Thursday, August 9, 2018
In a terse written Order in Grace v. Sessions, United States District Judge for the District of Columbia, Emmet Sullivan reiterated his oral order "requiring the Defendants to return “Carmen” and her daughter to the United States FORTHWITH" (emphasis in original). Judge Sullivan's Order recounted that at the emergency hearing on August 8, "Defendants stated that they would not consent to staying the removal past 11:59 pm Thursday August 9, 2018, but specifically represented to the Court that “Carmen” and her daughter would not be removed prior to that time." The judge therefore set a hearing for 1:00pm on Thursday, during which it was learned that Carmen and her daughter were being removed from the country by plane. The Judge's Order concluded:
HEREBY ORDERED that the Defendants shall return “Carmen” and her daughter to the United States FORTHWITH; and it is
FURTHER ORDERED that in the event that the Defendants do not fully comply with this Order, Defendants Attorney General Jefferson Sessions, III; Secretary of the Department of Homeland Security Kirstjen M. Nielsen; U.S. Citizenship and Immigration Service Director Lee Francis Cissna; and Executive Office of Immigration Review Director James McHenry, preferably accompanied by their attorneys, shall be ORDERED to appear in Court to SHOW CAUSE why they should not be held in CONTEMPT OF COURT; and it is
FURTHER ORDERED that the Defendants shall file a status report on the docket in this case by no later than 5:00 pm August 10, 2018, informing the Court of the Defendants’ compliance with this Order.
[emphasis in original].
The complaint in the case challenges expanded "expedited removal" for asylum seekers whose claims are based on gang violence or domestic violence, with statutory claims for relief augmented by separation of powers arguments and a constitutional claim of violation of due process.
Wednesday, August 8, 2018
The D.C. Circuit yesterday rejected a habeas claim by a long-time (17 years) Guantanamo detainee who argued that the basis for his detention has "unraveled" and that the conflict that originally authorized his detention has ended. In so ruling, the court affirmed that the 2001 AUMF, along with the 2012 National Defense Authorization Act, remain in force, strong as ever, and continue to authorize his detention.
The claimant, a Yemeni who, according to the government, trained with and fought alongside the Taliban, filed an earlier habeas petition in 2005. The courts rejected that petition, concluding that "the Government's account of Al-Alwi'd Taliban-related activities was supported by a preponderance of the evidence, thereby making Al-Alwi an enemy combatant who could lawfully be detained."
This time, however, he claimed that even if his earlier detention was authorized, the authority for his ongoing detention is stale. The court rejected that argument.
The court ruled first that the "[a]uthority to detain has not unraveled." It said that the AUMF retains its original force so long as "hostilities between the United States and the Taliban and al Qaeda continue." "Both [the AUMF and the National Defense Authorization Act] authorize detention until the end of hostilities. Although hostilities have been ongoing for a considerable amount of time, they have not ended."
The court ruled next that "[a]uthority to detain has not expired." The court said that "termination" is "a political act," and that it hasn't yet occurred. "The Executive Branch represents that armed hostilities between the United States forces and those entities persist."
The ruling underscores that the AUMF will remain in full force until the political branches say that hostilities have ended.
The Ninth Circuit ruled yesterday in Rodriguez v. Swartz that a case against a U.S. Border Patrol agent for shooting and killing a Mexican youth across the U.S.-Mexican border can go forward. The court denied qualified immunity for the agent and ruled that the plaintiff had a valid Bivens claim.
This case is yet another cross-border shooting case, different than Hernandez v. Mesa. Recall that the Court remanded that case for further proceedings on the Bivens question. The Fifth Circuit held that Bivens did not provide a remedy in that case, because the case raised a new Bivens context, and because "extending Bivens would interfere with the political branches' oversight of national security and foreign affairs"; "would flout Congress's consistent and explicit refusals to provide damage remedies for aliens injured abroad"; and "would create a remedy with uncertain limits."
The Ninth Circuit ruling thus splits with the Fifth Circuit.
Rodriguez arose when a Border Patrol agent shot and killed a Mexican youth across the border for no apparent reason whatsoever, and without knowing the youth's nationality. The youth's representatives sued under Bivens.
The Ninth Circuit first denied qualified immunity to the agent. The court said that the Fourth Amendment applies to this kind of situation, that it clearly prohibits this kind of "seizure," and that it was clearly established at the time that the agent couldn't shoot the youth. The court distinguished Verdugo-Urquidez, saying that the agent in this case "acted on American soil subject to American law."
The court went on to rule that Bivens provided a remedy. The court said that while this case indeed presented a new Bivens context, Rodriguez had no other adequate remedy, and there were no "special factors" counseling hesitation.
Judge M. Smith dissented, arguing that Bivens did not extend to this case, and that the court's ruling created a circuit split and disregarded Supreme Court law.
