruled that the National Voter Registration Act, which requires states to "accept and use" a uniform federal form to register voters for federal elections, preempted an Arizona law that required state officials to reject any application for registration that wasn't accompanied by proof of citizenship. The NVRA federal form simply required applicants to aver, under penalty of perjury, that they satisfy state requirements for voter registration. The Court said that Arizona impermissibly required more.
Arizona and Kansas announced, in response to Inter Tribal Council, that they'd simply adopt a two-tiered system. That is, they'd continue to "accept and use" the federal form (without additional proof of citizenship) for registration for federal elections, and they'd use their own state form (with an additional requirement for documentary proof of citizenship) for state elections.
That seemed inefficient (among other things), to say the least.
Now, Judge Melgren's ruling, if upheld, might mean that Arizona and Kansas would ditch their efforts to create the two-tiered system, because they'd get what they want on the federal form--proof of each applicant's citizenship.
The ruling, if upheld, also invites other states to follow suit and get their own state-specific instructions on the NVRA federal form that would require additional documentary proof of citizenship. This could create hassles for registration through the federal form, even though a primary goal of that form was to make registration simpler. If many states did this, they could undermine the ease of registration that the NVRA was designed to promote.
The case, Kobach v. USEAC, grew out of Arizona's and Kansas's requests to the EAC to include state-specific instructions on the federal voter registration form that would require voter registration applicants in those states to show proof of citizenship. The states' requests came on the heels of the Supreme Court's ruling last summer in Arizona v. Inter Tribal Council of Arizona, Inc.
The Court said that the NVRA preempted Arizona's proof-of-citizenship requirement, but it also said that a state could ask the EAC to add a proof-of-citizenship requirement on the state-specific instructions that accompany the NVRA federal form.
That's exactly what Kansas and Arizona did. The EAC declined, and the states sued, arguing that the EAC's decision violated the Administrative Procedures Act, among other things.
Judge Melgren agreed. He ruled that the adding the state-specific instructions on the NVRA federal form (to provide proof of citizenship) could be harmonized with the NVRA (and that the NVRA didn't preempt state law on this point):
But the NVRA does not include a similar clear and manifest prohibition against a state requiring documentary proof of citizenship. In fact, the NVRA does not address documentary proof of citizenship at all, neither allowing it nor prohibiting it. Therefore, the Court must find that the NVRA is silent on the subject. Because Congress has not addressed the same subject as the state law, there is no basis to determine that the NVRA has preempted Arizona or Kansas law on the subject of documentary proof of citizenship.
Moreover, Judge Melgren said that not allowing Kansas's and Arizona's requested instructions would raise serious constitutional questions--that is, whether the NVRA intrudes too much on state authority to set the qualifications of voters for state and federal elections under the Elections Clause. Judge Melgren wrote that requiring the EAC to include the requested state-specific instructions would avoid this question.
Tuesday, March 11, 2014
Senator Dianne Feinstein, the head of the Senate Intelligence Committee, railed against CIA searches of the Committee computer network in a speech on the Senate floor today. Senator Feinstein said the searches violated separation of powers, the Senate's constitutional investigation and oversight powers, and the Fourth Amendment, among other things.
The CIA allegedly searched Committee computers to determine how Committee staff obtained certain documents related to CIA detention and interrogation policies. (CIA Director John Brennan denied this.) The CIA Inspector General referred the matter to the Justice Department.
In a related matter, the CIA General Counsel asked the Justice Department to investigate whether Committee staff improperly obtained CIA material. Senator Feinstein said that this move was designed to intimidate the Committee.
As a result, DOJ is apparently investigating two issues: whether the CIA improperly spied on the Committee, and whether Committee staff improperly obtained certain CIA material. The NYT has a good back-grounder here.
Monday, March 3, 2014
The United States Supreme Court today granted certiorari in Holt [Muhammad] v. Hobbs, later issuing a clarifying order:
The petition for a writ of certiorari is granted limited to the following question: “whether the Arkansas Department of Correction’s grooming policy violates the Religious Land Use and Institutionalized Persons Act of 2000, 42 U. S. C. §2000cc et seq., to the extent that it prohibits petitioner from growing a one—half—inch beard in accordance with his religious beliefs.”
Recall that the Religious Land Use and Institutionalized Persons Act - - - RLUIPA - - - essentially reinstates the "strict scrutiny" standard of the pre-Smith [Employment Div. Dep't of Human Resources v. Smith] cases to a more limited set of circumstances than Congress did with RFRA, held unconstitutional as applied to the states as exceeding §5 of the Fourteenth Amendment in City of Boerne v. Flores. RLUIPA arguably gives prisoners more free exercise of religion protection than the general public, though in cases, prison security often provides a sufficient compelling governmental interest that is being further by the least restrictive means and thus overcome a prisoner's religious freedom.
