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)

Tuesday, September 24, 2013

Sixth Circuit Divides on Clear-Statement Application to Civil RICO

The en banc Sixth Circuit divided sharply today over whether Michigan workers could sue their employer, claims manager, and employer's doctor under federal civil RICO for engaging in a fraudulent scheme involving the mail to deny the workers state workers' compensation benefits.

The case, Jackson v. Sedgwick Claims Management Services, Inc., arose when employees of Coca-Cola applied for, and were denied, workers' compensation benefits under Michigan law.  The employees sued  Coca-Cola, Coke's claims management service, and a cooperating doctor under federal civil RICO for colluding to deny them their benefits.  The defendants moved to dismiss, arguing that the claim wasn't cognizable.

The en banc Sixth Circuit agreed.  The court held that the plaintiffs failed to allege that they were "injured in [their] business or property" as required by RICO for civil damages.

But then the court went on to say that this conclusion "is confirmed by" the clear-statement principle in Gregory v. Ashcroft.  The majority said that under the clear-statement principle Congress must make clear when it intends federal law to displace state law in an area traditionally regulated by the states.  Here, the majority held that RICO doesn't have a sufficiently clear statement of intent to displace state workers' compensation law, and so the clear-statement principle confirms the court's conclusion that the plaintiffs can't use federal civil RICO to attack the state workers' compensation scheme.

Judge Moore dissented, joined by four other judges.  Judge Moore argued that "the majority makes the erroneous assumption that the clear-statement rule would even apply in this context."  She argued that the majority's approach is inconsistent with the Supreme Court's clear instruction to read RICO broadly.

September 24, 2013 in Cases and Case Materials, Congressional Authority, Federalism, News, Opinion Analysis, Preemption | Permalink | Comments (0) | TrackBack (0)

Friday, September 20, 2013

Groups Sue to Stop Texas Voter ID

The Brennan Center filed suit this week in federal court on behalf the Texas State Conference of the NAACP and the Mexican American Legislative Caucus of the Texas House of Representatives challenging SB 14, Texas's strict voter ID law.  The Brennan Center's resource page on the case is here.

The suit this week comes soon after the United States Department of Justice filed its own suit against Texas to stop SB 14.

Recall that the Texas AG announced that the state would move to enforce SB 14 soon after the Supreme Court struck the coverage formula for the preclearance requirement in the Voting Rights Act this summer in Shelby County v. Holder.

The suit filed this week, like the DOJ suit before it, also seeks "bail-in" under Section 3(c) of the Voting Rights Act--that is, an order by the federal court for continued monitoring of the state that would operate very much like preclearance under Section 5 would have operated against a covered state like Texas (until the Court struck the coverage formula, leaving Section 5 a dead letter, in Shelby County).  

Section 3(c) bail-in may be the next litigation target (after opponents succeeded in challenging the coverage formula for preclearance in Shelby County) for states like Texas facing VRA suits.  Texas's responses to these suits will tell.

September 20, 2013 in Cases and Case Materials, Congressional Authority, Elections and Voting, Equal Protection, Federalism, Fifteenth Amendment, Fourteenth Amendment, News, Reconstruction Era Amendments | Permalink | Comments (0) | TrackBack (0)

Thursday, September 19, 2013

Third Circuit Upholds Federal Prohibition on State-Licensed Gambling

The Third Circuit panel this week in NCAA v. Governor of New Jersey upheld the federal law prohibiting states from licensing sports gambling against a challenge that it exceeded congressional authority under the Commerce Clause, impermissibly commandeered the states, and violated the principle of equal sovereignty among the states. 

The case was a significant test of congressional authority after NFIB v. Sebelius (upholding the ACA's individual mandate under congressional taxing authority, but ruling that it exceeded congressional Commerce Clause authority) and a significant test of the principle of equal sovereignty among the states after Shelby County v. Holder (ruling that the preclearance formula in the Voting Rights Act violated the principle of equal sovereignty among the states and exceeded congressional authority under the Fifteenth Amendment).

The Third Circuit panel rejected both arguments--and the commandeering argument, too--and upheld the federal prohibition.  (The court also ruled that the plaintiffs, sports leagues, had standing to challenge the New Jersey law--in part because the law was directed at them (even if indirectly) and because they would have suffered a reputational injury by association with gambling.)

