Monday, December 2, 2013

Can a State Sue a Tribe for Off-Reservation Gambling?

That's the question before the Supreme Court today in Michigan v. Bay Mills Indian Community.  More particularly, the case asks whether the federal courts have jurisdiction to hear a state's claim that a Native American tribe's off-reservation casino violates the Indian Gaming Regulatory Act, and whether the tribe enjoys immunity from such a suit.

With the rapid proliferation of tribal gaming, including off-reservation gaming, the case could make an important statement about the regulatory authority of the tribe, the state, and the federal government over off-reservation gaming.  It could also make an important statement about federal court jurisdiction over a state's claim that a tribe's off-reservation gaming violates federal law, and about tribal immunity for such gaming.

Here's my oral argument preview of the case, republished, with permission, from the ABA Preview of U.S. Supreme Court Cases:

FACTS

Congress enacted the Indian Gaming Regulatory Act of 1988 (IGRA) in order to regulate gaming activities on “Indian lands.” The IGRA divides gaming into three separate classes and specifies how each class is regulated. Class I gaming includes social games and traditional tribal games; it is under the exclusive jurisdiction of the tribe. Class II gaming includes bingo and certain card games like poker; it is primarily within the jurisdiction of the tribe but subject to federal oversight.

Class III gaming, the class at issue here, includes everything else, such as slot machines and casino-style games. Class III gaming is not regulated by a uniform structure. Instead, an Indian tribe wishing to conduct Class III gaming has to adopt a gaming ordinance that is approved by the National Indian Gaming Commission (NIGC), a federal agency. The tribe also has to negotiate with the state where it is located and enter into a compact that will govern the gambling.

The Bay Mills Indian Community, a federally-recognized Indian tribe with a reservation in Michigan’s northern peninsula, entered into a compact with Michigan in 1993. Soon after the compact was finalized, the NIGC approved Bay Mills’s gaming ordinance. Bay Mills then proceeded to establish its own Gaming Commission. Bay Mills has continuously operated one or more gaming facilities on its reservation ever since.

In 1997, Congress passed the Michigan Indian Land Claims Settlement Act. The Act appropriated funds to Bay Mills and other Michigan Indian tribes to satisfy judgments that the Indian Claims Commission had entered in favor of the tribes. The Settlement Act directed that 20 percent of the funds awarded to Bay Mills be deposited in a “Land Trust” and required that earnings from the Trust “be used exclusively for improvements on tribal land or the consolidation and enhancement of tribal landholdings through purchase and exchange.” It also said that “[a]ny land acquired with funds from the Land Trust shall be held as Indian lands are held.”

In August 2010, Bay Mills used the funds from the Settlement Act land trust to purchase approximately 40 acres of land in Vanderbilt, Michigan, about 100 miles from the Tribe’s reservation. Bay Mills constructed a small casino on the property (initially with 38 electronic gaming machines, but later expanded to 84 machines) and began operating it on November 3, 2010. The U.S. Department of the Interior and the NIGC later issued letters concluding that the Vanderbilt casino was not located on “Indian lands” as defined by the IGRA, that it was therefore not eligible for gaming under the IGRA, and that the NIGC had no jurisdiction over it.

The state filed suit against Bay Mills in federal court. The state’s counts I and II alleged that the Vanderbilt land did not constitute “Indian lands” under the IGRA, and that Bay Mills therefore violated the compact. The state’s count III alleged that Bay Mills violated the IGRA by conducting gaming outside of Indian lands and that even if the Vanderbilt land constituted “Indian lands,” Bay Mills violated 25 U.S.C. § 2719 (and therefore the compact’s requirement that gaming comply with federal law) by operating a gaming facility on land acquired after October 17, 1988, that does not satisfy any statutory exception. The Little Traverse Bay Bands of Odawa Indians, which operated a competing casino about 40 miles away, filed a separate suit with similar claims the next day.

The district court consolidated the cases and entered a preliminary injunction halting the Bay Mills casino. Bay Mills appealed and moved for a stay of the injunction; the district court and the United States Court of Appeals for the Sixth Circuit both denied a stay.

While Bay Mills’s appeal was pending, the state amended its complaint to add three additional claims. Count IV alleged that Bay Mills violated federal common law by operating a casino that exceeds the scope of its authority. Count V alleged that Bay Mills failed to obtain a state license for a gaming facility in violation of Michigan law. Count VI alleged that the casino was a public nuisance under state law. The state also added several defendants—the Bay Mills Tribal Gaming Commission, the Commission’s members in their official capacities, and the members of the Bay Mills Executive Council in their official capacities.

On appeal, the Sixth Circuit reversed and vacated the preliminary injunction. The court held that the district court lacked jurisdiction as to counts I, II, and III. The court held that the district court had jurisdiction as to counts IV, V, and VI against Bay Mills, but that those counts were barred by tribal sovereign immunity. The court remanded the case to the district court to address the state’s counts IV-VI against the additional individual defendants.

The state brought this appeal. Little Traverse is not a party to it; neither are the individuals named in the state’s amended complaint.

CASE ANALYSIS

Federal courts are courts of limited jurisdiction. This means that their jurisdiction must be defined by statute. One common source of federal jurisdiction is found in 28 U.S.C. § 1331, which creates the so-called “federal question” jurisdiction. Under § 1331, federal district courts have original jurisdiction over “all civil actions arising under the Constitution, laws, or treaties of the United States.”

Another source of federal jurisdiction—one that goes particularly to gaming on Indian lands—is found in 25 U.S.C. § 2710(d)(7)(A)(ii), part of the NIGC. That provision says that federal district courts have jurisdiction over “any cause of action initiated by a State or Indian tribe to enjoin a class III gaming activity located on Indian lands and conducted in violation of any Tribal-State compact . . . .”

The parties here dispute whether the federal courts have jurisdiction over the state’s claims. In particular, they dispute whether the state’s claims arising out of the Bay Mills’s alleged violation of the compact fall under § 1331 (because these claims might amount to a violation of the IGRA, a federal statute), and whether the Vanderbilt casino is “a class III gaming activity located on Indian lands” under § 2710.

But even if a federal court has jurisdiction (under §§ 1331, 2710, or some other federal statute), certain parties, like Indian tribes, enjoy immunity from suit. The Supreme Court has recognized tribal sovereign immunity, and both parties agree that “the doctrine is now part of this Court’s settled precedent . . . .” But they disagree sharply over the extent of that immunity.

The state argues first that the district court has jurisdiction over its suit pursuant to § 2710. The state says that the Vanderbilt casino is “a class III gaming activity located on Indian lands,” because Bay Mills authorized, licensed, and operated the casino from its reservation. More particularly, it contends that § 2710 extends federal court jurisdiction to the gaming itself, but also to the gaming activity, which, the state argues, includes authorizing, licensing, and operating the casino. The state claims that its interpretation of the text is consistent with the congressional intent.

The state argues next that the district court has jurisdiction over its federal claims pursuant to § 1331. The state says that it alleged a violation of the IGRA, a federal statute, when it claimed that Bay Mills violated the compact (in counts I, II, and III). It also says that nothing in the IGRA limits the federal courts’ federal question jurisdiction under § 1331.

