Friday, June 3, 2016
The D.C. Circuit ruled today in Friends of Animals v. Jewell that Congress did not violate separation of powers when it enacted legislation ordering the Fish and Wildlife Service to reinstate a categorical exemption for captive-bred animals under the Endangered Species Act.
The ruling is a blow to endangered-species advocates, because it permits the FWS to grant an exemption to the ESA's prohibition on taking or possessing an endangered species without going through the previous individualized-exemption application process. In other words, FWS can now grant a blanket exemption to all holders of captive-bred endangered species without publicizing individual applications and individual exemptions--and also without allowing interested parties to weigh in.
The case arose when the FWS issued the Captive-Bred Exemption to the ESA's general prohibition on taking or possessing an endangered species. The Exemption meant that all captive-bred herds of three antelope species got an automatic pass, without having to go through the individual-application process in Section 10(c) of the ESA.
But Friends sued, arguing that the Exemption violated Section 10(c) of the ESA. The district court agreed, citing the plain language of Section 10(c), which says, "[t]he Secretary shall publish notice in the Federal Register of each application for an exemption or permit which is made under this section." (Emphasis added.)
After the district court struck the Exemption, the FWS backed off and withdrew the Exemption. But then Congress passed "Section 127," which ordered the FWS to "reissue the final rule published on September 2005," that is, the Exemption.
Friends sued again, this time arguing that Section 127 violated separation of powers--in particular, the rules in Plaut v. Spendthrift Farm, Inc. and United States v. Klein. (These cases were on full view in the Court's recent ruling in Bank Markazi.) The lower court dismissed the case, and the D.C. Circuit today affirmed (although on slightly different grounds).
The court rejected Friends' argument that Section 127 violated Plaut, because Section 127 is prospective legislation (and not a retroactive revival of a dismissed case, in violation of Plaut):
Section 127 is not retroactive legislation because it does not establish what the law was at an earlier time. Likewise, Section 127 does not apply to a case already decided and does not overturn the court's determination in [the earlier case]--it simply alters the prospective effect of [the ESA's prohibition on taking or possessing an endangered species without an individual exemption] by exempting U.S. captive-bred herds of the three antelope species from the Act's . . . prohibitions going forward.
The court rejected Friends' argument that Section 27 violate Klein, because Section 127 simply "amends applicable law":
On the record before us, we have no trouble in concluding that Section 127 amended the applicable law and thus does not run afoul of Klein. Section 127 directed the Secretary of the Interior to reissue the Captive-Bred Exemption "without regard to any other provision of statute or regulation that applies to issuance of such rule." By issuing this legislative directive, Congress made it clear that, with respect to U.S. captive-bred herds of the three antelope species, individual permits are no longer required to engage in activities otherwise prohibited by [the ESA].
The court also held that Friends had informational standing, based on the language of the ESA, which says that "[i]nformation received by the Secretary as part of any application [for an exemption] shall be available to the public as a matter of public record at every stage of the proceeding." According to the court, this was enough for Friends, an endangered-species advocacy organization, to assert informational standing.
Monday, May 16, 2016
The Court said no. It held that "Article III standing requires a concrete injury even in the context of a statutory violation" (emphasis added), but then sent the case back for determination whether there was a concrete injury in this case.
The ruling makes clear that if Robins, the plaintiff, can show a concrete harm, he will have standing. But it makes equally clear that Congress cannot simply create standing by authorizing a new individual cause of action. A plaintiff still has to show a particularized and concrete injury.
The case involves the congressionally-created individual cause of action under the Fair Credit Reporting Act. Under the FCRA, Congress granted adversely affected individuals a right to sue reporting agencies for failure to "follow reasonable procedures to assure maximum possible accuracy of the information concerning the individual about whom the report relates." Robins sued Spokeo under the provision, arguing that Spokeo posted incorrect information about him on its website. The Ninth Circuit held that Robins had standing.
The Supreme Court today vacated that decision and remanded. Justice Alito wrote for the Court and held that standing requires both a "particularized" injury and a "concrete" injury. The Ninth Circuit analyzed whether Robins's injury was particularized, but not whether it was concrete. Justice Alito wrote that a procedural harm--like the one here, because the FCRA establishes a procedure for reporting agencies to follow--could create a concrete injury, but the Ninth Circuit didn't analyze this in Robins's case. Therefore, the Court remanded to the Ninth Circuit to determine whether Robins sufficiently alleged a concrete harm.
At the same time, Justice Alito made clear that Congress could "elevat[e] to the status of legally cognizable injuries concrete, de facto injuries that were previously inadequate in law." But if so, a plaintiff still has to sufficiently allege both particularized and concrete injuries to meet the Article III standing requirement. This means that a plaintiff alleging a procedural injury alone wouldn't have standing, but a plaintiff alleging a procedural injury with a concrete and particularized harm would.
Congress' role in identifying and elevating intangible harms does not mean that a plaintiff automatically satisfies the injury-in-fact requirement whenever a statute grants a person a statutory right and purports to authorize that person to vindicate that right. Article III standing requires a concrete injury even in the context of a statutory violation.
Justice Thomas concurred and reached the same result by drawing on the difference between suits vindicating private rights and suits vindicating public rights. (Justice Thomas's "public rights" are probably broader than procedural claims like Robins's, and so this approach is probably more restrictive on standing.)
Justice Ginsburg dissented, joined by Justice Sotomayor. She argued that Robins sufficiently alleged a concrete harm, and that remand wasn't necessary.
Thursday, May 12, 2016
Judge Rosemary Collyer (D.D.C.) ruled today that the Obama Administration spent money on reimbursements to insurers on the ACA exchanges without a valid congressional appropriation. Judge Collyer enjoined any further reimbursements to insurers until a valid appropriation is in place, but she stayed that injunction pending appeal.
Because of the stay, the ruling will have no immediate effect on government subsidies to insurers (and thus no immediate effect on the overall ACA, reductions in cost-sharing for certain purchasers on exchanges, or any other feature of the Act). But if Judge Collyer's ruling is upheld on appeal, and if Congress fails to specifically appropriate funds for Section 1402 reimbursements, or if the stay is lifted, this could deal a significant blow to the ACA. That's because the Act would require exchange insurers to provide a cost-sharing break to certain purchasers on the exchange, but the government wouldn't be able to reimburse the insurers for those costs, as the Act assumes. This could drive up costs, or drive insurers off the exchanges, or both--in any event, undermining the goals of the ACA.