Many RLUIPA claims concern grooming as I discuss in Dressing Constitutionally. For Muslim male inmates, the question of facial hair has been prominent. While some circuits have rejected RLUIPA claims, crediting the administrative costs of special scissors necessary to not completely shave prisoners, other courts have upheld RLUIPA claims, finding that prison officials did not satisfy the compelling government standard achieved by the least restrictive means.
The Eighth Circuit's opinion in Holt v. Hobbs is typically cursory at three pages. Here's the court's analysis:
we conclude that defendants met their burden under RLUIPA of establishing that ADC’s grooming policy was the least restrictive means of furthering a compelling penological interest, see Fegans v. Norris, 537 F.3d 897, 903 (8th Cir. 2008) (absent substantial evidence in record indicating that response of prison officials to security concerns is exaggerated, courts should ordinarily defer to their expert judgment in such matters), notwithstanding Mr. Holt’s citation to cases indicating that prisons in other jurisdictions have been able to meet their security needs while allowing inmates to maintain facial hair, see id. at 905 (although prison policies from other jurisdictions provide some evidence as to feasibility of implementing less restrictive means of achieving prison safety and security, it does not outweigh deference owed to expert judgment of prison officials who are more familiar with their own institutions).
The court's reliance on Fegans v. Norris, involving the Arkansas Department of Corrections restriction on hair length for male (but not female) inmates, is not surprising. Fegans is a particularly deferential decision by the Eighth Circuit - - - it almost seems as if the court applied rational basis rather than the strict scrutiny required by RLUIPA.
The Court's grant of certiorari in Holt v. Hobbs might bring some clarity to the religious freedom for prisoners in the grooming context.
Thursday, February 27, 2014
Pro Publica has a concise list of state-by-state changes to voting laws since the Supreme Court's ruling last summer in Shelby County. The page includes an interactive map that shows how previously covered jurisdictions have taken advantage of their lack of coverage to impose tighter voting requirements.
Recall that the Supreme Court ruled last summer in Shelby County that Section 4 of the Voting Rights Act, the coverage formula for the preclearance provision (in Section 5), exceeded congressional authority. Chief Justice Roberts wrote that "things had changed" since Congress enacted the VRA in 1965, but that the preclearance coverage formula hadn't kept pace. Moreover, he wrote that a coverage formula that treats states differently, as Sections 4 and 5 did, violated a newly minted principle of equal state sovereignty.
In the immediate wake of the ruling, previously covered jurisdictions like Texas and North Carolina moved swiftly to enact more restrictive voting requirements that were previously denied preclearance--bold, in-your-face moves that illustrated the impact of the Court's ruling. Since that time, more jurisdictions, many of them previously covered jurisdictions, have similarly tightened voting requirements in ways that will likely have disparate impacts on poor and racial minority communities.
Tuesday, February 11, 2014
A divided panel of the D.C. Circuit ruled today in Aamer v. Obama that Guantanamo detainees may bring a habeas corpus claim in federal court challenging their forced-feeding by the government, but that that claim is not likely to succeed.
The ruling is notable, because it's the first time a federal appellate court ruled that Guantanamo detainees could bring a habeas claim to challenge their conditions of confinement (as opposed to the fact of their confinement).
The ruling is likely to bring a host of new habeas claims from detainees at Guantanamo--challenging not just the fact of their detention (the kind we've already seen) but also the conditions of their confinement. It may also bring a congressional response--to foreclose those claims.
The court also ruled that the detainees' challenge to their forced-feeding was not likely to succeed.
Some background: Congress enacted two provisions in the MCA designed to strip federal courts of jurisdiction over Guantanamo detainees' claims. The first, at 28 U.S.C. Sec. 2241(e)(1), purports to strip federal courts of jurisdiction over Guantanamo detainees' habeas claims challenging the fact of their detention:
No court, justice, or judge shall have jurisdiction to hear or consider an application for a writ of habeas corpus filed by or on behalf of an alien detained by the United States who has been determined by the United States to have been properly detained as an enemy combatant or is awaiting such determination.
The Supreme Court struck the provision in Boumediene v. Bush (2008), holding that Congress couldn't eliminate habeas jurisdiction over Guantanamo detainees without complying with the requirements of the Suspension Clause (which it had not).
The second provision, at 28 U.S.C. Sec. 2241(e)(2), purports to strip courts of jurisdiction over Guantanamo detainees' "other" claims challenging the conditions of their confinement:
Except as provided [in section 1005(e) of the DTA], no court, justice, or judge shall have jurisdiction to hear or consider any other action against the United States or its agents relating to any aspect of the detention, transfer, treatment, trial, or conditions of confinement of an alien who is or was determined by the United States to have been properly detained as an enemy combatant or is awaiting such determination.