The state argues that tribal sovereign immunity does not bar its suit for two independent reasons. First, the state contends that the IGRA abrogated tribal sovereign immunity. The state says that the Court uses a “more holistic approach” in determining whether a federal statute abrogates tribal sovereign immunity, and that the IGRA viewed as a whole (and not just § 2710) makes clear that Congress intended that a state could enforce its gaming laws in federal court against an Indian tribe engaged in off-reservation gaming. The state claims that the opposite rule would lead to an absurd result—that the state could obtain a federal court injunction to stop illegal gaming on Indian lands, but not on its own sovereign state lands. The state says that Congress could not have intended this result.

Second, the state argues that even if the IGRA does not abrogate tribal sovereign immunity, the Court should decline to extend immunity here. The state says that the Court has never expressly extended tribal immunity to a tribe’s off-reservation commercial activities, and, especially given tribal immunity’s “dubious foundation,” the Court should decline to extend it to those activities in this case.

In response, Bay Mills first argues that the state cannot claim that the Vanderbilt casino is “on Indian lands,” as it does in its first point. Bay Mills says that that argument falls outside the questions presented, which speak solely to gaming activities “outside of Indian lands.” But even if this argument were properly before the Court, Bay Mills contends that the state is wrong: the IGRA itself says that a tribe’s decision to open a gaming facility is not a “class III gaming activity.”

Next, Bay Mills argues that it is immune from Michigan’s suit under § 1710. Bay Mills claims that § 1710 only abrogates tribal sovereign immunity “on Indian lands,” and that the whole premise of the state’s claim is that the Vanderbilt casino is off Indian lands. Bay Mills says that under the plain language of § 1710, “Michigan has simply pled itself out of court.”

To the extent that Michigan and its amici argue for a Court-created exception to tribal sovereign immunity, Bay Mills argues that the Court has already rejected the proposed exceptions. Bay Mills also says that the Court has rejected pleas to overrule its tribal sovereignty immunity precedents. Bay Mills contends that it is Congress’s prerogative, not the Court’s, to alter the scope of tribal sovereign immunity, and that Congress has only reaffirmed it. Bay Mills claims that tribal sovereign immunity “has deep roots in this country’s jurisprudence,” and that there is no reason for the Court to abrogate it now.

Finally, Bay Mills argues that the Ninth Circuit decision will not leave the state without a remedy, as the state argues. Bay Mills says that Michigan most obviously can invoke the dispute resolution procedure in the compact. Bay Mills claims that Michigan could also sue tribal officials for injunctive relief. Additionally, Bay Mills argues that the state could negotiate a waiver of sovereign immunity in the next round of compact negotiations, seek federal intervention in the dispute, or even outlaw gaming throughout the state.  

The federal government, as amicus in support of Bay Mills, also argues that the federal courts lack jurisdiction over Michigan’s claims. The federal government says that § 2710 does not extend jurisdiction of the state’s claims to the district court. Contrary to the state’s argument, the federal government says that numerous provisions in the IGRA demonstrate that the phrase “class III gaming activities” refers to the games themselves, and not to authorizing, licensing, and operating games. And because the games themselves are not located on Indian lands, § 2710 is not a basis for jurisdiction. Moreover, the federal government says that § 1331 does not extend jurisdiction, because the state’s federal claims (counts I, II, and III) do not fall within § 2710, and because the compact does not contain a provision agreeing to federal court review of the state’s other claims.

Next, the federal government argues that Bay Mills enjoys tribal sovereign immunity. The federal government says that § 2710 did not abrogate sovereign immunity, because the state alleged that the Vanderbilt casino is not on Indian lands. The federal government contends that 18 U.S.C. § 1166 also does not abrogate sovereign immunity, because that statute gives the federal government (not the states) enforcement authority in Indian lands for violations of assimilated state gambling laws. The federal government says that § 1166 does not give states authority to enforce state gambling laws outside Indian lands, and even less to sue the tribe itself. The government contends that tribal sovereign immunity already extends to a tribe’s commercial activities wherever they take place, and that the Court should leave it to Congress to balance the interests of the tribes and the states and to determine the scope of immunity.

Finally, the federal government argues that Michigan has other remedies. Like Bay Mills, the federal government says that the state could seek injunctive relief against an individual tribal official. The federal government claims that the state could also negotiate a waiver of sovereign immunity in the compact. Moreover, the federal government contends that the state could request approval from the NIGC of a site-specific gaming ordinance for the Vanderbilt casino, forcing the NIGC to determine whether the site is eligible for gaming, and appeal the decision in court. Finally, the federal government notes that the state can enforce its own gaming laws against individuals involved in gaming at the Vanderbilt casino. With all these options, the federal government argues that there is no need to diminish tribal sovereign immunity to create a remedy that would resolve this dispute.

SIGNIFICANCE

At its core, this case is about the allocation of power between states and Indian tribes over the operation of an activity, tribal-sponsored gambling, that has seen astonishing growth in recent decades and today is worth tens of billions of dollars nationwide. (The NIGC tracks this growth in Gaming Revenue Reports, available at http://www.nigc.gov/Gaming_Revenue_Reports.aspx.) Both Indian tribes and states use legalized gaming more and more for revenue, economic development, and economic activity and opportunity. Within this broader context, the regulation of tribal gaming, even at the margins, is itself a high-stakes game.

To be sure, this case deals with only a small part of this larger question, that is: off-reservation gambling. And it involves only special federal jurisdictional and immunity questions that come up in the particular case when an Indian tribe purchases land to build an off-reservation casino.

Still, in the rapidly growing sector of Indian gaming, the case already matters. As Michigan indicates, it “is already aware of at least three additional lawsuits where parties have cited the Sixth Circuit’s decision here in support of a tribe’s operation (or planned operation) of a casino in violation of IGRA or tribal-state gaming compacts.” The state notes that “[a]s tribes continue to look for better casino locations . . . or new ways to profit from the explosion of casino gaming, the friction between state authority and tribal immunity will inevitably increase.” That’s not to say that Michigan’s positions in the case are (necessarily) right, but only that the issues are already significant, and only likely to grow in importance.

Moreover, the issues are highly controversial. On the one hand, many favor expanding off-reservation gaming opportunities, because Indian tribes and states can use off-reservation gaming to generate more revenue and economic development in more attractive locations off the reservations (like closer to urban centers). On the other hand, many oppose off-reservation gaming, because it encroaches on local communities. The debate is playing out in communities across the country where Indian tribes are seeking permission to conduct off-reservation gaming. The debate is also playing out in Washington, where the Obama administration moved in 2011 to loosen requirements for some off-reservation gaming, and where some in Congress have introduced legislation to tighten them. Again, this case sits right at the center of these debates.

Whatever happens in this case, though, it cannot change the basic statutory framework under the IGRA: Indian tribes will still have to adopt a gaming ordinance and negotiate a compact with the state. The compact requirement ensures that both states and Indian tribes will have a significant hand in regulating casino-like tribal gaming. But the outcome of the case may affect how Indian tribes and states negotiate their compacts and the terms they include in them.