The case involves Section 1402 of the ACA, which provides reimbursements to insurers on the ACA exchanges. Those reimbursements are designed to off-set reductions in deductibles, co-pays, and other cost-sharing expenses that the ACA requires exchange insurers to provide to lower-income insurance purchasers on an exchange. In other words, the ACA requires exchange insurers to cut cost-sharing costs for certain purchasers; and Section 1402 authorizes the government to reimburse insurers for those cuts.
But Congress didn't specifically appropriate funding for Section 1402. The administration nevertheless provided reimbursements on the theories that 1402 reimbursements are part of the integrated package that makes the ACA work, and that 1402 appropriations are covered in appropriations for other provisions in the Act.
Judge Collyer rejected these arguments. In particular, she wrote that Section 1402 is separate and distinct from other portions of the Act and requires its own, specific appropriation--not an inferred appropriation, based on a holistic reading of the Act, or based on appropriations for other features of the Act. (Behind these legal arguments is the idea that everyone understood that spending for Section 1402 reimbursements would be covered by appropriations for other portions of the Act. But "everyone understood" doesn't get very far in court.)
Moreover, she said that the government's attempts to leverage King v. Burwell to argue that Section 1402 funding is a necessary part of an integrated ACA fall flat:
This case is fundamentally different from King v. Burwell. There, the phrase "established by the State" . . . became "not so clear" when it was "read in context." . . . Simply put, the statute could not function if interpreted literally; it had to be saved from itself. . . .
The problem the Secretaries have tried to solve here is very different: it is a failure to appropriate, not a failure in drafting. Congress's subsequent inaction, not the text of the ACA, is what prompts the Secretaries to force the elephant into the mousehole.
Judge Collyer's ruling is obvious not the end of this matter: the government will surely appeal. In the meantime, her stay (alone) should allow government continued spending on insurer reimbursements, and thus (alone) won't have any significant impact on the ACA.
Judge Collyer earlier ruled that the House of Representatives had standing to bring this case, but that it lacked standing to challenge another administration act, delay of time when employers had to provide minimum health insurance to employees.
Wednesday, April 20, 2016
The Supreme Court ruled today in Bank Markazi v. Peterson that Congress did not tread on the courts' territory in violation of the separation of powers by enacting a statute that ensured that the plaintiffs in an enforcement action would get the assets that they sought (and therefore win).
The ruling backs off the rule in United States v. Klein--that Congress can't legislate a rule of decision in a case--and thus gives somewhat wider berth to Congress (relative to Klein) to enact laws that impact currently pending cases. At the same time, however, the ruling reiterates familiar limits on Congress's authority over the judiciary.
This is the case in which over 1,000 victims of Iranian-sponsored terrorism and their families filed in the Southern District of New York to enforce their monetary judgments against Iran--through assets owned by Bank Markazi, the Central Bank of Iran, held in a New York bank account--for sponsoring terrorism.
While this claim was pending, Congress passed a law saying that, if a court makes specific findings, "a financial asset . . . shall be subject to execution . . . in order to satisfy any judgment to the extent of any compensatory damages awarded against Iran for damages for personal injury or death caused by" certain acts of terrorism. The law goes on to define available assets as "the financial assets that are identified in and the subject of proceedings in the United States District Court for the Southern District of New York in Peterson et al. v. Islamic Republic of Iran et al., Case No. 10 Civ. 4518 (BSJ) (GWG), that were restrained by restraining notices and levies secured by the plaintiffs in those proceedings."
In other words, the newly enacted law, 22 U.S.C. Sec. 8772, ensured that the plaintiffs in this case would get these assets, notwithstanding the Bank's defenses.
The Bank claimed that the law violated the separation of powers--in particular, that Congress overstepped by directing the outcome of a case, in violation of United States v. Klein.
But the Supreme Court disagreed. Justice Ginsburg wrote the opinion for all but Chief Justice Roberts and Justice Sotomayor (and Justice Thomas, for a part of the opinion). She wrote that Congress may amend the law and apply the amendment to pending cases, even when the amendment is outcome determinative. She then said that's exactly what Congress did here: it wrote a law that covers all the various post-judgment execution claims that were consolidated in this case. She said it did not create a "one-case-only regime."
Justice Ginsburg also wrote that the law related to foreign policy--an area where the courts traditionally defer to the President and Congress. "The Executive has historically made case-specific sovereign-immunity determinations to which courts have deferred. Any exercise by Congress and the President of control over claims against foreign governments, as well as foreign-government-owned property in the United States, is hardly a novelty."
Along the way, Justice Ginsburg backed off on Klein. She wrote that Klein has been called "a deeply puzzling decision," and that "[m]ore recent decisions, however, have made it clear that Klein does not inhibit Congress from "amend[ing] applicable law." At the same time, she reiterated familiar limits: "Necessarily, [the courts' authority] blocks Congress from 'requir[ing] federal courts to exercise the judicial power in a manner that Article III forbids," "Congress, no doubt, 'may not usurp a court's power to interpret and apply the law to the [circumstances] before it," and "our decisions place off limits to Congress 'vest[ing] review of the decisions of Article III courts in officials of the Executive Branch.'" "Congress, we have also held, may not 'retroactively comman[d] the federal courts to reopen final judgments." Plaut v. Spendthrift Farm, Inc.
Chief Justice Roberts, joined by Justice Sotomayor, dissented. He argued, in short, "[n]o less than if it had passed a law saying 'respondents win,' Congress has decided this case by enacting a bespoke statute tailored to this case that resolves the parties' specific legal disputes to guarantee respondents victory"--and therefore violates the separation of powers.
Tuesday, April 5, 2016
Check out Prof. Tim O'Neill's (John Marshall) excellent piece in the Cal. Law Review on Chief Justice Roberts's approach to deference in the Obamacare case, NFIB v. Sebelius: Harlan on My Mind: Chief Justice Roberts and the Affordable Care Act.
O'Neill notes that "Chief Justice Roberts has never been shy about finding acts of Congress to be unconstitutional," but that he nevertheless extolled the virtues of deference to the legislature and ultimately upheld the individual mandate in NFIB. O'Neill asks: Where did this "newly minted Thayerian justice" come from?
This essay will attempt to answer that question. It will begin by further examining Posner's article and the reasons he provided for the death of Thayerian review. It will then turn to an examination of one justice in particular whom Chief Justice Roberts has cited as his model: the younger Justice John Marshall Harlan, perhaps the last justice on the Court who exhibited Thayer-like restraint. It will conclude by contending that when faced with the most important case of his judicial career, Roberts took a Thayer-like approach that might have been similar to the approach his judicial model, Justice Harlan, would have taken. Thayer-like restraint may be dead, but it appears to have come back to life for at least one decision on June 28, 2012.