The D.C. Circuit previously confirmed that this latter section continued in force after Boumediene (because Boumediene dealt only with the habeas-stripping Section 2241(e)(1)), and lower court judges have ruled that it bars Guantanamo detainees from bringing habeas claims challenging their conditions of confinement (because those habeas claims were "other" claims challenging the conditions of confinement).
The D.C. Circuit ruled that it does not bar detainees' habeas claims, and that detainees may bring statutory habeas claims challenging the conditions of their confinement.
In answering the question, the court said that the two different parts of Section 2241(e) meant that Congress attempted in the MCA to bar (1) habeas claims and (2) "other" claims (i.e., non-habeas claims). It said that Section 2241(e)(2), in barring "other" claims, had no impact on habeas claims. And it said that Boumediene struck Section 2241(e)(1).
So, if the detainees brought a habeas claim, it would have been covered by Section 2241(e)(1), and because that provision was struck, their habeas claim survives.
The core question, then, is whether habeas (any habeas, at Guantanamo or not) extends not only to the fact of confinement (everyone agrees it does) but also to the conditions of confinement (that's where the parties disagreed). The court said that the Supreme Court left this question open, and that there is a split among the circuits. Still, it said that in the D.C. Circuit habeas extends both to fact-of-confinement and to treatment claims:
The availability of habeas for both types of challenges simply reflects the extension of the basic principle that "[h]abeas is at its core a remedy for unlawful executive detention." Munaf v. Geren. The illegality of a petitioner's custody may flow from the fact of detention . . . the duration of detention . . . the place of detention . . . or the conditions of detention. In all such cases, the habeas petitioner's essential claim is that his custody in some way violates the law, and he may employ the writ to remedy such illegality.
Because the detainees' claim was a habeas claim that would have fallen under Section 2241(e)(1), and because Section 2241(e)(2) bars only with "other" (non-habeas) claims and therefore doesn't affect the detainees' habeas claim at all, and because the Supreme Court struck Section 2241(e)(1), the detainees' habeas claim can go forward.
The court noted that Congress has been entirely silent on this--and has not acted to strip courts of jurisdiction over this kind of claim.
Judge Williams dissented, arguing that the detainees' claim does not sound in habeas and therefore is barred under Section 2241(e)(2).
The court also ruled that the detainees failed to show a likelihood of success on the merits of their force-feeding claims. The court said that there were valid penological interests in force-feeding hunger-striking detainees that outweighed the detainees' liberty interest. The court also said that the Religious Freedom Restoration Act does not extend to Guantanamo detainees, who, as nonresident aliens, do not qualify as protected "person[s]" under the RFRA.
The court affirmed the lower court's denial of a preliminary injunction, sending the case back for more on the merits.
February 11, 2014 in Cases and Case Materials, Congressional Authority, Due Process (Substantive), Executive Authority, Fundamental Rights, Habeas Corpus, Jurisdiction of Federal Courts, News, Separation of Powers | Permalink | Comments (0) | TrackBack (0)
Labeled "The Day We Fight Back Against Mass Surveillance," February 11, 2014 has been designated as a day to "make calls and drive emails to lawmakers" regarding two pieces of legislation.
The activists support the USA Freedom Act, S 1599 ("Uniting and Strengthening America by Fulfilling Rights and Ending Eavesdropping, Dragnet-collection, and Online Monitoring Act). The Electronic Frontier Foundation supports the bill, but considers it a "floor not a ceiling" and discusses its limitations including not covering persons outside the US, encryption, and standing issues. The ACLU legislative counsel "strongly supports" the legislation, noting that while it is not perfect, it is an "important first step," and highlights the fact that one of the sponsors in the House of Representatives is Rep. Jim Sensenbrenner (R-WI), who "was the lead author of the Patriot Act and now is the chair of the House's Subcommittee on Terrorism and Crime."
The activists urge the rejection of The FISA Improvements Act S 1631, most closely associated with the bill's sponsor, Dianne Feinstein.
While focused on legislative action, many of the materials and arguments ground themselves in the First and Fourth Amendments. Organizers state that the day commemorates Aaron Swartz, who also invoked constitutional norms.
February 11, 2014 in Congressional Authority, Criminal Procedure, Current Affairs, Executive Authority, First Amendment, Fourth Amendment, State Secrets, Web/Tech | Permalink | Comments (0) | TrackBack (0)
Monday, February 10, 2014
A new digital publication, The Intercept, created by Glenn Greenwald, Laura Poitras, and Jeremy Scahill, launched today. It describes itself as devoted to reporting on the documents previously provided by NSA whistleblower Edward Snowden, and in the longer term, to broaden its scope.