It is important to remember that the Department of the Interior and the NIGC issued opinions that the Vanderbilt casino was not on “Indian lands” and was therefore not eligible for gaming under the NGRA. The federal government does not disavow these opinions. Indeed, the federal government sets out an array of options for Michigan to regulate the Vanderbilt casino (and other future casinos), notwithstanding (as the federal government argues) the federal courts’ lack jurisdiction over the state’s claims and Bay Mills’s immunity from suit. In other words, the Sixth Circuit ruling does not mean that Bay Mills can operate its casino, or that other tribes could operate like casinos off reservation, without at least some state and federal oversight and permission.

Finally, the case is significant because it will resolve splits in the circuits. There is disagreement among the circuits on both questions presented—the scope of federal jurisdiction, and the scope of tribal sovereign immunity.

December 2, 2013 in Cases and Case Materials, Congressional Authority, Courts and Judging, Federalism, Jurisdiction of Federal Courts, News | Permalink | Comments (0) | TrackBack (0)

Tuesday, November 26, 2013

United States Supreme Court Grants Certiorari on Religious Claims of Secular For-Profit Corporation

As widely expected, United States Supreme Court has granted the petitions for writ of certiorari to the Tenth Circuit's divided en banc opinion in Hobby Lobby v. Sebelius as well as to the Third Circuit's divided opinion in Conestoga Wood Specialties Corporation v. Secretary of Department of Health and Human Services.  

SCOTUS
Supreme Court Justices by Donkey Hotey

 

In lengthy opinions, the Tenth Circuit en banc in Hobby Lobby  essentially divided 5-3 over the issue of whether a corporation, even a for-profit secular corporation, has a right to free exercise of religion under the Religious Freedom Restoration Act (RFRA) and the First Amendment's Free Exercise Clause.  The majority essentially concluded there was such a right and that the right was substantially burdened by the requirement of the PPACA that employer insurance plans include contraception coverage for employees. 

The majority of the Third Circuit panel opinion in Conestoga Wood Specialities Corporation, articulated the two possible theories under which a for-profit secular corporation might possess Free Exercise rights and rejected both.  First, the majority rejected the notion that the Conestoga Wood Specialties Corporation could "directly" exercise religion in accord with Citizens United v. Fed. Election Comm’n (2010), distinguishing free speech from free exercise of religion.  Second, the majority rejected the so-called "pass through" theory in which for-profit corporations can assert the free exercise rights of their owners, and concluded that the PPACA did not actually require the persons who are owners to "do" anything.

For ConLaw Profs, here are some useful links:  A discussion of the most recent circuit case, decided earlier in November by the Seventh Circuit, is here;  a digest of the previous circuit court cases and some discussion of the controversy is here, some interesting hypotheticals (good for teaching and exam purposes) as posed by Seventh Circuit Judge Rovner are here,  ConLawProf Marci Hamilton's discussion is here, a critique of the sincerity of claims in Eden Foods is here,  a discussion of the district judge's opinion in Hobby Lobby is here,  a discussion of the Tenth Circuit en banc opinion in Hobby Lobby is here, and the SCOTUSblog page with briefs is here.

[image: Supreme Court Justices by Donkey Hotey via]

~Ruthann Robson

November 26, 2013 in Cases and Case Materials, Congressional Authority, Courts and Judging, Family, First Amendment, Free Exercise Clause, Gender, Religion, Supreme Court (US), Teaching Tips | Permalink | Comments (0) | TrackBack (0)

Thursday, November 21, 2013

Reid to go Nuclear

Senate Majority Leader Harry Reid announced today that he's proposing changes to the Senate rules that would abolish the filibuster for most judicial and executive branch nominees.  Reid's proposal would reportedly retain the filibuster for Supreme Court nominees.

Politico reports here.

Reid is reportedly prepared to go nuclear--that is, to change the rules by a simple majority vote.

Reid's proposal comes on the heels of three successful filibusters in as many weeks by Senate Republicans of President Obama's picks for the D.C. Circuit.

November 21, 2013 in Appointment and Removal Powers, Congressional Authority, News | Permalink | Comments (0) | TrackBack (0)

Tuesday, November 19, 2013

Government Releases Trove of NSA Documents

The Obama administration late Monday released a trove of documents related to NSA surveillance, including key FISA court rulings and other materials going back to the Bush administration.  The NYT reports here.  Lawfare is covering the release and analyzing particular documents here.

The materials include documents on government e-mail and domestic phone surveillance, including the Bush administration's 2006 application for initial approval by the FISA court to collect bulk logs of domestic phone calls and a FISA court ruling approving a program to track e-mails during the Bush administration.

The Office of the Director of National Intelligence declassified and released the documents in response to FOIA lawsuits by the ACLU and EPIC.

 

November 19, 2013 in Congressional Authority, Executive Authority, Fourth Amendment, News, Separation of Powers | Permalink | Comments (0) | TrackBack (0)

Monday, November 18, 2013

Senate Republicans Block Third D.C. Circuit Nominee in Three Weeks

Senate Republicans once again successfully blocked a nominee for the D.C. Circuit.  Today's vote, 38 to 53, fell seven short of the 60 needed to overcome the Republican filibuster of Robert Wilkins's nomination to the court.  Politico reports here.

This now puts Republicans at 3-0 in the last three weeks in blocking judicial nominees to the D.C. Circuit.  In the last two weeks, they successfully filibustered Patricia Millett and Nina Pillard.

Some Senate Democrats are making more noise about using the nuclear option, that is, getting rid of the filibuster (the cloture rule) for judicial nominees.  Republicans (still) say that the court isn't busy enough to fill the three vacancies, and that they're just doing the same thing that Democrats did when they blocked President Bush's nominee to the court, Peter Keisler. 

Active judges on the court are evenly divided between those appointed by Democrats and those appointed by Republicans.  But five of the court's six senior judges--who still sit and decide cases--are appointed by conservatives.  Indeed, 15 of the last 19 appointments to the court were by Republican presidents.

November 18, 2013 in Appointment and Removal Powers, Congressional Authority, Executive Authority, News | Permalink | Comments (0) | TrackBack (0)

Sunday, November 17, 2013

How the President Should Deal With the Debt Limit

Neil H. Buchanan (GW) argues at the Jurist.org that the President should just pay the nation's bills if Congress fails to increase the debt ceiling.

Buchanan summarizes an argument that he and Michael Dorf made over three articles last year in the Columbia Law Review--one, two, and three--that the President should do the least constitutional damage if ever faced with a trilemma involving taxing, spending, and a debt ceiling that don't add up. 

Buchanan and Dorf argue that Congress would create this trilemma if it failed to increase the debt limit: Congress would have authorized a particular level of taxation; Congress would have authorized a higher level of spending; and Congress would have capped the debt limit at a level lower than authorized spending.  All three are congressional acts that the President must enforce, but if the President enforces any two, he necessarily violates the third.

So: what to do?

Buchanan and Dorf argue that the constitution requires the President to take the action (1) that exercises as little legislative power as possible and (2) in a way that allows Congress to later enact legislation that can undo his actions, if it so desires.