In 1992, Congress enacted the Professional and Amateur Sports Protection Act, or PASPA, to prohibit sports gambling conducted by, or authorized under the law of, any state or governmental entity and to stop the spread of state-sponsored sports gambling.  PASPA's key provision says that neither states nor persons may
sponsor, operate, advertise, or promote . . . a lottery, sweepstakes, or other betting, gambling, or wagering scheme based directly or indirectly (through the use of geographical references or otherwise), on one or more competitive games in which amateur or professional athletes participate, or are intended to participate, or on one or more performances of such athletes in such games.
28 U.S.C. Sec. 3702.  The PASPA also prohibits states from licensing or authorizing "by law or compact" any such gambling activities.  28 U.S.C. Sec. 3702(1), 3701.
The PASPA contains three relevant exceptions--a clause that exempts Nevada, a clause that permitted New Jersey to license sports wagering in Atlantic City had it chosen to do so within one year of PASPA's enactment, and a provision that allows states like Delaware and Oregon to continue the limited "sports lotteries" that they had previously conducted.  
New Jersey did not take advantage of its exemption under the PASPA, but New Jersey voters later passed a referendum to amend the state constitution to permit the state legislature to "authorize by law wagering . . . on the results of any professional, college, or amateur sport or athletic event."  N.J. Const. Art. IV, Sec. VII, Para. 2(D), (F).  The legislature then enacted the "Sports Wagering Law," which permits state authorities to license sports gambling in casinos and racetracks and to license casinos to operate "sports pools."
The plaintiffs, sports leagues, sued, arguing that the New Jersey law was preempted by PASPA.  New Jersey argued that PASPA exceeded congressional authority and violated the anti-commandeering rule and equal state sovereignty principle.
The court held that "it is self-evident that the activity PASPA targets, state-licensed wagering on sports, may be regulated consisted with the Commerce Clause."  The court said that wagering and national sports are both economic activities, and that professional and amateur sports, and wagering on them, substantially affect interstate commerce.  The court rejected the argument that the PASPA improperly reaches purely intrastate activity--a friendly bet between family members, for example--because the PASPA doesn't reach that activity, and even if it did, under Wickard v. Filburn and Gonzales v. Raich, Congress could have concluded that in the aggregate they have a substantial effect on interstate commerce.
The court also held that the PASPA doesn't impermissibly commandeer the states.  Instead, it said, the PASPA is a proper exercise of congressional authority and properly preempts state licensing laws under the Supremacy Clause.  The said that New Jersey's argument amounted to saying that impermissible anti-commandeering may occur even when all a federal law does is supercede state law via the Supremacy Clause--a position that the Supreme Court has never accepted.  The court distinguished New York and Printz by saying that the PASPA doesn't require the states to do anything or coerce the states at all; instead, it validly prohibits them from licensing gambling.
Finally, the court held that PASPA doesn't violate the principle of equal sovereignty of the states.  The court distinguished Shelby County and said that the equal sovereignty principle operates differently when Congress regulates "in an area 'the Framers of the Constitution intended the States to keep for themselves . . . the power to regulate elections.'"  Op. at 96-97 (quoting Shelby County).  The court also said that PASPA was designed to stop the spread of state-sanctioned sports gambling, and so regulating states in which sports gambling already existed would have been irrational.  And in any event the remedy for an equal sovereignty violation should be to strike the provisions in PASPA that exempt certain states, not to strike PASPA's principal provision.
The court also held that the plaintiffs in the case, sports leagues, had standing.
Judge Vanaskie dissented from the court's holding on commandeering, arguing that "PASPA prohibits states from authorizing sports gambling and thereby directs how states must treat such activity.  Indeed . . . PASPA essentially gives states the choice of allowing totally unregulated betting on sporting events or prohibiting all such gambling. . . . [T]his congressional directive violates the principles of federalism [in New York and Printz]."  Dissent at 1.

September 19, 2013 in Cases and Case Materials, Commerce Clause, Congressional Authority, Federalism, News, Opinion Analysis | Permalink | Comments (0) | TrackBack (0)

Wednesday, September 18, 2013

Sixth Circuit Rejects Secular For-Profit Company's Claim Challenging ACA Under RFRA

The Sixth Circuit's succinct and unanimous opinion in Autocam Corporation v. Sebelius sided with the Third Circuit's July opinion in Conestoga Wood Specialties and against the en banc Tenth Circuit's June majority opinion in Hobby Lobby on the issue of whether a for-profit secular business has a free exercise of religion right (as a person) under RFRA, the Religious Freedom Restoration Act.  There is some intertwining of the First Amendment free exercise of religion claim, but the Autocam decision rests on RFRA.

