Tuesday, April 17, 2018

SCOTUS Finds INA Deportation Provision for "Crime of Violence" Unconstitutionally Vague

In its opinion in Sessions v. Dimaya, the United States Supreme Court held that a portion of the definition of "crime of violence" in 18 U.S.C. §1, as applied in the deportation scheme of the Immigration and Nationality Act,  see 8 U. S. C. §§1227(a)(2)(A)(iii), 1229b(a)(3), (b)(1)(C), is unconstitutionally vague.

The Court's somewhat fractured opinion concluded that the residual clause, §16(b), which defines a “crime of violence” as “any other offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense" is unconstitutionally vague.

Justice Kagan's opinion was joined in its entirety by Justices Ginsburg, Breyer, and Sotomayor. Justice Gorsuch joined only Parts I, III, IV–B, and V, thus making these sections the opinion of the Court.

The Court's opinion relied on Johnson v. United States (2015), authored by Justice Scalia, in which the Court found a similar residual clause in the Armed Career Criminal Act (ACCA), defining “violent felony” as any felony that “otherwise involves conduct that presents a serious potential risk of physical injury to another,” 18 U. S. C. §924(e)(2)(B) unconstitutionally “void for vagueness” under the Fifth Amendment’s Due Process Clause.

The Court in Dimaya ruled that

§16(b) has the same “[t]wo features” that “conspire[d] to make [ACCA’s residual clause] unconstitutionally vague" {in Johnson}.  It too “requires a court to picture the kind of conduct that the crime involves in ‘the ordinary case,’ and to judge whether that abstraction presents” some not-well-specified-yet-sufficiently- large degree of risk. The result is that §16(b) produces, just as ACCA’s residual clause did, “more unpredictability and arbitrariness than the Due Process Clause tolerates.”

The United States and the dissenting opinions attempted to distinguish the INA provision from the ACCA provision in several ways. Kagan, writing for the Court in Part IV that "each turns out to be the proverbial distinction without a difference." 

34033716420_bd72e5fd56_zGiven Gorsuch's joining with the perceived more liberal-leaning Justices on the Court, his concurring opinion is sure to attract attention.  Gorsuch's substantial opinion (18 textual pages to Kagan's 25 page opinion for the Court and plurality), leans heavily on the foundations of due process, beginning

Vague laws invite arbitrary power. Before the Revolu­tion, the crime of treason in English law was so capa­ciously construed that the mere expression of disfavored opinions could invite transportation or death.

More importantly, Gorsuch disavows any notion that the context of immigration deportation merits any special consideration and that the Court's holding is narrow, stressing that the problem with the statute is the procedural one of failing to provide notice (and standards for judges) rather than the substantive choice by Congress.

Taken together with Johnson, the holding in Dimaya means that statutes must be much more precise when defining a "crime of violence" or risk being held unconstitutionally vague.

[image: caricature of Justice Neil Gorsuch by Donkey Hotey via]

April 17, 2018 in Courts and Judging, Criminal Procedure, Due Process (Substantive), Fifth Amendment, Interpretation, Opinion Analysis, Procedural Due Process, Recent Cases, Supreme Court (US) | Permalink | Comments (0)

Saturday, April 14, 2018

District Judge Holds Transgender Military Ban Subject to Strict Scrutiny

In her opinion and Order in Karnoski v. Trump, United States District Judge Marsha Pechman of the Western District of Washington has reaffirmed her previous preliminary injunction (December 2017) on the basis of the plaintiffs' likelihood to succeed on the merits of their Equal Protection, Due Process, and First Amendment claims in their challenge to the President's ban on transgender troops in the military, and further decided that the military ban is subject to strict scrutiny. (Recall that previous to Judge Pechman's preliminary injunction, United States District Judge for the District of Columbia Colleen Kollar-Kotelly in Doe v. Trump partially enjoined the president's actions and United States District Judge Marvin Garvis of the District of Maryland in Stone v. Trump issued a preliminary injunction against the United States military's ban on transgender troops and resources for "sex-reassignment" medical procedures).

The government's motion for summary judgment and to dissolve the preliminary injunction relied in large part on the President's new policy promulgated in March 2018. As Judge Pechman phrased it, the 2018 Presidential Memorandum

purports to "revoke" the 2017 Memorandum and “any other directive [he] may have made with respect to military service by transgender individuals,” and directs the Secretaries of Defense and Homeland Security to “exercise their authority to implement any appropriate policies concerning military service by transgender individuals.”