Those two criteria mean that the President should, even must, violate the debt limit.  That's because violating the debt limit (but complying with the taxing and spending measures passed by Congress) is the choice that's least legislative in nature, and the one that Congress can later undo (by enacting taxing and spending measures that add up). 

Buchanan explains why this solution is novel--but also why it's right:

Bizarrely, the shared assumption among Republicans and Democrats alike has been that the president must simply default on the government's spending obligations, if he is ever faced with a trilemma. . . .

The reason that is so bizarre is that it simply presumes that duly-enacted spending laws can be ignored by the president.  They cannot.  We are not taking about choosing to increase or decrease future levels of spending, after all.  We are, instead, contemplating having the president refuse to honor legal claims for payment from the federal government, choosing not to pay the government's legal obligations, in full, on the date that they are due.

November 17, 2013 in Congressional Authority, Executive Authority, News, Separation of Powers, Spending Clause, Taxing Clause | Permalink | Comments (0) | TrackBack (0)

Tuesday, November 12, 2013

Senate Republicans Successfully Filibuster Pillard Nomination to D.C. Circuit

The Senate failed to break a Republican-led filibuster today on President Obama's nomination of Nina Pillard to the D.C. Circuit.  The vote on the cloture motion was 56-41, but 60 votes are needed to close debate. 

The move marks the second time in two weeks that Republicans have successfully filibustered President Obama's nominees to the D.C. Circuit.  The last failed cloture vote came on October 31, on Patricia Millett's nomination.

Republicans complain that the President is trying to "stack" this court, often called the second most important court in the country.  But that's not exactly right: Democratic Presidents still have a ways to make up with their nominees on the court, as we explained here.  The American Constitution Society's JudicialNominations.org has more information about judicial vacancies, including the D.C. Circuit, here.

No word whether the Democrats will use the nuclear option (and eliminate the filibuster for judicial nominations), but TPM Livewire reports that Senate Grassley "dared Democrats to 'go ahead,'" warning that such a move would make it easier for future Republicans "to appoint judges like Antonin Scalia."

November 12, 2013 in Appointment and Removal Powers, Congressional Authority, Executive Authority, News | Permalink | Comments (0) | TrackBack (0)

Tuesday, November 5, 2013

Court Hears Oral Arguments in Bond v. United States on Treaty Power and Chemical Weapons

The oral arguments in Bond v. United States today evoked both the use of chemical weapons in the ongoing conflict in Syria and the understandings of the farmers of the Constitution regarding the  power given to the Executive, with "Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur."  The treaty at issue is the Chemical Weapons Convention, but also at issue is the Chemical Weapons Implementation Act.

Carol Anne Bond was convicted of a crime in violation of the Act, 18 U.S.C. § 229(a).  But the fact that she is not a "terrorist," but rather a venegful woman in a love triangle, has caused much consternation.  While the international arms-control agreement prohibits nation-states from producing, stockpiling, or using chemical weapons, Bond, a biologist, used her expertise to spread injurious chemicals on the property of her former best friend, after learning that the friend was pregnant by Bond’s husband.   Although Bond was prosecuted in state court, she continued her campaign against her former friend and she was eventually prosecuted in federal court.

772px-4308313563_502491392a_bAlabamaBombingGasIt's not the first time that Carol Anne Bond has been before the United States Supreme Court.  Recall that in 2011, the Court unanimously held that Bond could raise a Tenth Amendment claim in her prosecution, reversing the Third Circuit.

On remand, the Third Circuit rejected Bond's argument to  "set aside as inapplicable the landmark decision Missouri v. Holland, 252 U.S. 416 (1920), which is sometimes cited for the proposition that the Tenth Amendment has no bearing on Congress‟s ability to legislate in furtherance of the Treaty Power in Article II, § 2 of the Constitution."  Bond argued that "legal trends since the Supreme Court‟s 1920 decision in Holland make it clear that the Tenth Amendment should not be treated as irrelevant when examining the validity of treaty-implementing legislation."   The Third Circuit found that the Chemical Weapons Convention "falls comfortably within the Treaty Power's traditional subject matter limitation" and thus the implementing Act is "within the constitutional powers of the federal government under the Necessary and Proper Clause and the Treaty Power, unless it somehow goes beyond the Convention."  The Supreme Court (again) granted the petition for certiorari.

In a nutshell, Bond's prosecution under a federal law for what seems a state (local) crime raises issues of federalism not unlike the issues the Court has confronted regarding the power of Congress to criminalize guns in school zones (Lopez) or marijuana (Raich).  But the invocation of these cases at the beginning of Paul Clement's argument on behalf of Carol Anne Bond brought a clarification from Justice Scalia that the Court did not take the case to decide any Commerce Clause question.  Instead, the focus must be on the Treaty power and whether a treaty can alter constitutional structures, namely federalism.  

Later, Justice Alito returned to these cases as well as Section 5 (of the Fourteenth Amendment) to pose a question to the Solicitor General about the Treaty power as circumventing the Court's limitations, and interestingly demonstrating a familiarity with scholarly articles:

JUSTICE ALITO: Whenever -- when this Court has issued decisions in recent years holding that there are some limits on Congress's power, cases like Lopez and Morrison and City of Boerne, there have been legal commentators who have written articles saying that could be circumvented to -- through the use of the treaty power. Do you agree with that?

The Solicitor General eventually answered that it depended on "whether the treaty is a valid exercise of the treaty power."

The limiting construction of the statute proposed by Paul Clement - - - war-like use of the chemicals as includable within federal power - - - proved problematic at times.  The Solicitor General argued that this was "one of the very things we are trying to sort out right now in Syria under the Chemical Weapons Convention is where the line is between peaceful and warlike uses."  On the other hand, the lack of a line other than valid treaty also proved problematical. 

The Solicitor General often summoned originalist principles to support the primacy of a ratified treaty.  Justice Kagan in her questioning of Paul Clement suggested that all properly ratified treaties must be constitutional:

Because there's clearly a treaty power that does not have subject matter limitations. And, indeed, if you go back to the founding history, it's very clear that they thought about all kinds of subject matter limitations and James Madison and others decided, quite self-consciously, not to impose them. So where would you find that limitation in the Constitution?

MR. CLEMENT: I would find that limitation in the structural provisions of the Constitution and the enumerated powers of Congress. And I would say that it would be very -­

JUSTICE KAGAN: But this isn't an enumerated power. The enumerated power is the treaty power. So you have to find a constraint on the treaty power. Where does it come from?

MR. CLEMENT: Well, I think where that it would come from, again, is the structural provisions of the Constitution.

As to federalism being a limit, Chief Justice Roberts responded to the Solictor General's argument that the framers deemed the 2/3 ratification by the Senate was an important protection of the interests of the States by noting that at that time, the Senate was elected by State legislatures.
The tenor of the arguments, the echoes of Bond's previous unanimous success at the Supreme Court on the Tenth Amendment standing issue, and the Court's majority suspicion of federal power may mean another win for Carol Anne Bond before the United States Supreme Court.
[image via]

November 5, 2013 in Congressional Authority, Executive Authority, Oral Argument Analysis, Supreme Court (US), Theory | Permalink | Comments (0) | TrackBack (0)

Monday, November 4, 2013

Conservative Physician Group Sues to Stop Individual Mandate

The Association of American Physicians and Surgeons filed suit last week to stop the government from enforcing the universal coverage provision (the individual mandate) in the Affordable Care Act.  The group argues that the court should issue an order prohibiting the enforcement of the individual mandate, because President Obama lacked authority to delay enforcement of the employer mandate.