Included is the article "The NSA’s Secret Role in the U.S. Assassination Program" by Scahill and Greenwald, arguing that the NSA uses electronic surveillance, rather than human intelligence, as the primary method to locate targets for lethal drone strikes, which is "an unreliable tactic that results in the deaths of innocent or unidentified people."
The article relies on a variety of sources, confidential and not, to paint a portrait of the "targeted killing" program. It ends by implicating President Obama:
Whether or not Obama is fully aware of the errors built into the program of targeted assassination, he and his top advisors have repeatedly made clear that the president himself directly oversees the drone operation and takes full responsibility for it.
And Obama may even think it's one a "strong suit" of his.
This will definitely be a publication to watch for anyone interested in Executive, military, and other government powers.
Thursday, January 30, 2014
The Fourth Circuit ruled this week in Montgomery County, Maryland v. Federal National Mortgage Association that Fannie Mae and Freddie Mac enjoy statutory immunity certain state and local taxes--and that this congressionally granted immunity is not unconstitutional.
The ruling is a rejection of some of the more aggressive states'-rights theories that we've heard in other contexts. It underscores federal supremacy, even in the area of state and local taxes. It's not a surprising ruling, but the court's flat rejection of certain of the plaintiffs' states-rights arguments is notable.
The case arose out of Fannie's and Freddie's refusal to pay state and local transfer and recording taxes on foreclosed properties that they sought to sell. Fannie and Freddie cited their federal statutory exemption, which exempts Fannie and Freddie generally from state and local taxes, "except that any real property of [either entity] shall be subject to State, territorial, county, municipal, or local taxation to the same extent as other real property is taxed."
The court distinguished between property taxes (not exempt under the statute) and transfer taxes (exempt) and ruled that Fannie and Freddie were exempt under the plain language.
But that's not the interesting part. The court also ruled that Congress had authority to grant the exemption, and that it didn't run afoul of federalism principles.
The court rejected the plaintiffs' contention that Fannie's and Freddie's property sales were local in nature, and therefore outside Congress's Commerce Clause authority. "In this case, the overall statutory schemes establishing Fannie Mae and Freddie Mac are clearly directed at the regulation of interstate economic activity." The court also rejected the novel contention that the sweep of congressional authority here should be judged under a strict scrutiny standard (and not traditional rational basis review), because the exemption intruded into an area of state sovereignty. "The Counties' analogy to the Fifth and Fourteenth Amendments fails because there is not independent constitutional protection for the States' right to tax."
The court also rejected the plaintiffs' contentions that the exemption violated federalism principles. The court said that the exemption didn't commandeer states or state officials, that it didn't violate the Tenth Amendment (because Congress acted within its Commerce Clause authority), and that Congress can exempt non-government entities like Fannie and Freddie.
Tuesday, January 28, 2014
President Obama will announce tonight during his State of the Union speech that he will increase the minimum wage for federal contractors from $7.25 per hour to $10.10 per hour. He'll do this by executive order, without specific congressional authorization or action, and notwithstanding the statutory minimum wage of $7.25.
Can he do this?
Some Republicans have cried foul, arguing that the action exceeds the President's Article II authority and thus violates the Constitution. But the action is hardly unprecedented, and probably supported by the President's statutory authority, let alone his constitutional authority over the executive branch. In other words, the action is probably a valid exercise of power that Congress granted the President, not a usurpation of power in violation of Article II limits.
Republicans who have criticized the action point to the federal statutory minimum wage. They say that the federal statutory minimum wage, $7.25 per hour, set in the Fair Labor Standards Act, limits Presidential authority to order a higher minimum wage for government contractors. Indeed, the FLSA says that "[e]very employer shall pay . . . wages . . . not less than . . . $7.25 an hour . . . ." FLSA Section 206.
But the FLSA sets a floor. Nothing in the FLSA prevents an employer from paying more than the minimum. And nothing prevents the President from ordering executive agencies to require contract bids to include wages higher than the minimum.
Indeed, another federal statute, the Federal Property and Adminstrative Services Act of 1949, or FPASA, seems specifically to authorize this kind of action. The FPASA was designed to centralize government property management and to use the same kind of flexibility in the public procurement process that characterizes like transactions in the private sector. The Act thus gives the President a great deal of authority to prescribe policies related to government procurement. For example, it says that the President "may prescribe such policies and directives that the President considers necessary to carry out this subtitle. . . ." 40 U.S.C. Sec. 121.