Nypl.digitalcollections.a20151f8-d3cf-5c25-e040-e00a18066189.001.wRejecting the government defendants' argument that the controversy was now moot, Judge Pechman concluded that the 2018 Memorandum and Implementation Plan "do not substantively rescind or revoke the Ban, but instead threaten the very same violations that caused it and other courts to enjoin the Ban in the first place." The judge acknowledged that there were a few differences, but was not persuaded by the government defendants' argument that the 2018 policy did not now mandate a “categorical” prohibition on service by openly transgender people.

Similarly, Judge Pechman found that the individual plaintiffs, the organizational plaintiffs, and the plaintiff State of Washington continued to have standing.

Most crucial in Judge Pechman's order is her decision that transgender people constitute a suspect class and thus the ban will be subject to strict scrutiny. (Recall that in the previous preliminary injunction, Judge Pechman ruled that transgender people were at a minimum a quasi-suspect class). In this opinion, she considers four factors:

  • whether the class has been “[a]s a historical matter . . . subjected to discrimination,”
  • whether the class has a defining characteristic that “frequently bears [a] relation to ability to perform or contribute to society,
  • whether the class exhibits “obvious, immutable, or distinguishing characteristics that define [it] as a discrete group,"
  • whether the class is “a minority or politically powerless.”

After a succinct analysis, she concludes that suspect class status is warranted and because the "Ban specifically targets one of the most vulnerable groups in our society," it  "must satisfy strict scrutiny if it is to survive."

However, Judge Pechman did not decide on the level of deference the government defendants should be accorded. Instead, she concluded that

On the present record, the Court cannot determine whether the DoD’s deliberative process—including the timing and thoroughness of its study and the soundness of the medical and other evidence it relied upon—is of the type to which Courts typically should defer.

However, she did agree with the government defendants that President Trump was not subject to injunctive relief, but did remain as a defendant for the purpose of declaratory relief.

Thus, Judge Pechman directed the parties to "proceed with discovery and prepare for trial on the issues of whether, and to what extent, deference is owed to the Ban and whether the Ban violates equal protection, substantive due process, and the First Amendment."

[image, Revolutionary War era soldier, NYPL, via]

 

April 14, 2018 in Courts and Judging, Current Affairs, Due Process (Substantive), Equal Protection, Executive Authority, Fifth Amendment, First Amendment, Gender, Mootness, Opinion Analysis, Sexuality, Standing | Permalink | Comments (0)

Wednesday, April 11, 2018

District Court Says No Standing to Sue President for Ethics Disclosure

Judge Colleen Kollar-Kotelly (D.D.C.) ruled yesterday that an attorney appearing pro se lacked standing to sue President Trump for alleged deficiencies in his financial disclosure report that he was required to file as a candidate. The ruling ends this challenge.

The case, Lovitky v. Trump, arose when attorney Jeffrey Lovitky obtained a copy of then-candidate Trump's financial disclosure report from the Office of Government Ethics and discovered what he believed to be deficiencies in the reporting. Lovitky sued, arguing that the report included President Trump's personal debts and business debts, and that this "commingl[ing]" of personal and non-personal liabilities "mak[es] it impossible to identify which of the liabilities listed on the financial disclosure report were the liabilities of the President, in violation of [federal law]." Lovitky sought mandamus relief that would "direct[] the President to amend his financial disclosure report . . . for the purpose of specifically identifying any debts he owed during the [relevant] reporting period." Lovitky also sought declaratory relief.

The court ruled that Lovitky lacked standing to sue, because his requested relief wouldn't redress his claimed injuries. (The court didn't address whether he had a sufficient injury for standing purposes, because he lacked redressability.) As to mandamus, the court surveyed circuit law allowing mandamus against the president as to a ministerial duty, but, quoting the D.C. Circuit, noted that "[i]t is not entirely clear . . . whether, and to what extent, these decisions remain good law after [the Supreme Court's plurality opinion in Franklin v. Massachusetts]." Ultimately, the court said that because of this ambiguity it "would hesitate to issue mandamus even if Defendant's duty to specifically disclose personal liabilities were ministerial, but because the Court has found that it is a discretionary duty, the Court cannot do so."