Recall that President Obama this past summer unilaterally delayed enforcement of the employer mandate--the ACA's requirement that employers with over 50 employees provide health insurance for their employees.  The authority for this move, however, wasn't at all obvious.  That's because the ACA says in pretty clear language that the employer mandate "shall apply to months beginning after December 31, 2013."

We commented at the time that the question of authority might not matter, because it wasn't clear that anyone would have standing to challenge the delay.

Enter the AAPS.  The group argues that President Obama's delay of the employer mandate violates the separation of powers--that President Obama can't unilaterally delay enforcement of a statutory requirement. Still, it's not obvious why this group should have standing.  Here's what the complaint says:

13. Defendant's shifting of the mandate for health insurance premiums from employers to only individuals causes the elimination of many cash-paying patients from the medical practices of [plaintiff McQueeney, an AAPS member] and other AAPS members.  Defendant's shifting of the ACA insurance burden entirely onto individuals diverts their discretionary health care dollars towards insurance premiums, away from direct payments to physicians.  This significantly reduces the customer base for AAPS members who have "cash practices" accepting direct payments from patients.

That may not sound like the strongest theory of standing. 

But if standing's a weakness, there's more.  The complaint alleges that "Defendant changes legislation passed by Congress in violation of the separation of powers in the Constitution, and the Tenth Amendment."  (Emphasis added.)  The Tenth Amendment?  That seems surprising in this context, and unnecessary given the stronger arguments one might make about a President's inability to unilaterally delay the implementation of a mandate.

But if the invocation of the Tenth Amendment seems odd, there's yet even more.  The complaint argues that President Obama lacked authority to delay the employer mandate, but asks for a court order stopping the enforcement of the individual mandate

Between standing issues, a novel use of the Tenth Amendment, and redressability issues, this complaint has its problems. 

The attorney who filed it, Andrew Schlafly, is a conservative activist, son of Phyllis Schlafly, and founder of Conservapedia, a conservative web-site that grew out of one of Schlafly's home-school courses.

 

November 4, 2013 in Cases and Case Materials, Congressional Authority, Executive Authority, News, Separation of Powers | Permalink | Comments (0) | TrackBack (0)

Is it the Supreme Court's Role to Fashion a Standard for the Meaning of Clothes?

The United States Supreme Court today heard oral argument in Sandifer v. United States Steel Corporation centered on the meaning of  “changing clothes” in section 203(o) of the Fair Labor Standards Act.  The Seventh Circuit's opinion by Judge Richard Posner found in favor of U.S. Steel that donning and doffing the safety gear was not necessarily changing clothes, because

not everything a person wears is clothing. We say that a person “wears” glasses, or a watch, or his heart on his sleeve, but this just shows that “wear” is a word of many meanings.

Sandifer posnerHe included an image in the opinion (at right) and stated

Almost any English speaker would say that the model in our photo is wearing work clothes.

And indeed, Justice Ginsburg, during the oral argument at the Supreme Court did just that, but the discussion continued:

JUSTICE GINSBURG: But we're dealing with here, from the picture, that looks like clothes to me.

MR. SCHNAPPER: Your Honor, I think that your question raises an excellent point. One of the problems with the picture is that it withholds from you other information that you would use to assess whether to describe it as clothes. You don't know what -­

JUSTICE KENNEDY: Except you would look and say, those clothes probably have something special underneath them. I mean, in ordinary parlance I think that would be a proper use of diction.

MR. SCHNAPPER: If you saw an airbag jacket, you would probably call it clothes unless you are an equestrian. It looks like a jacket. If you saw a compression torsion -- a torso compression bandage in a photograph, you would call it clothes, because you don't have all the relevant information.

JUSTICE ALITO:  Why is it that the jacket and the pants in that picture are not clothes?

MR. SCHNAPPER: In our view -- well, let me -- part of it -- first of all, they are designed for a protective function, to protect you from catching fire.

In addition to the ruminations on the meaning of clothes, perhaps leading to a definitional rule, there were attempts to understand why it mattered in this interpretation of the statute.   The statute excludes from “hours worked”

any time spent in changing clothes or washing at the beginning or end of each workday which was excluded from measured working time during the week involved by the express terms of or by custom or practice under a bona fide collective-bargaining agreement applicable to the particular employee.

Thus an employee would need to be paid for putting on "gear."

But if the Court can't tell by simply looking, then what?  As Justice Kagan noted toward the end of the argument, the distinction between clothes and gear "seems the quintessential question of statutory interpretation to which we would normally defer to the agency," but in this case, the agency hasn't issued a regulation.  Justice Scalia offered his own explanation for the administrative failure to address the matter with a rule: "Too complicated is why." 

Thus, while Judge Posner's opinion did raise some constitutional considerations about agency and executive power regarding differing meanings driven by politics, the constitutional question implicit in the Supreme Court arguments involve the separation of powers and the role of the Court in statutory interpretation.

So it is up to the Court to "fashion a standard," as Eric Schnapper, representing Clifton Sandifer, phrased it during oral argument.

(cross-posted at Dressing Constitutionally)

November 4, 2013 in Congressional Authority, Courts and Judging, Executive Authority, Oral Argument Analysis | Permalink | Comments (0) | TrackBack (0)

Tuesday, October 29, 2013

Catholic Media Corporation, Alabama Sue Over Contraception Mandate

The Eternal World Television Network, a Catholic media corporation, and the State of Alabama filed suit against the government yesterday, seeking to halt the contraception mandate in the Affordable Care Act. 

EWTN argues that the mandate violates the Religious Freedom Restoration Act and the religion clauses, among other claims.  Alabama says that the mandate intrudes on its "sovereign prerogative to regulate the insurance market in accordance with its own law and policy, without being contradicted by unlawful federal regulations."

The case is just the latest religious-based challenge against the contraception mandate.  We posted most recently just yesterday, on the Sixth Circuit's ruling in Eden Foods.  If Eden Foods seemed more political than religious-based--the plaintiff's "deeply held religious beliefs" "more resembled a laissez-faire, anti-government screed," according to the court--this case seems more political than religious-based for a different reason: EWTN is exempt under HHS regs, and if the mandate is valid Alabama simply has no claim.  In other words: the plaintiffs don't seem to have much to complain about.  We posted on the government's proposed regs exempting religious employers here; and we posted on the then-developing circuit split on the issue here.

EWTN says this about its accommodation under the regs:

This is a mere fig leaf.  It would still require EWTN to play a central role in the government's scheme by "designating" a fiduciary to pay for the objectionable services on EWTN's behalf.  This would do nothing to assuage EWTN's objections to the mandate.