Monday, August 6, 2018
In his opinion in Caliste v. Cantrell, United States District Judge for the Eastern District of Louisiana Eldon Fallon declared the bail practices of Judge Cantrell, an Orleans Parish Criminal District Magistrate Judge, unconstitutional as violative of due process under the Fourteenth Amendment.
After disposing of questions of justiciability and absention, Judge Fallon considered the cash bail practices in which the parish judge would never inquire regarding defendants' ability to post bail or provide reasoning for a rejection of alternative conditions of release, and would tell "public defenders that he would hold them in contempt when they have attempted to argue for lower bond amounts or RORs for their clients.”
Judge Fallon found that the practices violated procedural due process, applying the well-settled balancing test of Matthews v. Eldridge (1976). Judge Fallon concluded "that in the context of hearings to determine pretrial detention Due Process requires:
1) an inquiry into the arrestee’s ability to pay, including notice of the importance of this issue and the ability to be heard on this issue;
2) consideration of alternative conditions of release, including findings on the record applying the clear and convincing standard and explaining why an arrestee does not qualify for alternative conditions of release; and
3) representative counsel.
Judge Fallon also found there was a substantive due process violation, analyzing it in a section entitled "conflict of interest." Judge Fallon relied in part on Caperton v. Massey (2009), noting that there need not be proof of "actual bias," but there should be an inquiry “whether, ‘under a realistic appraisal of psychological tendencies and human weakness,’ the interest ‘poses such a risk of actual bias or prejudgment that the practice must be forbidden if the guarantee of due process is to be adequately implemented.’” In the Orleans parish, the problem was that the Orleans judge not only set bail but also managed "the Judicial Expense Fund, a portion of which comes from fees levied on commercial surety bonds." Judge Fallon found this was a conflict of interest rising to a due process violation: "Judge Cantrell’s institutional incentives create a substantial and unconstitutional conflict of interest when he determines their ability to pay bail and sets the amount of that bail."
Thus, the federal court entered summary judgment in favor of the plaintiffs, declaring the cash bail practices of the Orleans parish judge unconstitutional.
United States District Judge Colleen Kollar-Kotelley has reaffirmed the injunction of the ban on transgender individuals in the military, first announced on Twitter by the President in Doe v. Trump in two opinions. Recall that in October, the judge issued a lengthy opinion and a preliminary injunction against the ban as likely to violate equal protection.
The case returned to Judge Kollar-Kotelley after an unsuccessful appeal and attempt to stay the preliminary injunction. The government moved to dismiss, essentially rearguing its contentions regarding standing.
In a 34 page opinion, the judge again rejected these arguments. But the government newly argued for dismissal and dissolution of the preliminary injunction because the 2018 "Mattis Implementation Plan" represents a “new policy” divorced and distinct from the President’s 2017 policy directives that were previously enjoined by this Court, and that the Mattis Implementation Plan does not harm the Plaintiffs in this case. However, the judge held that "whatever legal relevance the Mattis
Implementation Plan might have, it has not fundamentally changed the circumstances of this lawsuit such that Plaintiffs’ claims should be dismissed for lack of jurisdiction, or that the need for the Court’s preliminary injunction has dissipated." In evaluating the Mattis Implementation Plan, the judge stated:
the Mattis Implementation Plan in fact prohibits transgender military service—just as President Trump’s 2017 directives ordered. It is true that the plan takes a slightly less direct approach to accomplishing this goal than the President’s 2017 tweet and memorandum. Instead of expressly banning all “transgender individuals” from military service, the Mattis Implementation Plan works by absolutely disqualifying individuals who require or have undergone gender transition, generally disqualifying individuals with a history or diagnosis of gender dysphoria, and, to the extent that there are any individuals who identify as “transgender” but do not fall under the first two categories, only allowing them to serve “in their biological sex” (which means that openly transgender persons are generally not allowed to serve in conformance with their identity).
[emphasis in original]. In short, she concluded that "whatever legal relevance the Mattis Implementation Plan and associated documents might have, they are not sufficiently divorced from, or different than, the President’s 2017 directive."
However, in a separate and relatively brief opinion, she did grant the government's motion to dismiss Donald Trump as a defendant. The government moved to dismiss the president as a defendant and for a protective order regarding discovery. Judge Kollar-Kotelly concluded that
Through this lawsuit, Plaintiffs ask this Court to enjoin a policy that represents an official, non-ministerial act of the President, and declare that policy unlawful. Sound separation-of-power principles counsel the Court against granting these forms of relief against the President directly.
She noted that confrontation between the judicial and executive branch should be avoided whenever possible, but such confrontation
can be easily avoided here, because dismissing the President will have little or no substantive effect on this litigation. Plaintiffs argue that the acts of the President himself are central to this case, and the Court agrees. But dismissing the President as a Defendant does not mean that those acts will not be subject to judicial review. The Court can still review those acts and, if Plaintiffs are successful in proving that they are unconstitutional, Plaintiffs can still obtain all of the relief that they seek from the other Defendants.