Autocam, like Conestoga Wood and Hobby Lobby, and its owners, argue that the regulations under the Patient Protection and Affordable Care Act of 2010 (“ACA”) requiring employers cover contraceptive methods for their employees - - - often called the contraceptive mandate - - - infringes on their religious rights.  Autocam, like the others, is a large corporation.  And a quick look at Autocam's "mission" on its website indicates no expression of a religious purpose, but only providing superior products. 

Autocam

 

The Sixth Circuit interestingly found that while Autocam as a corporation had standing to assert its claims, the Kennedy family as members (owners?) of a "closely held corporation" did not have shareholder standing:  "Generally, shareholders of a corporation cannot bring claims intended to redress injuries to a corporation, even when the corporation is closely held."  The Kennedys argued that this rule should not apply in RFRA claims, but the court found nothing in RFRA to support their view.  Further, the court rejected their claims they were individually harmed or that a "pass through" theory could be applied.

As to the merits of the corporation's assertion of personhood under RFRA, the court found that RFRA did not support such an interpretation, and moreover, "Reading the term “person” in the manner suggested by Autocam would lead to a significant expansion of the scope of the rights the Free Exercise Clause"  protected prior to Employment Division v.  Smith and the enactment of RFRA. 

By affirming the denial of the preliminary injunction by the district judge, the Sixth Circuit panel has entered the fray of a circuit split on the issue.   With its unamious opinion, it does tilt the "count" toward a nonrecognition of religious rights of secular for proft corporations (recall that the en banc Tenth Circuit opinion was closely divided and the Third Circuit panel opinion was also split; additionally earlier this month a senior district judge in the Tenth Circuit applied applied Hobby Lobby to a for-profit nursing home chain.)  However, the Sixth Circuit opinion adds little new to the analysis of this issue increasingly ripe for Supreme Court review.

September 18, 2013 in Congressional Authority, Courts and Judging, Family, First Amendment, Free Exercise Clause, Gender, Medical Decisions, Opinion Analysis, Sexuality, Standing, Supreme Court (US) | Permalink | Comments (0) | TrackBack (0)

Wednesday, September 11, 2013

District Judge: For Profit Nursing Home Chains Have Free Exercise of Religion Rights

Relying on the Tenth Circuit's decision in Hobby Lobby v. Sebelius, Senior Judge Wiley Daniel enjoined the enforcement of the ACA's preventative health mandate regarding certain contraceptive methods for employees in his opinion in Briscoe v. Sebelius.

As the judge states, Briscoe is an Evangelical Christian and owns Continuum Health Partnerships, Inc., Continuum Health Management, LLC, and Mountain States Health Properties, LLC. Briscoe’s secular, for-profit companies manage and operate senior care assisted living centers and skilled nursing facilities. Briscoe is the sole member and manager of Continuum Health Management, LLC and Mountain States Health Properties, LLC. Briscoe is also the lone shareholder of Continuum Health Partnerships, Inc.

Given the precedent of Hobby Lobby, the district judge spent little analysis on the underlying issues, but did analyze the requirements for a preliminary injunction.   This included finding that the 200 persons employed by the plaintiff companies were much less than the "millions of others" persons exempted under other provisions.

 

September 11, 2013 in Congressional Authority, First Amendment, Religion, Reproductive Rights | Permalink | Comments (0) | TrackBack (0)

Friday, September 6, 2013

The Syria Resolution's Last Whereas

Garrett Epps writes over at The Atlantic that the Senate's Syria Resolution contains a huge give-away to the President: congressional recognition of inherent executive authority to use the military to defend the national security interests of the United States--independent of any AUMF.

The give-away comes in the last "Whereas" of the Senate's Syria Resolution.  It reads:

Whereas the President has authority under the Constitution to use force in order to defend the national security interests of the United States . . . .

Epps writes,

The only problem is it's not true, and it represents a two-century high-water mark in claims of executive power.  Having been consulted by the president, Congress is poised to respond by throwing back at him not only the current decision but sweeping new powers he didn't have before.