The so-called "accommodation" also continues to treat EWTN as a second-class religious organization, not entitled to the same religious freedom rights as the Church it exists to serve.  It also creates administrative hurdles and other difficulties for EWTN, forcing it to seek out and contract with companies willing to provide the very drugs and services that EWTN speaks out against.

As to Alabama, the State apparently seeks to protect itself and its citizens from the "immediate and continuing burdens" of the mandate.  The State points out that its law expressly says that insurers do not have to provide contraception coverage in their plans.  The claim sounds in federalism, but the complaint doesn't say why or how the federal mandate violates federalism principles.  (Maybe that's because it doesn't.)

The plaintiffs also raise free speech, due process, and APA claims.

October 29, 2013 in Cases and Case Materials, Congressional Authority, Establishment Clause, Federalism, First Amendment, Free Exercise Clause, News, Religion | Permalink | Comments (0) | TrackBack (0)

Sunday, October 27, 2013

Government Notifies Defendant of Warrantless Wiretap, Tees Up Challenge

The Department of Justice for the first time notified a criminal defendant that evidence against him was obtained through a warrantless wiretap, according to the New York Times.  The move gives the criminal defendant the standing to challenge warrantless wiretapes that the plaintiffs in Clapper v. Amnesty International lacked and invites his challenge of warrantless wiretaps.  Our previous post on the issue is here.

The defendant, Jamshid Muhtorov, is charged with "provid[ing] and attempt[ing] to provide material support and resources, to wit: personnel . . . to a foreign terrorist organization, specifically the Islamic Jihad Union . . . knowing that the organization was a designated terrorist organization, that the organization had engaged in and was engaging in terrorist activity and terrorism, and the offense occurred in whole or in part within the United States" in violation of 18 U.S.C. Sec. 2339B.  The notice says that the government

hereby provides notice to this Court and the defense, pursuant to 50 U.S.C. Secs. 1806(c) and 1881e(a), that the government intends to offer into evidence or otherwise use or disclose from acquisition of foreign intelligence information conducted pursuant to the Foreign Intelligence Surveillance Act of 1978 . . . .

The Supreme Court held that the plaintiffs in Clapper lacked standing to challenge warrantless wiretaps, because they couldn't show that they'd been, or would be, wiretapped under the specific statutory authority they sought to challenge.  Now that the government has disclosed that its evidence resulted from warrantless wiretaps, Muhtorov has clear standing to challenge the wiretaps. 

This merely puts the legality of the wiretaps before the courts; it doesn't answer the underlying question.  For that, we'll have to await the ruling and appeals.

October 27, 2013 in Cases and Case Materials, Congressional Authority, Courts and Judging, Criminal Procedure, Fourth Amendment, Fundamental Rights, News | Permalink | Comments (0) | TrackBack (0)

Wednesday, October 23, 2013

District Judge Dismisses Separation of Powers Challenge to CFPB

Update Below

Judge Colleen Kollar-Kotelly (D.D.C.) dismissed a separation-of-powers challenge to the Consumer Financial Protection Bureau, an independent agency created by Dodd-Frank that's tasked with the responsibility for "ensuring that all consumers have access to markets for consumer financial products and services and that markets for consumer financial products and services are fair, transparent, and competitive."  (This case challenges the CFPB on separation-of-powers grounds.  We most recently posted on the other challenge to the recess-appointed head of the CFPB here.  The recess appointment question is heading to the Supreme Court in Noel Canning.)

But the order dismissing the case in the D.C. District didn't touch the merits, and the plaintiffs in the D.C. case will undoubtedly raise the same constitutional claims in the underlying enforcement action against them in the Central District of California.

The case, Morgan Drexen, Inc. v. CFPB, arose after the CFPB filed an enforcement action against Morgan Drexen in the Central District of California.  Morgan Drexen and its "attorney-client" then filed for injunctive and declaratory relief in the D.C. District, seeking to halt the enforcement action in the Central District of California, arguing that the CFPB violates constitutional separation-of-powers principles.  The result: two parallel cases in two different courts, one enforcement action and one facial challenge, challenging the CFPB on constitutional grounds.

Update: Morgan Drexen filed in the D.C. court before the CFPB filed its case in California.

But Judge Kollar-Kotelly didn't bite.  Instead, the court ruled that injunctive and declaratory relief in the D.C. District would be inappropriate with the case pending in California--and that Morgan Drexen could obtain complete relief on its claim there.  (The court said that ruling on the matter would frustrate both the final judgment rule (because Morgan Drexen could immediately appeal a D.C. District ruling on the merits, but not a ruling from the Central District of California denying a motion to dismiss on constitutional grounds) and the principle of constitutional avoidance (because the Central District of California could dodge the constitutional issues and rule on other grounds, but the D.C. District case would force the court to address the constitutional claims).  The court also ruled that declaratory relief was inappropriate.

The court held that Morgan Drexen's "attorney-client" lacked standing, becuase she couldn't point to specific or generalized interference with the attorney-client privilege, or any other harm in the CFPB's investigation or enforcement action against Morgan Drexen.

The case ends this collateral piece of the litigation, but it doesn't end the enforcement action, still pending in the Central District of California.  Morgan Drexen raises the same constitutional claims, and other statutory claims, as defenses in that case. 

October 23, 2013 in Appointment and Removal Powers, Cases and Case Materials, Congressional Authority, Executive Authority, Jurisdiction of Federal Courts, News, Opinion Analysis, Separation of Powers, Standing | Permalink | Comments (0) | TrackBack (0)

Monday, October 21, 2013

Rand Paul Proposes Amendment to Apply Laws to Congress, Too

Senator Rand Paul introduced a constitutional amendment today that would require Congress to apply laws equally to U.S. citizens and to Congress.  Politico reports here; Senator Paul's press release is here.

The proposed amendment reads,

Section 1. Congress shall make no law applicable to a citizen of the United States that is not equally applicable to Congress.

Section 2. Congress shall make no law applicable to a citizen of the United States that is not equally applicable to the executive branch of Government, including the President, Vice President, ambassadors, other public ministers and consuls, and all other officers of the United States, including those provided for under this Constitution and by law, and inferior officers to the President established by law.

Section 3. Congress shall make no law applicable to a citizen of the United States that is not equally applicable to judges of the Supreme Court of the United States, including the Chief Justice, and judges of such inferior courts as Congress may from time to time ordain and establish.

Section 4. Nothing in this article shall preempt any specific provision of this Constitution.

The proposed amendment comes amid continuing calls to apply the Affordable Care Act, or Obamacare, equally to government officers and employees.  In particular, opponents of the health care law argue that it exempts members and employees of Congress.  This isn't exactly correct: the law requires members and employees to enter health exchanges, but an OPM rule issued in September said that they will continue to receive federal employer contributions to help them pay for insurance on the exchanges.  Here's the kick: they have to buy insurance in an appropriate Small Business Health Options Program, or SHOP, in order to get the government contribution.  SHOP programs are ordinarily available only for employees of businesses with fewer than 50 workers.  Members and employees of Congress number around 16,000.  Thus the claim that they're exempt.

PolitiFact, Factcheck.org, and WaPo's Fact Checker all concluded that this claim is false, or at least highly misleading.