Given that the President is no longer a defendant, the judge ruled the motion for a protective order regarding discovery was moot, but
the Court reiterates that dismissing the President as a party to this case does not mean that Plaintiffs are prevented from pursuing discovery related to the President. The Court understands that the parties dispute whether discovery related to the President which has been sought by Plaintiffs is precluded by the deliberative process or presidential communication privileges, and the Court makes no ruling on those disputes at this point.
While the plaintiffs had argued that dismissing the president was not warranted, Judge Kollar-Kotelly's dismissal has little bearing on the ultimate resolution of the case, a conclusion she reiterated several times. It also has little effect on the present status of the case; the accompanying order emphasized that "The injunction remains in force as it applies to all other Defendants" (italics in original).
Thursday, August 2, 2018
In an op-ed in the Los Angeles Times Yale Law Professors David Singh Grewal, Amy Kapczynski and Issa Kohler-Hausmann argue that there is no liberal "case for Kavanaugh," the President's nominee for Supreme Court Justice.
Trump’s nominations for the high court will have grave, long-lasting effects on the nation. Let the debate over Kavanaugh’s confirmation focus on the issues, not on the pedigree or manners of a judge who, as a justice, will almost surely work to undermine decades of settled judicial precedent in a way no liberal should be willing to condone.
Moreover, they speculate that liberal voices supporting the nominee may simply be currying favor:
Perhaps liberals praise Kavanaugh in order to gain favor with him. If confirmed, he will be in a position of great power in the legal world for decades to come, able to influence whose views are cited in judicial opinions and whose clerkship candidates are hired.
Meanwhile, it was reported that 74 protesters objecting to the nominee were arrested at the Hart Senate Office Building for crowding the halls.
Check out Lisa Blatt's piece at Politico, I'm a Liberal Feminist Lawyer. Here's Why Democrats Should Support Judge Kavanaugh. Blatt says that "[w]hat happened to Merrick Garland was a disgrace." Still,
unless the Democrats want to stand on the principle of an eye-for-an eye--and I don't think they should--folks should stop pretending that Kavanaugh or his record is the issue. He is supremely qualified. Although this fact is distressing, Republicans control both the White House and Senate. In comparable circumstances, when President Barack Obama was in office, our party appointed two Justices to the Supreme Court.
Monday, July 16, 2018
Check out Jonathan Adler's piece at the NYT, Will Kavanaugh Curb Sloppy White House Deregulation? Adler argues that Judge Kavanaugh "has expressed concerns about the Chevron doctrine," and "is not one to give [agencies] a pass." Still, Adler argues that "Judge Kavanaugh's concern about overbroad applications of Chevron should not be misinterpreted as hostility to regulation."
Thursday, July 12, 2018
Check out Geoff Stone's piece at The Huffington Post, It's Now Up To Senate Moderates To Save The Supreme Court.
If Trump's nominee is confirmed on an essentially party-line vote in the Senate, especially in the aftermath of Republicans' unprincipled refusal to confirm Merrick Garland in order to bring about precisely this situation, this will mark the end of even the pretense of a nonpartisan, nonpolitical Supreme Court. It will undermine the credibility and integrity of the court and its decisions for decades to come. . . .
So, what should the principled, moderate and wise Republican and Democratic members of the Senate to whom this essay is addressed do? They should refuse to confirm this nominee or any successor nominee unless a majority of both Republican and Democrats on the Senate Judiciary Committee supports confirmation.
Tuesday, July 10, 2018
There is obviously much to read and discuss regarding the President's nomination of D.C. Circuit Judge Brett Kavanaugh but two pieces from the Washington Post today stand out.
First, Aaron Blake considers Kavanaugh's comment, made immediately after thanking the president for the nomination, “No president has ever consulted more widely, or talked with more people from more backgrounds, to seek input about a Supreme Court nomination." Banks characterizes this statement as "thoroughly strange and quite possibly bogus." As Banks notes, it is a "completely unprovable assertion — and one that would require a basically unheard-of level of research to substantiate," although perhaps it is also "difficult, if not impossible, to disprove." It seems, Banks concludes, a "thoroughly inauspicious way to begin your application to the nation's highest court, where you will be deciding the merits of the country's most important legal and factual claims."
Second, law professor Nancy Leong in her op-ed argues essentially that men need to enter the conversation surrounding abortion in a more honest manner: "Mathematically speaking, millions of men have such [abortion] stories. The one-in-four women who have had an abortion did not get pregnant on their own." Leong references the amicus brief by women attorneys regarding abortions as an effective communication with (soon to be former) Justice Kennedy and implies that a similar brief by men is long overdue. "For decades, men have benefited from the availability of safe and legal abortion. It’s time for men to start taking threats to reproductive freedom personally."