Wednesday, March 16, 2016
Merrick Garland, the chief judge on the U.S. Court of Appeals for the D.C. Circuit is Obama's nominee.
The New Yorker analyzes Garland as a "sensible choice."
NPR says "Reputation Of Collegiality, Record Of Republican Support."
First Amendment ConLawProfs might note that Garland was in the majority in American Meat Institute v. U.S. Department of Agriculture. Also of note is that he was part of the panel that decided that there was no clearly established right not to be tasered during a protest under the First, as well as Fourth, Amendment in Lash v. Lemke.
Progressive groups will fall in line, and deeply respect Garland and the President’s choice, but their actual disappointment will be deep.— SCOTUSblog (@SCOTUSblog) March 16, 2016
Wednesday, March 9, 2016
In a 10 page opinion, Senior United States District Judge for the District of Puerto Rico Juan Perez-Gimenez denied the joint motion for summary judgment in Conde-Vidal v. Garcia-Padilla regarding a challenge to Puerto Rico's same-sex marriage ban.
Recall that in October 2104, Judge Juan Perez-Gimenez had largely relied upon Baker v. Nelson, the United States Supreme Court's 1972 dismissal of a same-sex marriage ban challenge "for want of substantial federal question" to find that there was no constitutional right to same-sex marriage. In the appeal to the First Circuit, the Solicitor General of Puerto Rico decided that it would not defend the same-sex marriage ban. And then the United States Supreme Court held in Obergefell v. Hodges that the Fourteenth Amendment requires states to issue marriage licenses to same-sex couples.
The First Circuit thus remanded Conde-Vidal v. Garcia-Padilla to Judge Juan Perez-Gimenez "for further consideration in light of Obergefell v. Hodges" and specifically stated "We agree with the parties' joint position that the ban is unconstitutional." The parties submitted a Joint Motion for Entry of Judgment with a proposed order.
In rejecting the parties' joint motion, Judge Juan Perez-Gimenez contended that because Puerto Rico was a "stranger to the proceedings" in Obergefell which involved same-sex marriage bans in the Sixth Circuit (Michigan, Kentucky, Ohio, and Tennessee), it was not bound by the decision. This reasoning is similar to some of the arguments most recently raised by some Justices on the Supreme Court of Alabama.
Additionally - - - and perhaps with more legal grounding - - - he concluded that Obergefell does not apply to Puerto Rico because it is not a "state":
the fundamental right to marry, as recognized by the Supreme Court in Obergefell, has not been incorporated to the juridical reality of Puerto Rico.
The judge based this "juridical reality" on his conclusion that the doctrine of selective incorporation only applies to states and not Puerto Rico, or perhaps more correctly, that the Fourteenth Amendment itself is not applicable to Puerto Rico "insofar as it is not a federated state."
Additionally, Judge Perez-Gimenez asks "does the Constitution follow the flag?" and concludes that under The Insular Cases (1901), territorial incorporation of specific rights is questionable:
Notwithstanding the intense political, judicial and academic debate the island’s territorial status has generated over the years, the fact is that, to date, Puerto Rico remains an unincorporated territory subject to the plenary powers of Congress over the island under the Territorial Clause.More importantly, jurisprudence, tradition and logic teach us that Puerto Rico is not treated as the functional equivalent of a State for purposes of the Fourteenth Amendment. As explained by the Supreme Court, “noting the inherent practical difficulties of enforcing all constitutional provisions ‘always and everywhere,’ the Court devised in the Insular Cases a doctrine that allowed it to use its power sparingly and where it would be most needed.” Boumedine v. Bush.
Thus, this court believes that the right to same-sex marriage in Puerto Rico requires: further judicial expression by the U.S. Supreme Court; or the Supreme Court of Puerto Rico, see e.g. Pueblo v. Duarte, 109 D.P.R. 59 (1980)(following Roe v. Wade, 410 U.S. 113 (1973) and declaring a woman’s right to have an abortion as part of the fundamental right to privacy guaranteed under the Fourteenth Amendment); incorporation through legislation enacted by Congress, in the exercise of the powers conferred by the Territorial Clause, see Const. amend. Art. IV, § 3; or by virtue of any act or statute adopted by the Puerto Rico Legislature that amends or repeals Article 68 [prohibiting same-sex marriage].
In staking out a position regarding Puerto Rico's status, Judge Perez-Gimenez's opinion reverberates with the two cases regarding Puerto Rico presently before the United States Supreme Court even as it looks back to his earlier opinion hostile to the right of same-sex marriage.
[updated: March 11, 2016: Further discussion of these issues available here].
March 9, 2016 in Congressional Authority, Courts and Judging, Current Affairs, Due Process (Substantive), Federalism, Fourteenth Amendment, Opinion Analysis, Sexual Orientation, Sexuality, Supremacy Clause, Supreme Court (US) | Permalink | Comments (0)
Monday, February 29, 2016
Federal Magistrate Finds All Writs Act Not Sufficient to Compel Apple to "Unlock" IPhone in Brooklyn Case
Bearing remarkable similarity to the ongoing controversy in California often styled as FBI v. Apple, a federal magistrate in the Eastern District of New York today sided with Apple, finding that the All Writs Act does not grant judicial authority to compel Apple to assist the government in "unlocking" an iPhone by bypassing the passcode security on a iPhone.
In his 50 page Memorandum and Order in In Re Order Requiring Apple, Inc. to Assist in the Execution of a Search Warrant Issued By This Court, Magistrate James Orenstein concluded that while the All Writs Act as applied here would be in "aid of jurisdiction" and "necessary and proper," it would not be "agreeable to the usages and principles of law," because Congress has not given such specific authority to the government. Similar to Apple's argument in the California case, Magistrate Orenstein notes the constitutional argument:
The government's interpretation of the breadth of authority the AWA confers on courts of limited jurisdiction thus raises serious doubts about how such a statute could withstand constitutional scrutiny under the separation-of-powers doctrine.
There is no mention of the First, Fifth, or Fourth Amendments.
Magistrate Orenstein engaged in an application of the United States v. New York Telephone Co. (1977) factors, finding that even if the court had power, it should not exercise it. The magistrate found that New York Telephone was easily distinguished. On the unreasonable burden factor, the magistrate stated:
The government essentially argues that having reaped the benefits of being an American company, it cannot claim to be burdened by being seen to assist the government. See Govt. II at 19 (noting the "significant legal, infrastructural, and political benefits" Apple derives from being an American company, as well as its "recourse to the American courts" and to the protection of "American law enforcement ... when it believes that it has been the victim of a crime"); id at 19-20 ("This Court should not entertain an argument that fulfilling basic civic responsibilities of any American citizen or company ... would 'tarnish' that person's or company's reputation."). Such argument reflects poorly on a government that exists in part to safeguard the freedom of its citizens – acting as individuals or through the organizations they create – to make autonomous choices about how best to balance societal and private interests in going about their lives and their businesses. The same argument could be used to condemn with equal force any citizen's chosen form of dissent.