Still, it persists.  But if Senator Paul's proposed amendment is taking aim at an "exemption," it'll miss the mark.  That's not only because there is no exemption.  It's also because members and staff (and all federal employees) previously received employer-provided health insurance, like many employees.  But under the ACA, members and staff (unlike any other employees) are required to enter exchanges to get their insurance.  They can opt for a SHOP plan and get a subsidy, or they can opt for a non-SHOP plan and waive the subsidy.  Either way, the ACA simply replaced their previous employer-provided insurance with a requirement to enter the exchange and, if they enroll in a SHOP plan, get a subsidy.

At the same time, the ACA will (eventually) require employers to provide insurance options for their employees.

So taking all this together, as to members and employees of Congress, the net result of Senator Paul's proposed amendment would probably mean that Congress would revert back to the employer-provided insurance system in place before the ACA, not take away the phantom "exemption" or the SHOP subsidy.

October 21, 2013 in Cases and Case Materials, Congressional Authority, News | Permalink | Comments (1) | TrackBack (0)

Wednesday, October 16, 2013

Toobin on Recess Appointments and Noel Canning

Jeffrey Toobin writes in the Daily Comment at The New Yorker that the Noel Canning case on recess appointments, now before the Supreme Court, could lead to an entirely new level of dysfunction in Washington--putting the current crisis to shame.  That is, if the Court strikes President Obama's recess appointments to the NLRB.  (Our latest post on Noel Canning, with links to earlier posts and lower court rulings, is here.)  Toobin explains:

If the ruling by the D.C. Circuit [striking President Obama's recess appointments to the NLRB] is upheld, the result will be a massive shift of power from Presidents to Senate minorities.  Forty senators will have the power to stop an agency from functioning.  Given the general political inclinations of the contemporary G.O.P., this would be a tremendous victory.  They don't want an N.L.R.B. at all, and they don't care for most other regulatory agencies, either.  The D.C. Circuit decision is more than a gift of a minority veto on individual members of a commission; it's a minority veto on the very existence of vunerable federal agencies.

The Canning case brings together several themes of recent political life: fierce congressional obstruction of President Obama, aggressive use of the courts by conservative activists, precedent-shattering rulings by conservative judges to undo the work of the democratically elected branches of government.  As with so many of these struggles during the Obama era, the outcome is far from certain.

October 16, 2013 in Appointment and Removal Powers, Cases and Case Materials, Congressional Authority, Executive Authority, News, Separation of Powers | Permalink | Comments (0) | TrackBack (0)

FISA Court Says 24.4 Percent of Matters Involve Substantive Changes

Foreign Intelligence Surveillance Court Presiding Judge Reggie Walton wrote to Senators Leahy and Grassley this week that "24.4% of matters submitted [to the FISA court] ultimately involved substantive changes to the information provided by the government or to the authorities granted as a result of Court inquiry or action."  Judge Walton wrote that "[t]his does not include, for example, mere typographical corrections."  The figure comes from a three-month study of FISA court matters, between July 1, 2013, and September 20, 2013, but Judge Walton wrote that "we have every reason to believe that this three month period is typical . . . ."

The letter is a follow up to a letter that Judge Walton sent to the Judiciary Committee on July 29, 2013 (included after the most recent letter).  It doesn't say how many matters the FISA court dealt with during the three-month period or give any other details.  It does say, however, that the FISA court will continue to collect statistics.

The two letters come amid continued scrutiny of the FISA court, following criticism this summer after the Snowden release.  The Senate Judiciary Committee held an oversight hearing on the FISA earlier this month.  In his opening remarks, Senatory Leahy described features of  his bill, S. 1215, the FISA Accountability and Privacy Protection Act of 2013:

Our legislation would end Section 215 bulk collection.  It also would ensure that the FISA pen register statute and National Security Letters (NSLs) could not be used to authorize bulk collection. . . .

In addition to stopping bulk collection, our legislation would improve judicial review by the FISA Court and enhance public reporting on the use of a range of surveillance activities.  The bill would also require Inspector General reviews of the implementation of these authorities . . . .

Senator Leahy's bill doesn't include the new privacy advocate that has gotten so much attention.  That office, dubbed the Office of the Constitutional Advocate, is in Senator Wyden's S. 1551.

October 16, 2013 in Congressional Authority, Courts and Judging, Jurisdiction of Federal Courts, News, Separation of Powers | Permalink | Comments (0) | TrackBack (0)

Wednesday, October 9, 2013

Ninth Circuit Rejects Guantanamo Detainee's Claim of Constitutional Violation

The Ninth Circuit ruled this week in Hamad v. Gates that the Military Commissions Act of 2006 deprived federal courts of jurisdiction over a Guantanamo detainee's claim that his detention violated the Constitution.  

In so ruling, the Ninth Circuit joins the D.C. Circuit in holding that 28 U.S.C. Sec. 2241(e)(2) deprives federal courts of jurisdiction over these kinds of claims, even as the Supreme Court in Boumediene struck the habeas jurisdiction-stripping provision in 28 U.S.C. Sec. 2241(e)(1).

The MCA, 28 U.S.C. Sec. 2241(e), says:

(1) No court, justice, or judge shall have jurisdiction to hear or consider an application for 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.

(2) Except as provided in paragraphs (2) and (3) of section 1005(e) of the Detainee Treatment Act of 2005, 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 detained by the United States and 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 2241(e)(1) in Boumediene.  The question in Hamad is whether 2241(e)(2) survived.

The Ninth Circuit said yes, joining the D.C. Circuit.  The rulings mean that Guantanamo detainees are cut off from the federal courts in all but habeas cases (under 2241(e)(1)).

SDS

October 9, 2013 in Cases and Case Materials, Congressional Authority, Jurisdiction of Federal Courts, News | Permalink | Comments (0) | TrackBack (0)

Monday, October 7, 2013

Age Discrimination in the Supreme Court: Oral Argument in Madigan v. Levin

The facts of Madigan v. Levin argued today seem simple: Levin, an attorney working for the state of Illinois as an assistant state attorney was terminated in 2006 when he was 61 years old, being replaced by a younger attorney.  At least two other older attorneys were also terminated, replaced by younger attorneys.  

FromVanityFairWhether these facts, and the further facts to be determined, would substantiate a claim of age discrimination is the question to be decided on the merits.  But before any consideration of the merits, there is the thorny question of the grounding of the claim.  Can it be the Age Discrimination in Employment Act, ADEA, 29 U.S.C. §§ 621?  What about the Court's decision in Kimel v. Florida Board of Regents, holding that Congress had no power to abrogate a state's Eleventh Amendment immunity when it used its Fourteenth Amendment §5 power to pass ADEA?  And is Levin even an "employee" within the ADEA?  And what about GERA, the Government Employee Rights Act of 1991 (Title III of the Civil Rights Act of 1991), which has also run into abrogation of state immunity problems?   Which is why, perhaps, Mr.Levin, even after exhausting his administrative remedies with the EEOC, sought to bring a claim under the Equal Protection Clause, using the jurisdictional statute 42 USC §1983.   But the state argued that Levin's constitutional claims were precluded by the comprehensive scheme Congress had enacted to address age discrimination, the ADEA.