As to declaratory relief, the court noted that it, too, wasn't obviously available against the president post Franklin. Regardless, the court said that because mandamus wasn't available, and because the Declaratory Judgment Act doesn't create an independent basis for jurisdiction, declaratory relief had no jurisdictional hook, and the court therefore lacked jurisdiction.

April 11, 2018 in Cases and Case Materials, Courts and Judging, Jurisdiction of Federal Courts, News, Opinion Analysis, Separation of Powers | Permalink | Comments (0)

Thursday, March 29, 2018

District Court Says No Standing to Sue U.S. Government for Actions of Israelis

Judge Randolph D. Moss (D.D.C.) ruled in Siegel v. U.S. Dep't of Treasury that plaintiffs lacked standing to sue the U.S. government for anti-Palestinian actions of Israelis. The court rejected the plaintiffs' theory that U.S. aid to Israel caused their harm, and that judicial relief would redress it. The ruling means that the case is dismissed.

The plaintiffs in the case were U.S. taxpayers and two individuals who claimed that Israeli settlers took their property with the support of the Israeli military. They alleged that U.S. aid to Israel contributed to Israeli actions that were detrimental to Palestinians. The government moved to dismiss, arguing that the plaintiffs lacked standing; the district court agreed.

As to the taxpayers, the court said their "harm" was too diffuse to support standing. As to the two displaced individuals, the court said that they alleged a sufficient harm, but that they didn't sufficiently allege that U.S. aid to Israel caused their harm, or that judicial relief would redress it. The court said the two individual plaintiffs' "chain of reasoning is too remote and too speculative for several reasons." In short,

Plaintiffs ultimately ask the court to "pile conjecture on conjecture" and to reduce the complex decisions surrounding Israeli activity in the territory at issue to a single determinative variable. As this Court has previously explained, "[s]uch 'unadorned speculation as to the existence of a relationship between the challenged government action and the third-party conduct will not suffice to invoke the federal judicial power.'"

March 29, 2018 in Cases and Case Materials, Courts and Judging, Jurisdiction of Federal Courts, News, Opinion Analysis, Standing | Permalink | Comments (0)

Wednesday, March 28, 2018

District Court Says Maryland, D.C. Have Standing in Emoluments Case Against Trump

Judge Peter J. Messitte (D. Md.) ruled today that Maryland and D.C. have standing to sue President Trump for violations of the Domestic and Foreign Emoluments Clauses. At the same time, Judge Messitte said that the plaintiffs lacked standing to sue with regard to Trump properties other than the Trump International Hotel in D.C.

The ruling says nothing about the merits and only means that the case can move forward, beyond this preliminary stage. Recall that a district judge ruled the other way in CREW's Emoluments Clause case against President Trump.

The case involves Maryland's and D.C.'s challenge to payments that President Trump receives as owner of his world-wide properties. The plaintiffs argue that these payments violate the Domestic and Foreign Emoluments Clauses. The President moved to dismiss the case based on lack of standing. Today the district court denied that motion.

The court ruled that the plaintiffs sufficiently alleged injuries-in-fact to their quasi-sovereign, proprietary, and parens patriae interests. As to their quasi-sovereign interest, the court said that other states' use of the Trump International Hotel on official business "rather clearly suggests that Maryland and the District of Columbia may very well feel themselves obliged, i.e., coerced, to patronize the Hotel in order to help them obtain federal favors." As to proprietary interests, the court said that "the President's ownership interest in the Hotel has had an almost certainly will continue to have an unlawful effect on competition, allowing an inference of impending (if not already occurring) injury to Plaintiffs' proprietary interests" in their own properties. Finally, as to the plaintiffs' parens patriae interest, the court said that "[i]t can hardly be gainsaid that a large number of Maryland and District of Columbia residents are being affected and will continue to be affected when foreign and state governments choose to stay, host events, or dine at the Hotel rather than at comparable Maryland or District of Columbia establishments, in whole or in substantial part simply because of the President's association with it."

The court also held that the plaintiffs sufficiently pleaded causation and redressability, and that the plaintiffs fell within the "zone of interests" of the Emoluments Clauses and that the case was not a nonjusticiable political question.

The court, citing a string of Supreme Court precedent, said that the plaintiffs' request for injunctive and declaratory relief against the President didn't violate the separation of powers.