The D.C. Circuit relied on the predecessor to that section in 1979 in AFL-CIO v. Kahn, 618 F.2d 784, to uphold President Carter's EO directing the Council on Wage and Price Stability to establish voluntary wage and price standards for noninflationary behavior for the entire economy. The Kahn court also recognized that other presidents had imposed similar requirements on government contractors, like President Johnson's EO that federal contractors not discriminate based on age, a GSA regulation requiring that procurement of materials and supplies for use outside the U.S. be restricted to goods produced within the U.S., and President Nixon's EO excluding certain state prisoners from employment on federal contract work. Indeed, there's a long line of similar requirements imposed by Presidents.
The D.C. Circuit didn't even apply Justice Jackson's Youngstown framework to the problem, because the President simply relied on his statutory authority under the FPASA, not inherent Article II authority. The court treated the case as an exercise in statutory construction--whether the President had authority under the FPASA.
Given the nature of the minimum wage in the FLSA, and given the President's broad authority to prescribe policies to enhance government contracting, President Obama almost surely has authority to require government contractors to use a higher minimum wage. And that's not even considering any inherent Article II authority the President may have over government contractors.
That's not to say that Congress doesn't have a check. If Congress wants to block the President's action, it probably can--by enacting a statute that specifically proscribes a higher minimum wage. (If Congress were to do this, then inherent Article II power over government contractors, if any, becomes important.) But current law doesn't seem to do that.
For more, including a nice history and summary of court rulings, check out this report by the Congressional Research Staff, Presidential Authority to Impose Requirements on Government Contractors.
Thursday, January 23, 2014
As we discussed yesterday, bipartisan legislation has been introduced in Congress that would amend the Voting Rights Act and recalibrate the coverage formula for preclearance, as a response the the Court's holding in Shelby v. Holder that section 4(b) of the VRA was unconstitutional.
Tolson argues that while
there are some aspects of the legislation that may displease civil rights organizations, particularly the exemption of voter identification laws from coverage under the new formula, the proposal is a strong start to address the gaping hole in the preclearance regime created by the Court's decision in Shelby County.
But in some respects, she contends, the proposed legislation may go too far.
She argues that the proposed amendments to section 3(c) of the VRA are "alarming because they place a bull's eye squarely on the back of section 3(c)" as well as section 2. She notes that section 3(c) of the VRA is constitutional precisely "because its intentional discrimination requirement is identical to the constitutional standard for establishing violations of the Fourteenth and Fifteenth Amendments."
She concludes that the "legislative focus should be limited to replacing the coverage formula and leaving section 3(c) alone."
Worth a read for anyone considering the proposed amendments to the VRA and the legacy of Shelby v. Holder.
Wednesday, January 22, 2014
Senator Patrick Leahy (D-VT) and Representatives Jim Sensenbrenner (R-WI) and John Conyers (D-MI) introduced legislation last week that would amend the Voting Rights Act and recalibrate the coverage formula for preclearance. The legislation responds to the Supreme Court's ruling last summer in Shelby County v. Holder, striking Section 4(b) of the VRA, the coverage formula for the preclearance requirement. That ruling left Section 5 preclearance nearly a dead letter (although litigants could still seek to have a court order a jurisdiction to bail-in to preclearance under Section 3).
The bills would update the coverage formula to include states that have 5 or more voting rights violations during the previous 15 years and political subdivisions that have 3 or more voting rights violations during the previous 15 years. (Coverage would continue for 10 years, unless the jurisdiction gets a court order releasing it.) This new formula would cover Georgia, Louisiana, Misissippi, and Texas, but not Alabama, Arizona, Florida, North Carolina, South Carolina, and Virginia.
The bills also contain a number of other provisions, perhaps most notably expanding Section 3 bail-in so that litigants can ask a court to bail-in a jurisdiction when that jurisdiction has intentionally discriminated (as now) and for any other violation of the VRA. Ari Berman over at The Nation has a nice summary.
The new provisions will undoubtedly be challenged when and if they're enacted. On the one hand, they address a major concern of the Court in Shelby County: they update the coverage formula to use more current violations as the basis for coverage. But on the other hand, they still treat states differently (and potentially run afoul of the Court's new-found "equal sovereignty" doctrine), and the state-wide formula does not account for actual voter turn-out (although the political subdivision formula does) and neither formula addresses the number of elected officials--data that the Court found at least relevant in its ruling.
January 22, 2014 in Cases and Case Materials, Congressional Authority, Elections and Voting, Federalism, Fifteenth Amendment, Fourteenth Amendment, News, Race, Recent Cases, Reconstruction Era Amendments | Permalink | Comments (1) | TrackBack (0)
Saturday, January 18, 2014
Julie Ebenstein of the ACLU writes on Jurist.org that the dual system of voter registration in Kansas unlawfully denies citizens the right to vote. Ebenstein outlines the Kansas case challenging the dual system under state constitutional provisions, filed last November and now pending in state court.