Affirming the district judge, the Seventh Circuit held that the ADEA did not bar a constitutional claim, with extensive analysis of the legislative history, but also reasoning in part that as a practical matter, this would mean that employees of state employers would be left without a federal damages claim because of the reasoning of Kimel. The Seveneth Circuit then ruled that the individual defendants did not enjoy qualified immunity, age discrimination being "clearly established" as a right under the Equal Protection Clause, with age classifications being scrutinized under the rational basis standard.  The Seventh Circuit's opinion seemed well-reasoned, but it conflicted with the decisions of the other circuits - - - Fourth, Fifth, Ninth, and Tenth - - - that had decided that ADEA precluded equal protection claims based on age.

But while the attorney for the state of Illinois, Michael Scordo, did have a chance to articulate his finely crafted opening issue statement, Justice Ginsburg asked the first question, and the complex case became even more complex:

Mr. Scodro, there's a preliminary question before we get to the question you presented, and that is: What authority did the Seventh Circuit have to deal with the question under the Age Discrimination Act? I mean, it was -- it went to the Seventh Circuit on interlocutory review.

The procedural problem - - - did the Seventh Circuit have jurisdiction and thus does the Supreme Court have jurisdiction - - - had been flagged by an amicus brief of Law Professors,  including Stephen Vladeck as counsel of record, who argued that

the Seventh Circuit lacked “pendent appellate jurisdiction” on an interlocutory qualified immunity appeal to decide the question on which certiorari was granted, i.e., whether the remedial scheme created by Congress in the Age Discrimination in Employment Act (ADEA), 29 U.S.C. §§ 621 et seq., displaces age-discrimination suits by state employees under the Equal Protection Clause and 42 U.S.C. § 1983.

As for the United States Supreme Court? The law professors brief argued:

To be sure, as this Court’s prior decisions attest, because the Seventh Circuit had jurisdiction over the qualified immunity issue, the Supreme Court still has the power to proceed to the merits notwithstanding the pendent jurisdictional defect below. But compelling reasons of prudence, practice, and policy all favor vacating the decision below and returning this case to the district court, rather than rewarding the Court of Appeals’ jurisdictional bootstrapping.

As Justice Scalia noted, most of the oral argument was taken up with these procedural matters - - - what he labeled the "other stuff" - - - with limited discussion of the merits.

But there was some discussion of the merits.  In a colloquy with Justices Alito and later Kagan, the problem with the Equal Protection Clause claim got some attention.  The attorney for Levin, Edward Theobald, was pressed on whether Levin could possibly prevail given the rational basis standard.  Here's a snippet:

JUSTICE ALITO: And what if the Illinois legislature passed a statute that said: Now, forget about the ADEA. There is no ADEA. There is no state anti-discrimination law involved here. All we are talking about is equal protection. And they passed a law that said: All attorneys working for the State of Illinois must retire at the age of 60, because everybody knows, you know, once a lawyer passes 60, there's nothing left.

MR. THEOBALD: We're all in trouble.

JUSTICE ALITO: Would that be -- would that survive a rational basis review?

MR. THEOBALD: I don't believe so.

Of course, the Justices would not be in trouble if Illinois passed such a law; they are not only federal employees, they have life tenure, a benefit that is not universally applauded.

And they also have the power not only to decide the case, but also to decide that they do not - - - or should not - - - have the power to do so.

[image from Vanity Fair, 1903, via]

 

October 7, 2013 in Congressional Authority, Courts and Judging, Equal Protection, Oral Argument Analysis, Supreme Court (US) | Permalink | Comments (2) | TrackBack (0)

Monday, September 30, 2013

Court Allows "Fast and Furious" Subpoena Case to Move Forward

Judge Amy Berman Jackson (D.D.C.) today denied AG Eric Holder's motion to dismiss a case brought against him by the House Oversight and Government Reform Committee seeking to enforce its subpoena for documents related to DOJ's infamous February 4, 2011, letter denying that gun-walking in the "fast and furious" program had taken place.  (The subpoena wasn't over the "fast and furious" program itself; instead, it was for any documents related to the government's February 4 denial.)  Our latest post on the case, with background and links to earlier posts, is here.

Judge Jackson ruled in Committee on Oversight v. Holder that the case is justiciable, and that there's no good reason for the courts to decline to hear it.  The ruling doesn't touch the merits.

The ruling means that the case will move forward on the merits question--whether executive privilege protects the subpoenaed documents--unless the parties settle.

Judge Jackson wrote that the case was a straightforward application of Committee on the Judiciary v. Miers:

And five years ago, another court in this District carefully considered and rejected the same arguments being advanced by the Attorney General here.  In a case involving a different Congress and a different President, [Miers], the court concluded in a persuasive opinion that it had jurisdiction to resolve a similar clash between the branches.

Op. at 4.

September 30, 2013 in Cases and Case Materials, Congressional Authority, Courts and Judging, Executive Privilege, Jurisdiction of Federal Courts, News, Opinion Analysis, Separation of Powers | Permalink | Comments (0) | TrackBack (0)

Justice Department to Sue North Carolina Over Vote Restrictions

AG Eric Holder announced today that the U.S. Department of Justice would file suit against North Carolina in federal court to stop its new restrictions on voting.  We previously posted on the ACLU suit against the state here.

The complaint alleges that North Carolina HB 589 reduces early voting days, eliminates same-day voter registration during early voting, prohibits the counting of provisional ballots cast outside a voter's precinct, and imposes a voter ID requirement--all in violation of Section 2 of the Voting Rights Act.  DOJ argues that the changes have both a discriminatory purpose and a discriminatory effect.  The Department also seeks "bail-in" under Section 3(c) of the VRA.

DOJ most recently sued Texas to stop its voter ID law and redistricting plans.  The Department sought bail-in relief in those cases, too.

The cases come in the wake of the Court's ruling this summer in Shelby County v. Holder striking Section 4(b) of the VRA, the coverage formula for the preclearance requirement.  By striking Section 4(b), the Court rendered Section 5 preclearance a dead letter, unless and until Congress can rewrite it in a way that would pass muster with this Court--that is, likely never.  Section 3(c) bail-in works very much like Section 5 preclearance, though.  If acourt orders bail-in, it will retain jurisdiction over the state "for such period as it may deem appropriate and during such period no voting qualification or prerequisite to voting or standard, practice, or procedure with respect to voting different from that in force or effect at the time the proceeding was commenced shall be enforced unless and until the court finds that such qualification, prerequisite, standard, practice, or procedure does not have the purpose and will not have the effect of denying or abridging the right to vote on account of race or color . . . ."

The North Carolina and Texas cases are sure to raise two new fronts in the assault on the Voting Rights Act: challenges to congressional authority to enact Section 3(c) bail-in, and challenges to congressional authority under Section 2 to ban state laws that have a discriminatory effect (even if not a discriminatory purpose).

September 30, 2013 in Cases and Case Materials, Congressional Authority, Elections and Voting, Federalism, Fifteenth Amendment, Fourteenth Amendment, Fundamental Rights, News | Permalink | Comments (1) | TrackBack (0)