But the court limited the case to a challenge based on the President's interest in the Trump International Hotel in D.C. (and not based on other Trump properties around the country or around the world). The court did not foreclose challenges based on those other properties in other cases, but said only that Maryland and D.C. had failed sufficiently to plead standing against Trump-owned properties outside D.C.

March 28, 2018 in Cases and Case Materials, Courts and Judging, Executive Authority, Jurisdiction of Federal Courts, News, Opinion Analysis, Separation of Powers, Standing | Permalink | Comments (0)

SCOTUS Hears Oral Arguments in Challenge to Maryland's Partisan Gerrymandering

In oral arguments in Benisek v. Lamone, the United States Supreme Court again confronted the the constitutionality of gerrymandering on the basis of political party. Recall that the Court heard arguments earlier in this Term in Gill v. Whitford involving the state of Wisconsin and centering on the Equal Protection Clause challenge. In Benisek, involving Maryland, recall that a divided three judge court denied the motion for preliminary injunction, but with Fourth Circuit Judge Paul Niemeyer arguing that the redistricting of Maryland's Sixth District diluted the votes of Republicans in violation of the First Amendment.

The Benisek argument before the Supreme Court did center the First Amendment, but equal protection doctrine did surface in the context of comparing racial gerrymandering which is analyzed under the Equal Protection Clause. Arguing for Maryland, Steve Sullivan sought to distinguish the two doctrines, with Justice Kagan responding:

JUSTICE KAGAN:  But we would be looking at the same things.  We would be looking at the same kind of direct evidence, the same kind of statements.  We would be looking at the same circumstantial evidence that has to do with where the lines were drawn and how they were drawn.  So it's -- it's all the same kind of evidence, isn't it?

Sullivan sought to distinguish the two doctrines and stated that while there may be similar types of evidence, the Court had not applied "the First Amendment retaliation rubric to that analysis," as the challengers suggested. However, Chief Justice Roberts offered another comparison:

CHIEF JUSTICE ROBERTS: Well, one difference between -- one difference between the race and partisanship is that we've always recognized that a certain degree of partisanship is acceptable.  We've never recognized that a certain degree of racial discrimination is acceptable.

2048px-Maryland_regions_map
The earliest moments of the oral argument offered a possible procedural escape hatch. The three judge court had denied the preliminary injunction and the possibility that any remedy could occur before the 2018 election seemed unlikely.  Moreover, the Justices questioned Michael Kimberly, attorney for the plaintiffs-challengers, regarding the lateness of the challenge, with Chief Justice Roberts asking about the elections that have been held in 2012, 2014, and 2016 before the challenge - - - relevant to the preliminary injunction factor of irreparable harm.

Justice Breyer offered a strategy for determining whether there are manageable standards and if so, what the standard should be.  (Recall that Justice Breyer outlined a several-step possible standard in the oral argument in Gill v. Whitford).  Justice Breyer noted that there are three cases - - - Wisconsin (Gill v. Whitford); Maryland (Benisek); and "the one we are holding, I think, is North Carolina" - - - with different variations. He began by asking the attorney for the challengers what he thought of reargument for the three cases:

JUSTICE BREYER:  * * * * What would you think of taking the three cases and setting them for reargument on the question of standard and there we'd have all three variations in front of us and we would enable people who have an interest in this subject generally to file briefs, and we'd see them all together and they could attack each other's standards or they could support each other's standards or they could attack any standard?  But there we'd have right in front of us the possibilities as -- as -- as thought through by lawyers and others who have an interest in this subject.

****
Winslow_Homer_-_Blackboard_(1877)I raise it because I want to think if there's some harm in doing that that I haven't thought of.  Is there some reason - would it be harmful to somebody? Because I do see an advantage.  You could have a blackboard and have everyone's
 theory on it, and then you'd have the pros and cons and then you'd be able to look at them all and then you'd be able see perhaps different ones for different variations and, you know, that's -- maybe there are different parts of gerrymandering that rises in different circumstances, dah-dah-dah. You see the point.

Later, in a colloquy with the attorney for Maryland, Justice Breyer again surfaced his proposal:

That's why I was thinking you've got to get all these standards lined up together, you know, and you have to have people criticizing each one back and forth and see if any of them really will work or some work in some cases and some work in other cases and it depends on the type you have.I -- I mean, that isn't squarely addressed by the lawyers because they're focused on their one case, et cetera.