Friday, July 6, 2018
In a brief opinion in Cigar Association of America v. United States Food and Drug Administration, Judge Amit Mehta has enjoined the FDA's warning requirements regarding cigars under 21 CFR 1143.5, such as the statement "Cigar smoking can cause lung cancer and heart disease" pending appeal.
In a previous opinion in May, Judge Mehta had sustained the FDA rule against a First Amendment challenge (as well as other challenges), finding that "Because the warning statements are factual and uncontroversial disclosures aimed at informing the public about the risks of cigar and pipe tobacco use and at correcting the public’s misperceptions about such products’ use, and because the [FDA] Rule does not impose these requirements in an “unjustified or unduly burdensome” manner, the Rule is constitutional" under Zauderer v. Office of Disciplinary Counsel of Supreme Court of Ohio (1985).
Nevertheless, Judge Mehta's conclusion regarding the "likelihood of success on the merits" prong of the preliminary injunction analysis was that the Cigar Association raised "serious legal questions going to the merits, such as
whether Defendants’ asserted governmental interest in imposing the health warnings regime is a substantial one; the precise burden the government bears under Zaudererto compel purely factual and uncontroversial government speech; and whether a disclosure of the size and appearance mandated by the warnings requirements is so “unduly burdensome” as to chill protected speech. These are difficult legal questions, and the D.C. Circuit might well disagree with this court’s resolution of them.
Most interestingly, however, Judge Mehta relies on the Supreme Court's June decision in National Institute of Family and Life Advocates v. Becerra holding California's FACT Act requiring of disclosures by "pregnancy crisis centers" violated the First Amendment. Judge Mehta states that Becerra "only adds to the substantiality of the issues Plaintiffs intend to raise on appeal," even as Judge Mehta writes
This court does not concur that Becerra requires an outcome different than the one the court reached— Becerradiffers from this case in multiple, material ways—but that disagreement does not diminish the merits of Plaintiffs’ motion. Becerra makes clear that Plaintiffs’ appeal raises serious legal questions.
Yet while an important aspect of the Court's opinion in Becerra as we discussed was that abortion was not "uncontroversial," it does seem as if the cigar association cannot make the same claim as to the links between tobacco and cancer. Or can they?
A case to watch as it goes to the D.C. Court of Appeals in the continuing saga of First Amendment challenges to government mandated warnings and disclosures by industries as in the 2014 DC Circuit en banc American Meat Institute v. U.S. Department of Agriculture and panel opinions in National Association of Manufacturers v. SEC (conflict minerals) and R.J. Reynolds Tobacco Co. v. FDA (cigarette labeling).
Saturday, June 30, 2018
The Ninth Circuit ruled this week that environmental non-profits lacked standing to sue Ex-Im Bank for its failure to follow statutorily prescribed procedures before authorizing loans to private corporations for two liquid natural gas projects near the Great Barrier Reef in Australia.
The case is a cautionary tale for environmental groups (or others) suing for statutory procedural violations: Develop the record.
The ruling means that the case is dismissed.
The case, Center for Biological Diversity v. Export-Import Bank of the U.S., arose when Ex-Im Bank approved funding for two liquid natural gas projects near the Great Barrier Reef. Environmental organizations sued, arguing that Ex-Im Bank failed to consult as required by the Endangered Species Act and failed to take into account environmental impacts as required by the National Historical Preservation Act.
The Ninth Circuit dismissed the case for lack of standing. The court said that the plaintiffs didn't sufficiently connect the Bank's procedural failures to the harm to the Reef, especially given that the projects had begun by the time the Bank provided funding, and therefore failed to show causation and redressability. For one, the plaintiffs couldn't show "what action could be taken by the Ex-Im Bank to alter the course of the Projects, if the Bank were to perform the procedures" under the Acts. For another, the plaintiffs "have not established that the Ex-Im Bank was a necessary party without whom the Projects would not have been realized." Both problems resulted from the plaintiffs' failure to develop the record--the funding contracts themselves (to show what Ex-Im might do if the procedures were followed) and evidence of alternative project funding (to show the significance of Ex-Im's loans on the projects).
At the same time, the court held that the case was not moot. That's because the record didn't show whether Ex-Im continued to have some leverage over the borrowers, even though the project is now complete and at least some of the loans are fully repaid.
With all the musings about what the post-Kennedy Court will do, Garrett Epps argues at The Atlantic that we already know--because we already have it.
In the 2016-2017 term, conservatives won 33 percent of . . . ideological casts. Between 2005 and 2016, the highest "conservative victory" percentage was 73 percent.
In 2017-2018, the "conservative victory" percentage was 100 percent.