Lawfare has some terrific analysis on the Senate resolution and related issues, including Jack Goldsmith's analysis of that final "Whereas" (quoted in Epps's piece).

SDS

September 6, 2013 in Congressional Authority, Executive Authority, News, Separation of Powers, War Powers | Permalink | Comments (0) | TrackBack (0)

Friday, August 30, 2013

Groups Challenge North Carolina Voter Restrictions

The ACLU filed suit earlier this month in the Middle District of North Carolina challenging the state's new restrictions on voting under the Fourteenth Amendment and the Voting Rights Act.  Recall that North Carolina, a previously partially covered jurisdiction under the Voting Rights Act, moved quickly after the Supreme Court struck the preclearance coverage formula in Shelby County v. Holder to introduce certain restrictions on the vote, knowing that the full state was free of the preclearance requirement.  The ACLU's suit, League of Women Voters of North Carolina v. North Carolina, challenges certain provisions in the state's  Voter Information Verification Act, or VIVA

In particular, the case challenges restrictions on early voting in the state, restrictions on same-day registration, and restrictions on out-of-precinct voting in the state.

The plaintiffs seek declaratory and injunctive relief, and bail-in under Section 3 of the VRA.  Bail-in allows a federal court to order continued monitoring of a state's proposed changes to its election laws upon a showing that the state's violations of the Fourteenth and Fifteenth Amendments justify such monitoring--much like Section 5 preclearance, except that the coverage formula isn't fixed.  

After Shelby County struck the coverage formula in Section 4(b), and thus rendered Section 5 preclearance a dead letter, Section 3(c) bail-in is the only way that the VRA might authorize continuing federal preclearance of a state's proposed changes to its election laws.  The ACLU sought Section 3(c) relief here, and the Department of Justice sought Section 3(c) relief in its recently filed case against Texas.

If the Texas AG's press release is any indication of a litigation position, Section 3(c) is the next likely provision in the VRA to go on the chopping block under a challenge that it exceeds congressional authority under the Fourteenth Amendment.

August 30, 2013 in Cases and Case Materials, Congressional Authority, Elections and Voting, Federalism, Fourteenth Amendment, News | Permalink | Comments (0) | TrackBack (0)

ACLU, Government File Motions in NSA Call-Tracking Case

The ACLU earlier this week filed a motion for a preliminary injunction in ACLU v. Clapper, the case in the Southern District of New York challenging the NSA's mass collection of Americans' telephone data.  We most recently posted on the NSA program, in EFFs suit against it, here.

The ACLU argues that it has a substantial likelihood of success on its Fourth and First Amendment challenges to the NSA program.  The group also argues that the government exceeded its statutory authority under Section 215 of the Patriot Act in collecting telephony metadata.

At the same time, the government filed a motion to dismiss.  The government claims that the ACLU lacks standing (under Clapper v. Amnesty International), that Congress impliedly precluded judicial review of the NSA program, that the NSA program is authorized by Section 215 of the Patriot Act, and that the program doesn't violate the Fourth and First Amendments.

Standing will certainly be an important threshold issue in the case, especially after the Court's ruling in Amnesty International.  In that case, the Court ruled that a group of attorneys and organizations didn't have standing to challenge the FISA Amendments Act, which allowed the Attorney General and the DNI to acquire foreign intelligence information by jointly authorizing the surveillance of individuals who are not "United States persons" and are reasonably believed to be outside the United States.  The Court said that the plaintiffs' alleged injury-in-fact was too speculative--that the plaintiffs couldn't show that they'd be targets of surveillance under this FISA authority, that the FISA court would necessarily approve the surveillance of them, or that the government would succeed in its surveillance of them. 

Here, in contrast, the ACLU alleged in its complaint that its telephone communications were and are monitored, that this monitoring would reveal privileged and sensitive information between the ACLU and its clients, and that the monitoring will likely have a chilling effect on the group's communications with clients.  In other words, the ACLU tried to navigate the Amnesty International barrier and show with more determinacy that it has suffered a sufficient injury in fact.

August 30, 2013 in Cases and Case Materials, Congressional Authority, Courts and Judging, First Amendment, Fourth Amendment, Jurisdiction of Federal Courts, News, Standing | Permalink | Comments (0) | TrackBack (0)