Will there be a reargument?  It's difficult to tell.  But if there is, one might expect more than one brief that outlines the possible standards, with their advantages, disadvantages, and possible results in different cases, suitable for a "blackboard."

[image: Winslow Homer, Blackboard, 1877, via

March 28, 2018 in Association, Courts and Judging, Elections and Voting, Equal Protection, First Amendment, Fourteenth Amendment, Oral Argument Analysis, Recent Cases, Supreme Court (US) | Permalink | Comments (0)

Tuesday, March 20, 2018

New York Judge: Trump Not Immune From Defamation Suit by Summer Zervos

In her opinion in Zervos v. Trump, New York County Supreme Court Justice Jennifer Schecter ruled that the lawsuit for defamation by Summer Zervos against now-President Trump could proceed, denying a motion to dismiss or to stay by Trump based on his presidential status.

Recall that Summer Zervos filed the law suit a few days before Trump was inaugurated. Recall also that one of the major issues was whether or not a sitting president was amenable to suit in state court: In other words, did the rule in the United States Supreme Court's unanimous 1997 decision of Clinton v. Jones holding that then-President Clinton was subject to suit in federal court extend to state court?

Justice Schecter's first paragraph answers the question without hesitation, beginning with a citation to Clinton v. Jones and stating that the case left open the question of whether "concerns of federalism and comity compel a different conclusion for suits brought in state court," but adding "they do not." Her analysis is relatively succinct, beginning with a simple statement: "No one is above the law" and concluding that "In the end, there is absolutely no authority for dismissing or staying a civil action related purely to unofficial conduct because defendant is the President of the United States."

Justice Schecter also denied the motion to dismiss for failure to state a claim and thus discussed the defamation claim which obliquely raises First Amendment issues. (The first 8 pages of the 19 page opinion detail the allegations of the complaint.) The motion to dismiss had essentially argued that Mr. Trump's statements were mere hyperbole. Justice Schecter disagreed:

Defendant--the only person other than plaintiff who knows what happened between the two of them--repeatedly accused plaintiff of dishonesty not just in his opinion but as a matter of fact. He not only averred that plaintiff told "phony stories" and issued statements that were "totally false" and "fiction," he insisted that the events "never happened" and that the allegations were "100% false [and] made up.”

A reader or listener, cognizant that defendant knows exactly what transpired, could reasonably believe what defendant's statements convey: that plaintiff is contemptible because she "fabricated" events for personal gain. . . . . Defendant used "specific, easily understood language to communicate" that plaintiff lied to further her interests . . .  His statements can be proven true or false, as they pertain to whether plaintiff made up allegations to pursue her own agenda.  Most importantly, in their context, defendant's repeated statements--which were not made through op-ed pieces or letters to the editor but rather were delivered in speeches, debates and through Twitter, a preferred means of communication often used by defendant- -cannot be characterized simply as opinion, heated rhetoric, or hyperbole. That defendant's statements about plaintiff's veracity were made while he was campaigning to become President of the United States, does not make them any less actionable. . . .  

 Thus, it seems that the lawsuit against the President, now joined by a declaratory judgment suit by Stormy Daniels which we discussed here and since removed to federal, will proceed apace. Assuming, of course, that the President's lawyers do not attempt an interlocutory appeal.

4096px-Hans_Makart_-_Allegory_of_the_Law_and_Truth_of_Representation_-_Google_Art_Project

image: Hans Makart, Allegory of the Law and Truth of Representation, circa 1881 via

 

March 20, 2018 in Courts and Judging, Executive Privilege, Federalism, First Amendment, Gender, Opinion Analysis, Sexuality | Permalink | Comments (0)

Tuesday, March 13, 2018

Eighth Circuit Says No First Amendment Right to Qualifications of Execution Team Medical Members

The Eighth Circuit today rejected a common-law and First Amendment claim to information relating to the professional qualifications of two members of a Missouri execution team. The ruling means that this information will stay under seal.

The case arose during the course of an omnibus Eighth Amendment challenge to Missouri's execution protocol. Larry Flynt successfully intervened in that litigation and sought information from depositions and other documents relating to the professional qualifications of two medical members of the execution team, which the court refers to only as "M2" and "M3." Flynt argued that common law and the First Amendment compelled disclosure. The district court disagreed, and the Eighth Circuit affirmed.