As we wrote, two states, Arizona and Kansas, adopted a dual system of voter registration in the wake of the Supreme Court's ruling last summer in Arizona v. Inter Tribal Council of Arizona. In that case, the Court held that the requirement under the National Voter Registration Act that states "accept and use" an approved and uniform federal form for registering voters preempted Arizona's requirement that voters present evidence of citizenship at registration. (The NVRA form requires applicants simply to attest to their citizenship, not to provide additional documentation.)
Arizona and Kansas then announced that they would require voters to register separately for state and federal elections. This created a dual system of voter registration: NVRA and state-form registrants before January 1, 2013, can vote in both state and federal elections; but NVRA registrants after January 1, 2013, can vote in only federal elections. (NVRA registrants after that date also can't sign petitions.) Now only state-form registrants who provide the additional proof of citizenship can vote in state elections. State-form registrants who fail to provide the additional proof of citizenship cannot vote at all.
The ACLU and ACLU of Kansas filed suit last November challenging the dual registration system. The complaint, filed in state court, alleges that the system violates state constitutional equal protection by distinguishing between classes of voters in the state, that state officials exceeded their state constitutional authority, and that the system wasn't properly promulgated as a rule or regulation under Kansas law.
January 18, 2014 in Cases and Case Materials, Comparative Constitutionalism, Congressional Authority, Elections and Voting, Equal Protection, Federalism, News, Preemption, State Constitutional Law | Permalink | Comments (0) | TrackBack (0)
Wednesday, January 15, 2014
Judge Paul Friedman today upheld an IRS rule that extends tax credits to individuals purchasing health insurance on a federally-facilitated exchange under Obamacare. The ruling in Halbig v. Sebelius deals a blow to opponents of Obamacare in one of the several cases against the Act still percolating in the courts. We wrote on some of those cases and issues most recently here. Politico reports on this case here.
The case was a challenge to an IRS rule that extended tax credits not only to health-insurance purchasers on state exchanges, but also to health insurance purchasers on federally-facilitated exchanges. That's a problem, the plaintiffs said, because the ACA didn't authorize the IRS to extend credits to purchasers on federally-facilitated exchanges.
In particular, the ACA calculates the credit based in part on the premium expenses for the health plan "enrolled in [by the individual] through an Exchange established by the State . . . ." (Emphasis added.) But the IRS rule makes tax credits available to qualifying individuals who purchase health insurance on state-run or federally-facilitated exchanges.
A group of individuals and employers residing in states that have declined to establish state exchanges sued, arguing that the IRS exceeded its authority under the ACA in extending tax credits to individuals in states without exchanges (and where the federal government facilitates the exchange).
You might wonder about standing, given that the rule is designed to make insurance cheaper. The court said at least one plaintiff had standing. That's because one plaintiff lives in a state that declined to create an exchange, plans to earn $20,000 in 2014, and does not plan to enroll in a health insurance plan. That plaintiff also introduced evidence that the cost of minimum health insurance coverage, if unsubsidized, would exceed eight percent of his income, allowing him to qualify for an unaffordability exemption. But the IRS rule would lower the cost of his insurance premiums so significantly that he no longer qualifies for the unaffordability exemption. As a result, the IRS rule means that he (1) has to purchase subsidized health insurance at about $20 per year or (2) has to pay some higher amount per year as a tax penalty (for not buying health insurance). Because the rule encourages him to buy insurance--and that costs money (more than the exemption), even if only $20 a year--he has standing. The irony wasn't lost on the court: "Counterintuitively, by making health insurance more affordable, the IRS Rule imposes a financial cost on Klemencic."As to the merits, the court said that the ACA is ambiguous when it extends credits to purchasers on exchanges "established by the State." That's because the ACA, taken as a whole (and not just the limited provision cited by the plaintiffs, taken in isolation), can be reasonably understood to assume that states establish exchanges, and to leave it to the federal government to step in and establish an exchange only when a state declines to do so. When the federal government does this, the court said, then it (the federal government) creates an exchange "established by the State." "In other words, even where a state does not actually establish an Exchange, the federal government can create 'an Exchange established by the State . . .' on behalf of that state."The court also said that other provisions of the ACA suggest that Congress intended to extend credits to purchasers on federally-facilitated exchanges, and that those provisions would clash with the plaintiffs' preferred reading of the Act.