The only times the four liberals picked off a win was in the "mixed cases," in which they won over a justice like Chief Justice Roberts rather than "swing vote" Kennedy. In other words, the tilt to the right has already occurred. And that tilt coincides with a fundamental, historic, and irreversible change in the court itself and its role in American life.
Friday, June 29, 2018
Judge T.S. Ellis III (E.D. Va.) earlier this week rejected a motion by Paul Manafort to dismiss Special Counsel Robert Mueller's superseding indictment for bank fraud and tax charges.
Recall that Judge Berman Jackson (D.D.C.) earlier rejected a similar move by Manafort. The D.C. court's earlier ruling came in Manafort's civil challenge to Mueller's authority. In contrast, Judge Ellis's ruling this week came as a defense in Manafort's criminal case.
Judge Ellis ruled that the superseding indictment fell squarely within DOJ special-counsel regulations and Rod Rosenstein's memo authorizing Mueller's investigation and prosecution.
Judge Ellis also ruled that Mueller's appointment was valid, and that he had legal authority to issue the indictment. (This analysis came in response to Manafort's argument that Manafort had standing to challenge Mueller's indictment, notwithstanding the fact that DOJ regs specifically do not "create any rights . . . by any person . . . in any matter, civil, criminal, or administrative," based on the theory that Mueller lacks legal authority.)
The Special Counsel's legal authority is not grounded in the procedural regulations at issue here, but in the Constitution and in the statutes that vest the authority to conduct criminal litigation in the Attorney General and authorize the Attorney General to delegate these functions when necessary. And because the Special Counsel was appointed in a manner consistent with both these sources of legal authority, there is no basis for dismissal of the Superseding Indictment.
Along the way, Judge Ellis gave something of a (often highly critical) tutorial in the constitutional issues--Appointments Clause and separation of powers--involved in independent counsel and special counsel authorities, offering some scathing comments about the design of the special counsel office (though not about Mueller in particular). Here's just a flavor:
The Constitution's system of checks and balances, reflected to some extent in the regulations at issue, are designed to ensure that no single individual or branch of government has plenary or absolute power. The appointment of special prosecutors has the potential to disrupt these checks and balances, and to inject a level of toxic partisanship into the investigation of matters of public importance. This case is a reminder that ultimately, our system of checks and balances and limitations on each branch's powers, although exquisitely designed, ultimately works only if people of virtue, sensitivity, and courage, not affected by the winds of public opinion, choose to work within the confines of the Law. Let us hope that the people in charge of this prosecution, including the Special Counsel and the Assistant Attorney General, are such people. Although this case will continue, those involved should be sensitive to the danger unleashed when political disagreements are transformed into partisan prosecutions.
Thursday, June 28, 2018
The Seventh Circuit earlier this week narrowed the nationwide injunction against AG Sessions's crackdown on Chicago's sanctuary-cities practices so that it now only applies "as to the imposition of the conditions on the City of Chicago," and not the "geographic areas in the United States beyond the City of Chicago pending the disposition of the case by the en banc court."
The ruling means that the injunction now applies only to Chicago, and not nationwide.
The ruling gave no reasons for restricting the injunction. Recall that on Tuesday, in the travel ban case, the Court declined to address the issue of whether a lower court can issue a nationwide injunction. (It didn't have to rule on this, because it upheld the travel ban.)
Tuesday, June 26, 2018
In its opinion in Trump v. Hawaii, a closely divided United States Supreme Court found that the so-called "travel ban" or "Muslim ban" did not violate the Establishment Clause.
Recall that the Court granted certiorari to the Ninth Circuit's opinion in Hawai'i v. Trump regarding Presidential Proclamation 9645, entitled “Enhancing Vetting Capabilities and Processes for Detecting Attempted Entry Into the United States by Terrorists or Other Public-Safety Threats”of September 24, 2017, also known as E.O 3, or Travel Ban 3.0, or Muslim Ban 3.0. The Ninth Circuit, affirming a district judge, found Travel Ban 3.0 unlawful under the Immigration and Nationality Act. The Court also took certiorari on the Establishment Clause issue. There were also constitutional issues involving standing.
The Court's majority opinion, authored by Chief Justice Roberts, spends substantial space on the statutory issue, ultimately concluding that the Proclamation is within the President's authority under 8 U.S.C. §1182, a provision of the Immigration and Nationality Act.
On the constitutional issues, Chief Justice Roberts writing for the majority finds there is standing, but concludes that the Proclamation does not violate the Establishment Clause. The Court rehearses some of the President's statements regarding a "Muslim ban," but — in a passage which will be oft-quoted — states that
the issue before us is not whether to denounce the statements. It is instead the significance of those statements in reviewing a Presidential directive, neutral on its face, addressing a matter within the core of executive responsibility. In doing so, we must consider not only the statements of a particular President, but also the authority of the Presidency itself.