As to Flynt's common-law claim, the court ruled that the district court didn't abuse its discretion in concluding that "[t]he personal and professional safety of one or more members of the execution team, as well as the interest of the State in carrying out its executions, were sufficiently in jeopardy to overcome the common-law right of public access to the records."

As to the First Amendment claim, the court, drawing on circuit law, said that there was no "historical tradition of accessibility" of this kind of information, and that release of the information wouldn't play any "role for public access in the functioning of the judicial process," because "it would effectively eviscerate the State's ability to carry out executions by jeopardizing its ability to have medical professionals on the execution team."

Finally, the court ruled that the district court didn't err in denying Flynt's motion to review the state's in camera briefing on the issue of release. The court said that Flynt didn't object in a timely manner, and that in any event in camera review was the best way to accomplish the district court's mandate to consider whether redaction was possibly a less restrictive means (than sealing in the entirety) of protecting the information." The court noted,

At the bottom line, this dispute is about the identity of medical members of the execution team. Flynt's stated rationale for wanting this information--to check the professional credentials of these members--is in direct and perilous conflict with the State's superior rationale of protecting the identity of these parties. The district court thus did not abuse its discretion in electing to review the supplemental briefing in camera, and denying Flynt's subsequent request to review it.

March 13, 2018 in Cases and Case Materials, Courts and Judging, First Amendment, News, Opinion Analysis | Permalink | Comments (0)

Monday, March 12, 2018

Tenth Circuit Rejects First, Second Amendment Claims of Detained Open-Carry Gun Owner

The Tenth Circuit last week ruled that officers enjoyed qualified immunity against an open-carrying-plaintiff's claims that they detained him in violation of the Second Amendment and prevented him from recording their actions in violation of the First Amendment.

While the ruling goes only to qualified immunity, it underscores that there's no clearly established right to open carry under the Second Amendment, and no clearly established right of a detainee to record police officers in public. More generally, the ruling also illustrates just how stingy qualified immunity can be in protecting officers from constitutional tort claims.

The case, Sandberg v. Englewood, Colorado, arose when officers responded to a 911 call in which a caller reported "some form of workplace violence" after observing Westin Sandberg openly carrying his 9-millimeter Ruger on the streets of Englewood. The officers detained Sandberg and determined that there was  no basis for the "workplace violence" allegation. But they continued to detain him--for four hours total--while they determined whether they could charge him with anything else. Finally, the officers wrote a summons for disorderly conduct. (Colorado's disorderly conduct statute says: "A person commits disorderly conduct if he or she intentionally, knowingly, or recklessly . . . displays a deadly weapon . . . .") They also took his gun, holster, bullets, and magazine. Four months later, the prosecutor dropped the charge, and, a month after that, returned Sandberg's property to him.

Sandberg sued, alleging violations of his First, Second, and Fourth Amendment rights, and gun-rights under the Colorado Constitution.

The Tenth Circuit rejected the federal constitutional claims, holding that the officers and prosecutor enjoyed qualified immunity. As to Sandberg's Second Amendment claim, the court said that there was no clearly established right to carry a gun in public. The court said that Justice Thomas's dissent to a denial of cert. in Peruta v. California and the Seventh Circuit ruling in Moore v. Madigan weren't enough, given that Justice Thomas's dissent carries no legal weight, and that the Seventh Circuit is the only circuit to hold that the Second Amendment encompasses a right to carry in public.

As to Sandberg's First Amendment claim, the court said that while some other circuits have held that the First Amendment protects the act of recording police officers' public conduct, they either post-dated the events in this case or involved a third-party recording the police (and not, as here, the detainee himself filming the police). Because there's no case-law on all fours, the court ruled that the law wasn't clearly established, and that the officers therefore enjoyed qualified immunity.

Lacking federal question jurisdiction, the court sent Sandberg's Colorado Constitutional claim back to the district court with instructions to dismiss.