At the end of his opinion, Judge Orenstein reflected on the divisive issues at stake and concluded that these were ones for Congress.
But Congress will certainly not be acting in time to resolve the pending controversies. Unlike the California case, this warrant and iphone resulted from a drug prosecution and had proceeded in a somewhat haphazard manner. Pursuant to the Magistrate's request about other pending cases,
Apple identified nine requests filed in federal courts across the country from October 8, 2015 (the date of the instant Application) through February 9, 2016. In each, Apple has been ordered under the authority of the AWA (or has been told that an order has been requested or entered) to help the government bypass the passcode security of a total of twelve devices; in each such case in which Apple has actually received a court order, Apple has objected. None of those cases has yet been finally resolved, and Apple reports that it has not to date provided the requested assistance in any of them.
So it seems that the California "terrorism" case is not unique. Judge Orenstein's opinion is well-reasoned and well-structured and could easily be echoed by the federal courts in California - - - and elsewhere.
Thursday, February 25, 2016
In its Motion to Vacate filed today, Apple, Inc. argued that the Magistrate's Order Compelling Apple, Inc. to Assist Agents in Search of an Apple IPhone was not supported by the All Writs Act and is unconstitutional.
The constitutional arguments are basically three:
First, embedded in the argument that the All Writs Act does not grant judicial authority to compel Apple to assist the government is the contention that such would violate the separation of powers. Crucial to this premise is the Communications Assistance for Law Enforcement Act (CALEA), which Apple contends does not apply to Apple and which has not been amended to do so or amended to provide that companies must provide decryption keys. Absent such an amendment, which was considered as CALEA II but not pursued, the courts would be encroaching on the legislative role.
For the courts to use the All Writs Act to expand sub rosa the obligations imposed by CALEA as proposed by the government here would not just exceed the scope of the statute, but it would also violate the separation-of-powers doctrine. Just as the “Congress may not exercise the judicial power to revise final judgments,” Clinton v. Jones (1997), courts may not exercise the legislative power by repurposing statutes to meet the evolving needs of society, see Clark v. Martinez (2005)(court should “avoid inventing a statute rather than interpreting one”) see also Alzheimer’s Inst. of Am. Inc. v. Elan Corp. (N.D. Cal. 2013) (Congress alone has authority “to update” a “technologically antiquated” statute “to address the new and rapidly evolving era of computer and cloud-stored, processed and produced data”). Nor does Congress lose “its exclusive constitutional authority to make laws necessary and proper to carry out the powers vested by the Constitution” in times of crisis (whether real or imagined). Youngstown Sheet & Tube Co. v. Sawyer (1952).
[citations abbreviated]. Apple adds that "whether companies like Apple should be compelled to create a back door to their own operating systems to assist law enforcement is a political question, not a legal one," citing Baker v. Carr (1962).
Second, Apple makes a cursory First Amendment argument that commanding Apple to "write software that will neutralize the safety features that Apple has built into the iPhone" is compelled speech based on content and subject to exacting scrutiny. Apple also contends that this compelled speech would be viewpoint discrimination:
When Apple designed iOS 8, it wrote code that announced the value it placed on data security and the privacy of citizens by omitting a back door that bad actors might exploit. The government disagrees with this position and asks this Court to compel Apple to write new software that advances its contrary views.
Third, and even more cursorily, Apple makes a substantive due process argument under the Fifth Amendment. Here is the argument in full:
In addition to violating the First Amendment, the government’s requested order, by conscripting a private party with an extraordinarily attenuated connection to the crime to do the government’s bidding in a way that is statutorily unauthorized, highly burdensome, and contrary to the party’s core principles, violates Apple’s substantive due process right to be free from “‘arbitrary deprivation of [its] liberty by government.’” Costanich v. Dep’t of Soc. & Health Servs., 627 F.3d 1101, 1110 (9th Cir. 2010) (citation omitted); see also, e.g., Cnty. of Sacramento v. Lewis, 523 U.S. 833, 845-46 (1998) (“We have emphasized time and again that ‘[t]he touchstone of due process is protection of the individual against arbitrary action of government,’ . . . [including] the exercise of power without any reasonable justification in the service of a legitimate governmental objective.” (citations omitted)); cf. id. at 850 (“Rules of due process are not . . . subject to mechanical application in unfamiliar territory.”).
Interestingly, there is no Fourth Amendment argument.
The main thrust of Apple's argument is the statutory one under the All Writs Act and the application of the United States v. New York Telephone Co. (1977) factors that the government (and Magistrate) had relied upon. Apple disputes the burden placed on Apple that the Order would place. Somewhat relevant to this, Apple contends that "Had the FBI consulted Apple first" - - - before changing the iCloud password associated with one of the relevant accounts - - - "this litigation may not have been necessary."
February 25, 2016 in Cases and Case Materials, Congressional Authority, Courts and Judging, Criminal Procedure, Current Affairs, Due Process (Substantive), First Amendment, News | Permalink | Comments (0)
Tuesday, January 19, 2016
The Supreme Court today agreed to hear Texas v. United States, the case testing President Obama's deferred action program for parents of Americans and lawful permanent residents, or DAPA.
We posted on the Fifth Circuit's ruling here, including a summary of the arguments and analysis.
The case arose when Texas and twenty-five other states sued the federal government, arguing that DHS violated federal law (the Immigration and Naturalization Act) and the Take Care Clause of the Constitution, and failed to use APA notice-and-comment rulemaking, in adopting DAPA. A district court issued a nationwide injunction, and the Fifth Circuit affirmed, concluding that the states had a substantial likelihood of success on the merits of their INA and APA claims (but not ruling on the Take Care Clause claim). The courts also ruled that the plaintiffs had standing.
The government sought review at the Supreme Court, and today the Court agreed to hear the case. The issues include the INA and APA claims, and standing, and the Take Care Clause claim. This last one is a bit of a surprise, given that the Fifth Circuit did not rule on it. (The Court in its order today asked the parties to argue the issue.)