In making this assessment, the majority, finds the statements essentially insignificant. The Court applies the rational basis standard derived from Kleindienst v. Mandel (1972) which the majority stated applies "across different contexts and constitutional claims" when considering Executive authority. Thus, according to the majority, as long as the Executive act "can reasonably be understood to result from a justification independent of unconstitutional grounds" it will be upheld. The majority briefly considered its equal protection cases involving animus (interestingly, the majority does not discuss McCreary County v. ACLU of Kentucky (2005), an Establishment Clause case involving intent), but rejected the equal protection cases' applicability:
The Proclamation does not fit this pattern. It cannot be said that it is impossible to “discern a relationship to legitimate state interests” or that the policy is “inexplicable by anything but animus.”
Instead, the majority states that the Proclamation results from a worldwide review process (echoing the opening words of the Solicitor General at oral argument), and three "additional features" including removal of three nations since the first ban, significant exceptions, and a waiver process.
Noteworthy in the majority is also its disavowal and essential overruling of Korematsu v. United States (1944), one of the so-called Japanese internment cases, and states that it is "wholly inapt to liken that morally repugnant order [in Korematsu] to a facially neutral policy denying certain foreign nationals the privilege of admission."
Four Justices dissented. The dissenting opinion by Breyer, joined by Kagan, argues that the Proclamation's "elaborate system of exemptions and waivers" points to the conclusion that "religious animus" played a significant role in the Proclamation. Breyer recommended that the issue be remanded for further factfinding, but on balance, the evidence of antireligious bias was now sufficient to find the Proclamation unconstitutional.
The dissenting opinion by Sotomayor, joined by Ginsburg, devotes itself entirely to the Establishment Clause issue and concludes that the Proclamation, which "masquerades behind a facade of national-security concerns," is nevertheless motivated by anti-Muslim bias and "runs afoul of the Establishment Clause's guarantee of religious neutrality." Sotomyor's opinion critiques the majority for providing a "highly abridged account" of the President's public statements regarding Muslims that does not "tell even half the story," and provides almost seven pages of statements, tweets, and retweets, and also notes that "despite several opportunities to do so, President Trump has never disavowed any of his prior statements about Islam."
In addition to comparing this situation with Church of Lukumi Babalu Aye, Inc. v. Hialeah (1993, in which the Court found unconstitutional the city's prohibition of animal sacrifice as motivated by bias against the Santeria religion, and Korematsu v. United States (1944), as discussed above, Sotomayor's dissenting opinion stated:
Just weeks ago, the Court rendered its decision in Masterpiece Cakeshop, which applied the bed rock principles of religious neutrality and tolerance in considering a First Amendment challenge to government action. (“The Constitution ‘commits government itself to religious tolerance, and upon even slight suspicion that proposals for state inter vention stem from animosity to religion or distrust of its practices, all officials must pause to remember their own high duty to the Constitution and to the rights it secures’” (quoting Lukumi); Masterpiece(KAGAN, J., concurring) (“[S]tate actors cannot show hostility to religious views; rather, they must give those views ‘neutral and respectful consideration’ ”). Those principles should apply equally here. In both instances, the question is whether a government actor exhibited tolerance and neutrality in reaching a decision that affects individuals’ fundamental religious freedom. But unlike in Masterpiece, where a state civil rights commission was found to have acted without “the neutrality that the Free Exercise Clause requires,” the government actors in this case will not be held accountable for breaching the First Amendment’s guarantee of religious neutrality and tolerance. Unlike in Masterpiece, where the majority considered the state commissioners’ statements about religion to be persuasive evidence of unconstitutional government action, the majority here completely sets aside the President’s charged statements about Muslims as irrelevant. That holding erodes the foundational principles of religious tolerance that the Court elsewhere has so emphatically protected, and it tells members of minority religions in our country “‘that they are outsiders, not full members of the political community.’ ”
The majority did not cite Masterpiece. Neither did Kennedy's brief concurring opinion which closed with what seemed to an attempt at an admonition:
An anxious world must know that our Government remains committed always to the liberties the Constitution seeks to preserve and protect, so that freedom extends outward, and lasts.
Monday, June 25, 2018
The Court, without opinion, in Arlene's Flowers v. Washington, granted the petition for writ of certiorari, vacated the judgment of the Washington Supreme Court, and remanded the case for consideration in light of Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Comm'n.
Recall that in 2017 the Washington Supreme Court unanimously upheld the Washington Law Against Discrimination including sexual orientation as applied to a business that refused to provide wedding flowers for a same-sex wedding. Artlene's Flowers had several First Amendment claims and on the Free Exercise claim, the court rejected Arlene's Flowers' argument that the Washington ant-discrimination law was not a neutral one of general applicability and should therefore warrant strict scrutiny. Instead, the court applied the rational basis standard of Employment Division, Department of Human Resources of Oregon v. Smith, which the Washington anti-discrimination easily passed.