While the case isn't (directly) a ruling on the merits, it does illustrate just how hard it can be to succeed on a constitutional tort claim against officers' qualified immunity. The qualified immunity doctrine allows courts to look first (and only) at whether a right is "clearly established" (without ever actually engaging the right itself). Moreover, in judging the "clearly established" question, the doctrine practically requires circuit precedent, or precedent from a majority of sister circuits, on all fours with the rights claim in the particular case. Because this is so hard to show--especially in cases involving relatively new rights claims, as here, which, because of their newness, simply haven't been litigated a lot--there's a weighty thumb on the scale in favor of qualified immunity, and against civil rights plaintiffs.

March 12, 2018 in Cases and Case Materials, Courts and Judging, First Amendment, News, Opinion Analysis, Second Amendment, Speech | Permalink | Comments (0)

Friday, February 16, 2018

Sixth Circuit Cites Spokeo: No Standing for Congress-Created Procedural Harm

The Sixth Circuit ruled today that plaintiffs lacked standing to sue a law firm for sending a letter without a disclosure that it was a "communication . . . from a debt collector" in violation of the federal Fair Debt Collection Practices Act.

The ruling is the latest application of the Supreme Court's 2016 ruling in Spokeo that a plaintiff has to show an actual harm for Article III standing purposes, even if Congress purports to create a harm through legislation. (In other words, a Congress-created harm alone isn't enough: a plaintiff still has to show actual harm under the standing rules in order to satisfy Article III.)

The case, Hagy v. Demers, arose when Demers, an attorney for a mortgage lender, wrote to the Hagys' attorney saying that his client wouldn't seek to collect on any deficiency balance on the Hagys' mortgage loan. But Demers didn't include a statement that this was a "communication . . . from a debt collector," as required by the FDCPA. So after the mortgage lender nevertheless hassled the Hagys for payment, the Hagys sued Demers, arguing that the FDCPA created an individual right to a notice that a communication is from a debt collector, and that Demers's failure to include the notice harmed them.

The Sixth Circuit rejected that argument. The court held that under Spokeo the Hagys had to show actual harm to establish Article III standing even if Congress purported to create a harm under the FDCPA, and that they couldn't show that Demers's letter harmed them in any concrete way. (In fact, the court said it helped them.)

The court analogized this separation-of-powers problem to a familiar federalism problem to illustrate the limits on Congress:

Congress may not use its enforcement power under the Fourteenth Amendment to redefine the "free exercise" of religion however it wishes and in the process intrude on the States' existing powers in the area. So too with the horizontal separation of powers at the national level. Congress may not enact a law that eliminates Article III safeguards that permit federal courts only to use the "judicial Power" to hear "Cases" and "Controversies."

And:

We know of no circuit court decision since Spokeo that endorses an anything-hurts-so-long-as-Congress-says-it-hurts theory of Article III injury. Although Congress may "elevate" harms that "exist" in the real world before Congress recognized them to actionable legal status, it may not simply enact an injury into existence, using its lawmaking power to transform something that is not remotely harmful into something that is.

The court acknowledged the challenges in drawing a line "between what Congress may, and may not, do in creating an 'injury in fact.'" ("Put five smart lawyers in a room, and it won't take long to appreciate the difficult of the task at hand.") But the court said this case was easy: The Hagys didn't even try to show that they suffered some harm outside of the "procedural harm" that Congress created in requiring the disclosure under the FDCPA.

The ruling means that the Hagys' case is dismissed.

February 16, 2018 in Cases and Case Materials, Courts and Judging, Jurisdiction of Federal Courts, News, Opinion Analysis, Separation of Powers, Standing | Permalink | Comments (0)

Thursday, February 15, 2018

Fourth Circuit En Banc Affirms Injunction Against Trump's Travel Ban 3.0

In its 285 page opinions in IRAP v. Trump, the Fourth Circuit en banc majority has found that the so-called Travel Ban 3.0,  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, is essentially intended as a Muslim Ban and thus there is a likelihood of success on the merits of the First Amendment Establishment Clause challenge meriting a preliminary injunction. 

The majority is composed of nine judges, with four judges (including a Senior Judge) dissenting. Some judges in the majority also wrote concurring opinions that would also grant relief on the statutory claims.

Recall that in October, Maryland District Judge Theodore Chuang has issued a nationwide injunction against the so-called "Muslim Ban 3.0" in an almost 100 page opinion, shortly after Hawai'i District Judge Derrick Watson had issued a nationwide injunction based largely on statutory grounds, which the Ninth Circuit affirmed. 