The Court could resolve the case on standing alone, by concluding that the states lack standing. After all, Texas's standing theory is hardly rock solid: it's based on Texas's costs in issuing drivers licenses to DAPA beneficiaries. But that's a voluntary cost--Texas doesn't have to issue the licenses in the first place. Moreover, plaintiffs don't usually have standing to challenge an executive lack of enforcement. A ruling against the plaintiffs on standing seems highly unlikely, however, especially now that the Court has asked for briefing on the Take Care question. It seems that the Court--or at least four Justices--want to get to the merits.
The case could affect the fates of about four million people and their children. It'll also be a significant addition to the Court's jurisprudence on standing and the Take Care Clause, and executive authority under the INA and APA notice-and-comment rulemaking.
Finally, it could have significant play in the presidential election: the Court will likely hear arguments in April and issue an opinion in June.
Monday, November 2, 2015
The Supreme Court heard oral arguments today in Spokeo v. Robins, the case testing whether Congress can confer standing on a plaintiff by statute, even when the plaintiff lacks a sufficient and independent harm for Article III standing purposes.
The case is important for what it will say about access to the courts, and, in particular, class actions. The justices at oral arguments seemed sharply divided along conventional ideological lines, with progressives favoring access and conservatives, including Justice Kennedy, going the other way. If so, the case will take its place among the line of cases coming out of the Roberts Court that limit access to the judiciary and favor (corporate and government) defendants.
(Check out the outstanding Vanderbilt roundtable on the case, with six different takes, available here.)
The case arose when Spokeo, the owner of a web-site that provides searchable reports containing personal information about individuals, reported false information about Thomas Robins. For example, Spokeo reported that Robins had a graduate degree (he doesn't), that he was employed in a professional or technical field, with "very strong" "economic health" and wealth in the "Top 10% (he's unemployed), and that he's in his 50s, married, with children (he's not in his 50s, not married, and no children).
Robins filed suit, claiming that Spokeo's representations violated the federal Fair Credit Reporting Act. He sought damages under the Act for a willful violation. Robins claimed that Spokeo's false report made it harder for him to find a job.
Justices Kagan and Scalia marked out the competing positions early in Spokeo's argument, and at times bypassed Spokeo's attorney (Andrew Pincus) entirely and simply argued with each other. At one point, Justice Scalia even intervened to answer a question for Pincus, and then told Pincus that it was the right answer. In short, Justice Kagan argued that Congress identified a concrete harm in the Act and provided a remedy for it; Justice Scalia argued that any harm was merely "procedural," because any harm was only Spokeo's violation of the Act's procedures (with no additional concrete harm). Here's a little of the exchange:
Justice Kagan: But did that procedural requirement--this is--this is exactly what Lujan says, "It's a procedural requirement the disregard of which could impair a concrete interest of the plaintiff."
And we distinguished that from procedural requirements in vacuo.
. . .
Justice Scalia: Excuse me. That--that would lead to the conclusion that anybody can sue . . . not just somebody who--whose information was wrong.
Pincus seemed to make an important concession in response to a question by Justice Kennedy, whether "Congress could have drafted a statute that would allow [Robins] to bring suit?" Pincus said yes, and proceeded to describe it--basically a statute that required a plaintiff to show a concrete harm that would be sufficient for Article III. If Justice Kennedy is in play, Pincus's softer position may assuage any concerns over an extreme position that Congress can never confer standing. The softer position also saves other statutes that have similar Congress-confered-standing provisions. (Justice Kennedy picked up this theme with Robins's attorney (William Consovoy) and noted that Consovoy's position of a Congress-created-harm (alone) seemed circular--but Consovoy didn't seem to give a satisfying answer.) At one point Pincus made another important concession: some plaintiffs might have standing under the FCRA, so long as they show an independent and sufficient harm.
On the other side, Chief Justice Roberts pressed Consovoy early on the limits of his argument--a point we're likely to see in the opinion:
Chief Justice Roberts: What about a law that says you get a--a--$10,000 statutory damages if a company publishes inaccurate information about you? . . . The company publishes your phone number, but it's wrong. That is inaccurate information about you, but you have no injury whatever. Can that person bring an action for that statutory damage?
Consovoy didn't have a response, or, rather, his response only opened new cans of worms. (Justice Breyer intervened and offered an interpretation of the statutory language that gives a cause of action to "any consumer who has obtained--who suffers from false information.") Chief Justice Roberts and Consovoy had a similar exchange later in the argument, too. Consovoy maintained that the FCRA was different than the Chief's hypotheticals, because the FCRA authorizes damages only for someone who was injured. He didn't seem to persuade the Chief on this point, though, despite Justice Breyer's help.
Justice Alito pointed to the record and argued that it didn't support a concrete harm. Indeed, he pointed out that nobody in the record (other than Robins himself) searched for him on Spokeo--a "quintessential speculative harm"--probably another point we'll see in the final opinion.
Chief Justice Roberts asked a different question--and a far more loaded one (politically, and constitutionally)--to the government, amicus for Robins:
Chief Justice Roberts: [L]et's kind of say your--your--Congress thinks that the president is not doing enough to stop illegal immigration, so it passes a law that says, anyone in a border State--so it's particularized--who is unemployed may bring an action against an illegal immigrant who has a job. And they get damages, maybe they get an injunction.
. . .
And I would have thought that the--the president would be concerned about Congress being able to create its own enforcement mechanism. I thought that you would be concerned that that would interfere with the executive prerogative.
The government tried to distinguish the hypo, but, again, counsel probably didn't persuade the conservatives.
November 2, 2015 in Cases and Case Materials, Congressional Authority, Courts and Judging, Executive Authority, Jurisdiction of Federal Courts, News, Opinion Analysis, Separation of Powers, Standing | Permalink | Comments (0)
Wednesday, October 28, 2015
The Pacific Legal Foundation filed a cert. petition yesterday, asking the Supreme Court to review a D.C. Circuit ruling that the individual mandate in Obamacare didn't violate the Origination Clause. We posted on the D.C. Circuit ruling here.
The Origination Clause, Article I, Section 7, Cl. 1, says that "All Bills for raising Revenue shall originate in the House of Representatives; but the Senate may propose or concur with Amendments as on other Bills." Because the Court upheld the individual mandate under Congress's taxing power, the logic goes, the ACA was a "bill for raising revenue." And while a bill that ultimately became Obamacare originated in the House, the Senate gutted that bill and replaced it with the ACA. The Pacific Legal Foundation argues that this violated the Origination Clause.
The D.C. Circuit flatly rejected the argument. It said, in short, that the individual mandate wasn't a "bill for raising revenue" for Origination Clause purposes, even if Congress enacted it under its taxing authority.