Shortly after the Court's decision in Masterpiece Cakeshop, in which the Court found that the Colorado Civil Rights Commission’s treatment of the case had "some elements of a clear and impermissible hostility toward the sincere religious beliefs that motivated his [the cakemaker's] objection," the florist in Arlene's Flowers, Baronnelle Stutzman, filed a Supplemental Brief seeking "at least" remand and alleging:
in ruling against Barronelle, the state trial court—at the urging of Washington’s attorney general—compared Barronelle to a racist “owner of a 7-Eleven store” who had “a policy” of refusing “to serve any black” customers. Pet. App. 107a–109a & 108a n.16 (emphasis added). The state, in short, has treated Barronelle with neither tolerance nor respect.
Thus the Washington Supreme Court is now tasked with determining whether there was hostility towards the Arlene's Flowers woner's religion, and if so, applying strict scrutiny.
Relatedly, in a challenge to Arizona's non-discrimination statute by a company, Brush & Nib, that sells "pre-fabricated and design artwork for home décor, weddings, and special events," an Arizona Court of Appeals found that there would be no Free Exercise claim in its opinion in Brush & Nib Studio v. City of Phoenix. Yet because Brush & Nib was a pre-enforcement challenge, the emphasis was on the statute rather than on Brush & Nib's actions.
In its 5-4 opinion in Abbott v. Perez, regarding the constitutionality under the Equal Protection Clause and the validity under the Voting Rights Act of the redistricting plan enacted by the Texas Legislature in 2013, the Court's majority decision by Justice Alito concluded that only one district in the redistricting plan was unlawful.
Both the majority opinion (joined by the Chief Justice, Kennedy, Thomas, and Gorusch) and the dissenting opinion by Justice Sotomayor (joined by Ginsburg, Breyer, and Kagan) first spent substantial effort on the jurisdictional issue which had also preoccupied the Court during the oral arguments. The jurisdictional question involves the status of the three judge court order and whether it is actually a reviewable order with the majority concluding it was reviewable and the dissent arguing it was not.
On the merits of the Equal Protection Clause issue Justice Alito's opinion for the Court faulted the three judge court's detailed decision for committing a "fundamental legal error" when it concluded the Texas legislature engaged on intentional racial discrimination violating the Fourteenth Amendment. For the majority, the three judge court did not recognize that when "a challenger claims that a state law was enacted with discriminatory intent, the burden of proof lies with the challenger, not the State," a standard with "special significance" in redistricting cases in which there is a "presumption of legislative good faith." This standard, the Court emphasized, does not change when there has been past racial discrimination but remains only one of the factors of showing intent under Village of Arlington Heights v. Metro. Housing Development Corp. (1997). Instead, the majority finds that Texas did have a legitimate intent, that of bringing the litigation about the redistricting to an end.
The dissenting opinion on the Equal Protection Clause issue criticizes the majority for selectively misreading (and misquoting) the three judge court opinion, arguing that the three judge court did not remove the burden from the challengers and did rigorously apply the Arlington Heights factors (contending that the majority did not). The "historical background" factor is an evidentiary source of intent which the majority recognized but did not credit, essentially substituting its own judgment for the three judge court.
On the Voting Rights Act (VRA) issue, which is limited to §2 given that the United States Supreme Court held §5 unconstitutional in Shelby County v. Holder, decided five years ago, the majority discussed the factors from Thornburg v. Gingles (1986), and essentially found that only one district — HD90 —was an impermissible racial gerrymander. A brief concurring opinion by Thomas, joined by Gorsuch, argued that §2 should not apply to redistricting. Again, the dissent argued that on the other districts the majority was essentially substituting its own judgment for that of the three judge court rather than reviewing the factual findings only for clear error.
The difference in the rhetorical approaches of the majority and the dissent is striking. In Alito's opinion for the Court, federal the application of the Equal Protection Clause in redistricting is "complicated," equal protection and the VRA pull in opposite directions, and in "technical terms" the Court has assumed that complying with the VRA is a compelling state interest. In Sotomayor's opinion for the dissenting Justices, the "Equal Protection Clause of the Fourteenth Amendment and §2 of the Voting Rights Act secure for all voters in our country, regardless of race, the right to equal participation in our political processes," a "fundamental right" which courts should remain vigilant in protecting including "curbing States’ efforts to undermine the ability of minority voters to meaningfully exercise that right."
Friday, June 22, 2018
The Supreme Court ruled today in Ortiz v. United States that a military officer could serve on both the military Court of Criminal Appeals (as an inferior officer) and the Court of Military Commission Review (as a principal officer) without violating the Appointments Clause. The ruling also says that the dual appointment didn't violate federal statutory law.