January 15, 2014 in Cases and Case Materials, Congressional Authority, Executive Authority, Jurisdiction of Federal Courts, News, Separation of Powers, Standing | Permalink | Comments (0) | TrackBack (0)
Monday, January 13, 2014
The Supreme Court heard oral arguments today in NLRB v. Noel Canning, the case testing whether the President may make recess appointments to positions already vacant during an intra-session recess of the Senate. Our argument preview is here.
The Court today was especially sensitive to the many thorny doctrinal, practical, and political issues in the case, and seemed to be looking for a simple solution that would dodge them. The ordinary appointments process (with advice and consent of the Senate), as suggested by Chief Justice Roberts and Justice Ginsburg (see below), may well be that solution. If so, the Court might read the Recess Appointments Clause more restrictively in this case, limiting the President's recess-appointments authority, and giving more power to the Senate to hold up executive appointments by declining to recess.
The case presents three questions about the Recess Appointments Clause:
1. Does "the Recess of the Senate" include intra-session breaks, or recesses?
2. Do "Vacancies that may happen during the Recess" include vacancies that already existed?
3. Can the President exercise the recess-appoitnment power when the Senate convenes only every three days in pro forma sessions?
The arguments included the predictable points on text and history--interpretations of "the Recess," the clause "may happen," and historical practices and understandings. (If anything, these arguments only revealed how indeterminate and contestable these sources can be. See, e.g., the discussion on the OED's definitions of "happen" starting at about page 60 or so of the transcript, and the points over practices running throughout the arguments.) The particular concern with the words "may happen" suggest one possible outcome: the Court could rule that while "the Recess" includes intra-session recesses, "may happen" extends only to vacancies that occur (not already exist) during a recess.
But the more interesting--and probably more important--points were on balance-of-powers principles and practical implications--against the obvious backdrop of partisan politics.
Indeed, what started in the briefing as a debate principally about the meaning and practice of the Recess Appointment Clause turned quickly today into a debate about executive power and whether the Senate encroached on executive recess-appointment power by meeting in pro forma sessions and thus denying the President a recess in which to make recess appointments. General Verrilli pushed the argument on executive authority beyond a mere point on when the Senate is in "recess," claiming broadly that the President should get to fill all vacancies. Justice Alito put a fine point on it:
But you are making a very, very aggressive argument in favor of executive power now and it has nothing whatsoever to do with whether the Senate is in session or not. You're just saying when the Senate acts, in your view, irresponsibly and refuses to confirm nominations, then the President must be able to fill those--fill those positions. That's what you're arguing. I don't see what that has to do with whether the Senate is in session.
But Noel Canning and the Senate Minority Leader both took aggressive positions the other way, saying that the Senate gets to decide when it's on recess--even saying that it's never on recess--thus severely limiting the President's recess appoitment power. Respondents argued that the President has come to use the recess appointment power to deal with Senate intransigence, not emergencies--an argument that seemed to resonate with the Court.
Chief Justice Roberts and Justice Kagan both seemed concerned that such an important balance-of-powers issue could turn on magic language in a Senate resolution, for example, as here, that says "No business shall be conducted." Chief Justice Roberts said that this maybe made the point not so important. Justice Kagan said that focusing on the phrasing of a Senate resolution could just land the case back at the Court, and that focusing on this kind of formalism suggests that it really is the Senate's responsibility to determine when it's in session or not. But General Verrilli responded that the recess appointment power is an executive authority, "[a]nd the President has got to make a determination of when there's a recess"--that the Senate's use of pro forma sessions to stay in session (and not on recess) is an encroachment on Article II Recess Appointment power.
The Court was also concerned about how to balance text against practice. Justice Scalia posed this question:
What do you do when there is a practice that--that flatly contradicts a clear text of the Constitution? Which--which of the two prevails?
General Verrilli responded:
The answer is I think, given this--a practice going back to the founding of the Republic, the practice should be--the practice should govern, but we don't have that here. This provision has been subject to contention as to its meaning since the first days of the Republic.
Justices Alito and Kagan asked the same question to Noel Canning, and got the exact opposite answer.
The Court was also concerned about a related problem: If the government gets its way, it appears that the Senate violated the 20th Amendment and the Adjournment Clause. Justices Breyer and Alito both suggested that the Court would rather avoid that conclusion.
These more theoretical issues are serious, to be sure, but they may not be necessary to resolve the case. The Court was equally, or more, concerned about the practical implications of the case--in particular, how a ruling could affect already-made decisions by the NLRB, other government agencies, and even the courts (because of recess-appointed judges). Chief Justice Roberts and Justices Sotomayor and Ginsburg asked about this; Justice Scalia suggested a way out of this problem, the de facto officer doctrine; still General Verrilli said that "it certainly casts a serious cloud over the legitimacy of all those actions."