Here are the QPs in the cert. petition:
1. Is the tax on going without health insurance a "Bill for raising Revenue" to which the Origination Clause applies?
2. Was the Senate's gut-and-replace procedure a constitutionally valid "amend[ment]" pursuant to the Origination Clause?
Tuesday, October 6, 2015
Judge Tanya Chutkan (D.D.C.) last week denied the District of Columbia's motion to dismiss key parts of a claim by D.C. charter schools that the D.C. government under-funded them in comparison to District public schools. The lengthy ruling is laden with analysis on the constitutional relationship between Congress and the District, much of it indeterminate, reminding us just how complicated this relationship can be.
The plaintiff charter schools brought the case, arguing that the D.C. government funneled extra money to D.C. public schools, but not charter schools, in violation of the District Clause and Home Rule Act, the Supremacy Clause, and the School Reform Act. In particular, the plaintiffs argued that the D.C. government violated the Home Rule Act by altering a a congressional act (the School Reform Act) without specific congressional authorization. The District countered that it has authority under the Home Rule Act to amend or repeal the School Reform Act, because the School Reform Act applies only to the District.
Judge Chutkan ruled that neither the case law nor the Home Rule Act tells when Congress acts in tandem with the D.C. City Council (so that the Council could alter a congressional act), or when Congress has the final word--at least in the abstract. So she turned to the text and history of the School Reform Act to answer the question here. But Judge Chutkan said that the School Reform Act was similarly indeterminate. She wrote that the Act's apparent mandatory language on equal school funding for charters and public schools wasn't dispositive, because "if the District can (and has) repealed Acts of Congress that used the term 'shall,' then that term alone cannot necessarily delineate Congress' intent with respect to the Council's authority.'" Moreover, Judge Chutkan said that the legislative history of the School Reform Act didn't answer the question. The upshot: "As it stands, the uniform funding formula is on the books, and it is not clear whether it has been violated, whether it has been amended or repealed by Council enactments (through Congressional acquiescence or otherwise), or whether the challenged actions do not implicate or conflict with the funding formula at all." She thus denied the District's motion to dismiss the District Clause, Home Rule Act, and School Reform Act claims. The ruling means that these claims can move forward.
In contrast, Judge Chutkan did dismiss the plaintiffs' Supremacy Clause claim. That's because the Supremacy Clause doesn't apply to congressional acts over D.C.; the District Clause does. The analysis is the same, Judge Chutkan wrote, but the Supremacy Clause doesn't do the work.
Tuesday, September 29, 2015
The D.C. Circuit ruled in Jarkesy v. SEC that the target of an SEC administrative proceeding has to run the administrative course before he can challenge the proceeding in federal court for violating his constitutional rights.
The ruling aligns with a recent Seventh Circuit decision, but is at odds with some of the district courts that have ruled on the question.
The SEC brought an administrative proceeding against George Jarkesy, charging him with securities fraud. Before the SEC ruled on the case, but after Jarkesy's co-respondents settled (in a way that didn't look good for Jarkesy), Jarkesy sued in federal court to stop the proceeding, arguing that it violated various constitutional rights.
The district court dismissed Jarkesy's case, and the D.C. Circuit affirmed.
The court applied the two-part framework in Thunder Basin Coal Co. v. Reich and held (1) that congressional intent to require a litigant to proceed exclusively through the SEC's statutory scheme of administrative and judicial review was "fairly discernible in the statutory scheme" itself and (2) that Jarkesy's claims were "of the type Congress intended to be reviewed within [the SEC's] statutory structure."
The court rejected an argument that Jarkesy's case was like the plaintiffs' challenge in Free Enterprise Fund v. PCAOB. In that case, the Supreme Court sustained district-court jurisdiction over the plaintiffs' facial constitutional challenge to Sarbanes-Oxley. The court also rejected an approach that would distinguish between different types of constitutional challenges (allowing some on collateral attack, but not allowing others). The court explained:
We do not read the Free Enterprise Court's characterization of the plaintiffs' claims in that case, however, to define a new category of collateral claims that fall outside an otherwise exclusive administrative scheme. In its subsequent decision in Elgin [v. Department of the Treasury], the Court considered and rejected the idea that one could divine an exception to an otherwise exclusive administrative scheme based on the distinction between various types of constitutional challenges. "[A] jurisdictional rule based on the nature of an employee's constitutional claim would deprive the aggrieved employee, the MSPB, and the district court of clear guidance about the proper forum for the employee's claims at the outset of the case," the Court wrote, dismissing the plaintiffs' proposed line between constitutional challenges to statutes and other types of constitutional arguments to be "hazy at best and incoherent at worst." The Elgin Court also rejected the dissent's proffered rule making an exception to the CSRA scheme specifically for facial attacks on statutes. The Court explained that "the distinction between facial and as-applied challenges is not so well defined that it has some automatic effect or that it must always control the pleadings and disposition in every case involving a constitutional challenge."
Monday, September 28, 2015
The D.C. Circuit announced that it would rehear en banc a panel's earlier judgment vacating the military commission conviction of Ali Hamza Ahmad Suliman al Bahlul, an alien enemy combatant who one time bragged about his role in the 9/11 attacked.
A panel this past June vacated al Bahlul's conviction for inchoate conspiracy. The panel said that the conviction violated Article III because it was based on "the purely domestic crime" of inchoate conspiracy, which is not an offense under the international law of war.
The panel's summer ruling was a victory for al Bahlul and a blow to the government in conducting military commission trials. But the court's latest ruling gives it a second bite at this apple. The ruling vacates the panel's summer judgment and sets oral argument before the entire court for December 1, 2015.
Wednesday, September 9, 2015
Judge Rosemary Collyer (D.D.C.) ruled today that the U.S. House of Representatives has standing to pursue its claim that the administration spent money on a portion of the Affordable Care Act without a valid congressional appropriation. But at the same time, Judge Collyer ruled that the House lacked standing to sue for an administration decision to delay the time when employers have to provide minimum health insurance to their employees.
The split ruling means that the House's case against the administration for spending unappropriated funds can go forward, while the case for extending the time for the employer mandate cannot.
But Judge Collyer's ruling is certainly not the last word on this case. The government will undoubtedly appeal.
And just to be clear: this is not a ruling on the merits. It only says that a part of the case can go forward.
The case arose when the House authorized the Speaker to file suit in federal court against HHS Secretary Burwell and Treasury Secretary Lew for spending money on an ACA program without an appropriation and for unilaterally extending the statutory time for employers to comply with the employer mandate.
As to the spending claim, the House said that a provision of the ACA, Section 1402, which authorizes federal reimbursements to insurance companies for reducing the cost of insurance to certain eligible beneficiaries (as required by the ACA), never received a valid appropriation. That is, Congress never funded the provision. That's a problem, the House said, because Article I, Section 9, Clause 7 of the Constitution says that "No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law . . . ." In short, the administration's funding of Section 1402 violated the Constitution.