The ruling leaves in place a conviction upheld by a CCA panel that included an officer who also had an appointment on the CMCR (which reviews military commission decisions--different than court martial rulings--out of Guantanamo Bay).
But before the Court said anything about the dual appointment, it said quite a bit about its jurisdiction to hear the case. Justice Kagan, joined by Chief Justice Roberts and Justices Kennedy, Thomas, Ginsburg, Breyer, and Sotomayor, wrote that the Court (the top of the Article III branch) had jurisdiction over the appeal from the military courts (located in Article I), because "the judicial character and constitutional pedigree of the court-martial system enable this Court, in exercising appellate jurisdiction, to review the decisions of the court sitting at its apex." The Court thus rejected arguments by amicus Professor Aditya Bamzai that the Court lacked jurisdiction over military-court appeals because military courts aren't Article III courts. (The argument is substantially more complicated than that; check out the opinion, and Prof. Bamzai's brief.) Justice Thomas concurred, basing his conclusion that military courts exercise a judicial function (and therefore that the Court can exercise appellate jurisdiction over them) on his originalist argument that adjudicating "private" rights is a core judicial function. Justice Alito, joined by Justice Gorsuch, dissented, arguing that military courts can't exercise judicial power, because that would violate the separation of powers:
Today's decision is unprecedented, and it flatly violates the unambiguous text of the Constitution. Although the arguments in the various opinions issued today may seem complex, the ultimate issue is really quite simple. The Court and the concurrence say that Congress may confer part of the judicial power of the United States on an entity that is indisputably part of the Executive Branch. But Article III of the Constitution vests "[t]he Judicial Power of the United States"--every single drop of it--in "one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish" in compliance with that Article. A decision more contrary to the plain words of the Constitution is not easy to recall.
On the merits, the Court held that the dual appointment didn't violate the Appointments Clause. The reason is easy: That Clause simply doesn't forbid dual service, even when one office is an "inferior office" and the other is a "principal office," especially so long as the two offices have nothing to do with each other:
The problem, [petitioner] suggests, is that the other (inferior officer) judges on the CCA will be "unduly influenced by" Judge Mitchell's principal-officer status on the CMCR.
But that argument stretches too far. This Court has never read the Appointments Clause to impose rules about dual service, separate and distinct from methods of appointment. Nor has it ever recognized principles of "incongruity" or "incompatibility" to test the permissibility of holding two offices. As Ortiz [the petitioner] himself acknowledges, he can "cite no authority holding that the Appointments Clause prohibits this sort of simultaneous service."
And if we were ever to apply the Clause to dual office-holding, we would not start here. Ortiz tells no plausible story about how Judge Mitchell's service on the CMCR would result in "undue influence" on his CCA colleagues. The CMCR does not review the CCA's decisions (or vice versa); indeed, the two courts do not have any overlapping jurisdiction. They are parts of separate judicial systems, adjudicating different kinds of charges against different kinds of defendants. We cannot imagine that anyone on the CCA acceded to Judge Mitchell's views because he also sat on the CMCR . . . . The CAAF put the point well: "When Colonel Mitchell sits as a CCA judge, he is no different from any other CCA judge." So there is no violation of the Appointments Clause.
The Court also ruled that the dual appointment didn't violate federal statutory law.
June 22, 2018 in Appointment and Removal Powers, Cases and Case Materials, Courts and Judging, Executive Authority, Jurisdiction of Federal Courts, News, Opinion Analysis, Separation of Powers | Permalink | Comments (0)
Wednesday, June 20, 2018
In the complaint in M.G.U. v. Kirstjen Nielsen, three adult plaintiffs challenge the parent-child separation policy implemented by Homeland Security for persons seeking asylum. Recall that in early June, a federal judge ruled in Li v. ICE that the constitutional claims in similar complaint survived a motion to dismiss. The complaint in M.G.U. comes after increased publicity and outcry regarding the practice, with President Trump issuing an Executive Order changing the policy. However, the EO does not mention family reuinification and it is as yet unclear whether that will occur for parents and children who have already been separated (or whether the children will now be treated as "unaccompanied minors.")
The complaint alleges that that the government actors have violated the plaintiffs Fifth Amendment Due Process rights in two ways. First, the complaint alleges that it is a violation of due process to inflict punishment on civil detainees. In this regard, the separation is alleged to be punishment and includes this allegation:
The employees and agents who Defendants deploy to interact with parents and children in immigration detention facilities sadistically tease and taunt parents and children with the prospect of separation, and do so using words and tones indicating that Defendants’ employees and agents enjoy the pain and suffering that the very idea of separation causes to parents and children.
Second, the complaint alleges that the separation violates the due process right of family integrity, similar to the judge's finding in Li v. ICE.
Most likely this is only the beginning of challenges to the parent-child separation practice.