Also focusing on the practical aspects of the case, Chief Justice Roberts and Justice Ginsburg both wondered why the President couldn't just use the ordinary appointment process (and why the Senate couldn't decline to confirm)--in other words, why the government says that the pro forma sessions and lack of intra-session recess appointment power is a problem. Justice Scalia pointed out that the President can convene Congress (under Article II, Section 3, "He may, on extraordinary occasions, convene both houses"), and that Congress can get back within a day or so to deal with appointments.
Finally, Justice Breyer and Justice Kagan both asked about the politics--the shifting positions of the parties, depending on who is in the White House, and the President's use of the recess appointment power to deal with congressional intrasingence, not emergencies. General Verrilli responded that the Senate's advice-and-consent role is much larger today than the framers anticipated, and that today it encroaches on the President's appointment power--trying to take the case out of ordinary politics and place it back in larger balance-of-powers issues.
January 13, 2014 in Appointment and Removal Powers, Cases and Case Materials, Congressional Authority, Executive Authority, News, Oral Argument Analysis, Separation of Powers | Permalink | Comments (0) | TrackBack (0)
Tuesday, January 7, 2014
As we explained, there really is no exemption. Instead, it's an OPM attempt to put members and staffers of Congress more-or-less in the position they were prior to Obamacare--just like any other employees of large corporations with employer-subsidized health insurance. In other words, Obamacare treated members and staffers differently (worse) than other similarly situated employees (by requiring them to enter an exchange instead of continue their employer-subsidized health insurance), and the OPM simply acted to continue an employer subsidy for them.
Still, there's the question whether OPM had authority to do this. That's what Johnson's suit is about (from the complaint):
The legal problem is that the OPM Rule violates the ACA and the federal statutes that apply to the [Federal Employee Health Benefit Plan]. The health plans offered through the exchanges are not OPM-negotiated large group health insurance plans. Only OPM-negotiated and contracted-for plans can be offered to federal employees through the FEHBP. Furthermore, the designated Exchange plans do not meet the statutory requirements for FEHBP plans administered by the OPM. In addition, the federal government does not meet the definition of a small business and, as a result, is not eligible to participate in a SHOP exchange. Neither the ACA nor any other applicable statute or rule permits the OPM to provide group health insurance to government employees who do not participate in the FEHBP. Finally, the OPM Rule violates the Equal Protection Clause of the United States Constitution in that it treats Members of Congress and their staffs differently than other similarly-situated employees who obtain insurance coverage pursuant to the terms of the ACA. No other employees of large employers are able to purchase insurance through small business exchanges with tax free subsidies from their employers.
What Johnson doesn't say in the complaint is that those employees of large corporations get employer-subsidized insurance, like members and staffers used to get under the FEHBP.
The Wisconsin Institute for Law & Liberty brought the case. Paul Clement, a consultant on the suit, joined Senator Johnson at a news conference yesterday:
Sunday, January 5, 2014
Senator Ron Johnson (R-Wis) writes in the Wall Street Journal that he'll file suit today to stop the congressional "exemption" from Obamacare. Senator Johnson writes that the OPM rule allowing members of Congress and staffers to use the exchange and also get an employer subsidy violates the Affordable Care Act and exceeds executive authority.
The dispute over the congressional "exemption" goes way back. But it turns out, there's no such exemption at all. The ACA contained a provision that required members of Congress and their staffers to get health insurance on an exchange. But that was unusual, because members and staffers already had employer-subsidized coverage under the Federal Employee Health Benefit Plan. (Exchanges are for the uninsured or employees of small corporations, not for employees of large corporations who already have coverage. Congress, which previously provided subsidized health insurance to members and staffers, nevertheless inserted a provision in the ACA that required members and staffers to use an exchange.) As a result, members and staffers would have lost their subsidy. So OPM stepped in and ruled this fall that members and staffers would qualify for an employer subsidy on the exchange if they purchased insurance in a Small Business Health Options Program, or SHOP.
As PolitiFact, Factcheck.org, and WaPo's Fact Checker all explain, this treatment is different and unusual, but it's hardly an exemption. Instead, the employer subsidy simply attempts to put members and staffers back in the position they would have been in if they were treated as employees with employer-subdized health insurance in any large corporation. In other words, the ACA treated members and staffers differently (worse) than similarly situated employees in large corporations; OPM merely tried to return them to their previous situation--so that they would be treated like everybody else.
Still, there's the question whether OPM had authority to authorize subsidies for member and staffer insurance purchases on an exchange, or whether that required a congressional fix to the ACA. Senator Johnson says OPM exceeded its authority--that this was a job (were it to be done at all) only for Congress.