As to the employer mandate claim, the House said that the administration pushed back the employer mandate beyond December 31, 2013, the date set in the ACA, without congressional authorization. (The House couched this in constitutional terms, but, as Judge Collyer wrote, it's really essentially a statutory claim.)
The Secretaries filed a motion to dismiss for lack of standing.
Judge Collyer denied the motion as to the appropriations theory, but granted it as to the employer mandate claim. According to Judge Collyer, the House could show an institutional harm from the administration's use of non-appropriated funds (because the Constitution itself specifies a role in appropriations for the Congress, which the House said that the administration ignored here, and because the claim isn't about the administration's execution of law). But at the same time she wrote that the House couldn't show a particular institutional harm for the administration's push-back for the employer mandate (because this claim was all about the administration's execution of the law--a role reserved under the Constitution to the executive). She explained:
Distilled to their essences, the Non-Appropriation Theory alleges that the Executive was unfaithful to the Constitution, while the Employer-Mandate Theory alleges that the Executive was unfaithful to a statute, the ACA. That is a critical distinction, inasmuch as the Court finds that the House has standing to assert the first but not the second.
As to the employer mandate claim, she said,
The [House's] argument proves too much. If it were accepted, every instance of an extra-statutory action by an Executive officer might constitute a cognizable constitutional violation, redressable by Congress through a lawsuit. Such a conclusion would contradict decades of administrative law and precedent, in which courts have guarded against "the specter of 'general legislative standing' based upon claims that the Executive Branch is misinterpreting a statute or the Constitution."
We'll watch this case on appeal.
September 9, 2015 in Cases and Case Materials, Congressional Authority, Courts and Judging, Executive Authority, Jurisdiction of Federal Courts, News, Opinion Analysis, Separation of Powers, Standing | Permalink | Comments (0)
Wednesday, September 2, 2015
The D.C. Circuit today denied attorneys' fees to Shelby County growing out of its successful challenge to the coverage formula for preclearance in the Voting Rights Act. But more importantly: A majority on the panel rejected Shelby County's states' rights interpretation of the VRA.
The case arose out of Shelby County's motion for attorneys' fees after the Supreme Court struck Section 4 of the VRA, the coverage formula for preclearance, in Shelby County v. Holder. The VRA fee-shifting provision says,
In any action or proceeding to enforce the voting guarantees of the [F]ourteenth or [F]ifteenth [A]mendment, the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable [attorneys'] fee, reasonable expert fees, and other reasonable litigation expenses as part of the costs.
But to win attorneys' fees, Shelby County had to show (1) that it was eligible for fees under the provision and (2) that it was entitled to them under Newman v. Piggie Park.
All three on the panel agreed that Shelby County wasn't entitled under Piggie Park. That's because "Shelby County's lawsuit did not facilitate enforcement of the VRA; it made enforcing the VRA's preclearance regime impossible." "Shelby County's argument boils down to the proposition that Congress introduced the fee-shifting provision into the VRA in 1975 with the express goal of inducing a private party to bring a lawsuit to neuter the Act's central tool. But that makes no sense." (Emphasis in original.) That was enough to deny attorneys' fees.
But that's also where the case gets interesting. On the eligibility prong, Shelby County argued that it was eligible for fees under the statute, because it prevailed in an action to enforce the voting guarantees of the Fourteenth and Fifteenth Amendments, and that these guarantees include "the structural rights of the states." That last part is a bold departure from the plain language of the amendments and any cases interpreting them; it assumes that the amendments contain some (unenumerated) version of states' rights, which, in turn, could limit the amendments' protection of individual voting rights.
The court left that question open. Judge Griffith, writing for the court, dodged it by relying only on the Piggie Park prong. Judge Silberman, in concurrence, seemed (more or less) to agree (at least on this point). Only Judge Tatel specifically took on Shelby County's reading. Judge Tatel wrote that the question was simple: "Obviously, neither of these [amendments] includes any guarantees of state autonomy over voting. . . . The two Amendments thus 'guarantee' not state autonomy, but rather the right of citizens to vote, and they expressly guarantee that right against state interference."
The upshot is that the court appears to have left Shelby County's states' rights interpretation of the Fourteenth and Fifteenth Amendments on the table, an open question. This means that the Supreme Court could step in and answer it--it Shelby County's favor. (And given the Court's states' rights approach in the original case, this seems like a possibility.)
Still, the court's reasoning on Piggie Park is extremely thorough, and seems written to insulate the ruling against Supreme Court reversal.
Friday, August 28, 2015
The Ninth Circuit yesterday upheld federal laws criminalizing sexual assaults in facilities where federal inmates are held by agreement with state and local governments. The ruling is a baby-step extension of United States v. Comstock, the Court's 2010 case holding that Congress had authority under the Necessary and Proper Clause to authorize civil detention of "sexually dangerous" federal prisoners beyond their term of imprisonment. It's a baby-step beyond Comstock, because these laws have the added feature that they operate within state and local detention facilities--where the federal government contracts to hold federal inmates.
Sabil Mujahid brought the facial claim against the federal statutes, arguing that they exceeded Congress's authority and ran afoul of the Tenth Amendment. The provisions criminalized sexual assault "in any prison, institution, or facility in which persons are held in custody by direction of or pursuant to a contract or agreement with the Attorney General." By its plain terms, the provision outlaws sexual assault by non-federal inmates in these facilities, too, but Mujahid is a federal inmate, and the court limited its ruling to federal inmates.
The court, applying Comstock, flatly rejected Mujahid's claims. In short:
Like the civil commitment statute in Comstock, [these statutes] are not facially unconstitutional; they are "a 'necessary and proper' means of exercising the federal authority that permits Congress to create federal criminal laws, to punish their violation, to imprison violators, to provide appropriately for those imprisoned, and to maintain the security of those who are not imprisoned but who may be affected by the federal imprisonment of others. See Comstock.
As I said, the court specifically did not rule on the statutes as applied to state inmates in these same facilities. That question may raise more complicated issues (but just slightly).
Friday, July 24, 2015
The D.C. Circuit on Friday ruled that a case challenging the constitutionality of the Consumer Financial Protection Bureau can move forward. At the same time, the court dismissed claims against Dodd-Frank's Financial Stability Oversight Council and the government's orderly liquidation authority.
The mixed ruling sends the plaintiffs' case against the CFPB and the recess appointment of Director Richard Cordray back to the district court for a ruling on the merits. We'll undoubtedly see this case back at the D.C. Circuit.
We last posted on a challenge to the CFPB here. (The D.C. Circuit dismissed that case for lack of standing.)
The State National Bank of Big Spring and a number of states brought the case, arguing four points. First, the Bank argued that the CFPB is unconstitutional, because, as an independent agency, it has to be headed by multiple members, not a single director (as it is). Moreover, the bank says that Congress's delegation to the CFPB violates the non-delegation doctrine.
Second, the Bank argues that President Obama appointed Director Cordray as a recess appointment during a three-day intra-session Senate recess, in violation of Noel Canning. (Cordray was subsequently confirmed by the Senate, but the Bank says his actions in the meantime are invalid.)
Third, the Bank claims that the Financial Stability Oversight Council, which monitors the stability of the U.S. financial system and responds to emerging threats and has statutory authority to designate certain "too big to fail" financial companies for additional regulation, violates the non-delegation doctrine and related separation-of-powers principles.
Finally, the states claim that Dodd-Frank's liquidation authority, which permits the government to liquidate failing financial companies that pose a risk to financial stability, violates the non-delegation doctrine and the Bankruptcy Clause's guarantee of uniform bankruptcy laws.
The court held that the bank, as an entity actually regulated by the CFPB, had standing. The court also said that the bank's claims were ripe, under Abbott Labs and Free Enterprise Fund (the PCAOB case).
But the court ruled that the Bank lacked standing to challenge the Council. In particular, it rejected the Bank's novel claim that the Bank was harmed because the Council designated one of the Bank's competitors as "too big to fail," thus giving the competitor a "reputational subsidy."
The court also held that the states lacked standing to challenge the government's liquidation authority. The states said that they invested pension funds in financial companies, that states are therefore creditors in possible future liquidations, that such liquidations could deprive the states of uniform treatment, and that as a result the states' current investments are worth less. The court said this was too speculative.
July 24, 2015 in Cases and Case Materials, Congressional Authority, Courts and Judging, Jurisdiction of Federal Courts, News, Nondelegation Doctrine, Ripeness, Separation of Powers, Standing | Permalink | Comments (0)
Wednesday, July 8, 2015
In its opinion in Morales-Santana v. Lynch, a unanimous panel of the Second Circuit has held that the differential requirements regarding US presence for unwed fathers and unwed mothers to transmit citizenship to their child violated equal protection as included in the Fifth Amendment's protections. It creates a conflict in the circuits and sets up another trip to the United States Supreme Court on the issue, the last one having resulted in a 4-4 split as discussed below.
The statutory scheme at issue, the Immigration and Nationality Act of 1952, codified at 8 U.S.C. § 1409(c), was the one in effect when Morales-Santana was born in 1962 outside the US to unwed parents. His parents married each other in 1970 and he was admitted to the US as a lawful permanent resident in 1975. In 2000, Morales-Santana was placed in removal proceedings after a conviction for various felonies and applied for withholding based on derivative citizenship from his father.
Derivative citizenship, which occurs at the moment of birth, is bestowed on a child born abroad to an unwed citizen mother and non‐citizen father has citizenship at birth so long as the mother was present in the United States or one of its outlying possessions for a continuous period of at least one year at some point prior to the child’s birth. By contrast, a child born abroad to an unwed citizen father and non‐citizen mother has citizenship at birth only if the father was present in the United States or one of its outlying possessions prior to the child’s birth for a period or periods totaling at least ten years, with at least five of those years occurring after the age of fourteen. Morales-Santana's father, born in Puerto Rico in 1900, met the one year requirement but not the ten year requirement at the time of his son's birth. Both parties agreed that had Morales‐Santana’s mother, rather than his father, been a citizen continuously present in Puerto Rico until 20 days prior to her nineteenth birthday, she would have satisfied the requirements to confer derivative citizenship on her child. It is this gender‐based difference in treatment that Morales‐Santana claims violated his father’s right to equal protection.
The Second Circuit's decision that the differential requirements for unwed fathers and mothers is unconstitutional must confront several United States Supreme Court decisions that point in a different direction on the equal protection issue in citizenship statutes, including two recent decisions. First, the Court in Nguyen v. INS, (2001) upheld gender discrimination regarding establishment of paternity. The Second Circuit notes that Morales-Santana complied with the statutory provisions upheld in Nguyen: the child was "legitimated" and thus paternity "acknowledged" when his parents married in 1970. Second, and more important, is the Court's per curiam affirmance by an "equally divided Court" in Flores-Villar v. United States in 2011. The Ninth Circuit in Flores-Villar had upheld the differential residency requirement.
Judge Ray Lohier's opinion for the Second Circuit subjects the statutory scheme to intermediate heightened scrutiny under United States v. Virginia (VMI) (1996), rejecting the government's argument that essentially all citizenship statutes should be subject to mere rational basis review.
With regard to the government's proffered interests, the court acknowledged that ensuring a sufficient connection between the child and the United States is important, but then states that the differential treatments of mothers and fathers is unrelated to it: the government
offers no reason, and we see no reason, that unwed fathers need more time than unwed mothers in the United States prior to their child’s birth in order to assimilate the values that the statute seeks to ensure are passed on to citizen children born abroad.
The Second Circuit then recognizes that its "determination conflicts with the decision of the Ninth Circuit in Flores‐Villar, which addressed the same statutory provisions and discussed the same governmental interest in ensuring a connection between child and country."
As to the government's second interest - - - preventing statelessness - - - the court again agrees that it is important, but concludes that this was not a genuine actual interest of the legislation.
Neither the congressional hearings nor the relevant congressional reports concerning the 1940 Act contain any reference to the problem of statelessness for children born abroad. The congressional hearings concerning the 1952 Act are similarly silent about statelessness as a driving concern.
Moreover, even if it had been the government's concern, gender-neutral alternatives - - - which the court notes had been proposed as "far back as 1933" - - - would serve this purpose. Additionally, the ten year differential, which importantly cannot be cured since it attaches at the moment of birth, is substantial. Again, this time in a footnote (n.17), the court acknowledges that its decision differs from that of the Ninth Circuit.
The court then finds the paternity provision unconstitutional and rejects the government's proposed remedy that all derivative citizenship be subject to the longer ten year period.
Presumably, the government will seek certiorari. (And while this case involves a previous statute, the current statute maintains a gender differential). A petition would have a good chance of being granted given the split in the circuits. But the Court's 4-4 split in 2011 in Flores-Villar occurred because Justice Kagan was recused; this would not be the case this time. And perhaps the Obama Administration will chose not to seek review, although this seems unlikely.