Recall also that SCOTUS granted certiorari to the Ninth Circuit's opinion, adding the Establishment Clause issue to the questions to be considered.  Most likely this case will be added to the SCOTUS docket.

The majority opinion by Chief Judge Gregory, after setting out the litigation history and preliminary injunction standard, delves into the Establishment Clause issue. Chief Judge Gregory begins by finding both that there is standing and that the case is ripe.

On the merits, Chief Judge Gregory's opinion first considers whether the proffered reason for the government act is "facially legitimate and bona fide" under Kleindienst v. Mandel (1972). The court assumes without deciding that the reason is facially legitimate, but holds that it is not bona fide:

here the Government’s proffered rationale for the Proclamation lies at odds with the statements of the President himself. Plaintiffs here do not just plausibly allege with particularity that the Proclamation’s purpose is driven by anti-Muslim bias, they offer undisputed evidence of such bias: the words of the President. This evidence includes President Trump’s disparaging comments and tweets regarding Muslims; his repeated proposals to ban Muslims from entering the United States; his subsequent explanation that he would effectuate this “Muslim” ban by targeting “territories” instead of Muslims directly; the issuance of EO-1 and EO-2, addressed only to majority-Muslim nations; and finally the issuance of the Proclamation, which not only closely tracks EO-1 and EO-2, but which President Trump and his advisors described as having the same goal as EO-1 and EO-2.

The President’s own words—publicly stating a constitutionally impermissible reason for the Proclamation—distinguish this case from those in which courts have found that the Government had satisfied Mandel’s “bona fide” prong.

Chief Judge Gregory then found that the Travel Ban 3.0 failed the Lemon v. Kurtzman (1971) test which requires the government to show that its challenged action has a primary secular legislative purpose, and then, even if it does that its principal or primary effect neither advances nor inhibits religion and which does not foster ‘an excessive government entanglement with religion. Chief Judge Gregory's majority opinion concludes that Travel Ban 3.0 did not have a primary secular purpose but, like its previous incarnations, was motivated by anti-Muslim bias. Chief Judge Gregory noted the government's argument to disregard the President's pre-election statements was a difficult one to make, but stated it did not need to rely on any campaign statements "because the President’s inauguration did not herald a new day."

Among the incidents Chief Judge Gregory recounts is this one from November 28, 2017 (after the Travel Ban 3.0 September 24, 2017 Proclamation):

President Trump retweeted three disturbing anti-Muslim videos entitled: “Muslim Destroys a Statue of Virgin Mary!” “Islamist mob pushes teenage boy off roof and beats him to death!” and “Muslim migrant beats up Dutch boy on crutches!” The three videos were originally tweeted by an extremist political party whose mission is to oppose “all alien and destructive politic or religious doctrines, including . . . Islam.” When asked about the three videos, President Trump’s deputy press secretary Raj Shah responded by saying that the “President has been talking about these security issues for years now, from the campaign trail to the White House” and “the President has addressed these issues with the travel order that he issued earlier this year and the companion proclamation.” The Government does not—and, indeed, cannot—dispute that the President made these statements.

 Thus, the question of how long a "taint" of impermissible motive should persist was acknowledged and then quickly dispatched: "President Trump could have removed the taint of his prior troubling statements; for a start he could have ceased publicly disparaging Muslims." Moreover, the government initially relied on the months-long agency review to remove the taint, but

chose not to make the review publicly available and so provided a reasonable observer no basis to rely on the review. Perhaps in recognition of this, at oral argument before us the Government expressly disavowed any claim that the review could save the Proclamation. Instead, the Government conceded that the Proclamation rises and falls on its own four corners.

For the majority, then,

The contradiction between what the Proclamation says—that it merely reflects the results of a religion-neutral review—and what it does “raises serious doubts” about the Proclamation’s proffered purpose, and undermines the Government’s argument that its multi-agency review cured any earlier impermissible religious purpose.

Chief Judge Gregory's majority opinion summed up its reasoning:

Our constitutional system creates a strong presumption of legitimacy for presidential action and we often defer to the political branches on issues related to immigration and national security. But the disposition in this case is compelled by the highly unusual facts here. Plaintiffs offer undisputed evidence that the President of the United States has openly and often expressed his desire to ban those of Islamic faith from entering the United States. The Proclamation is thus not only a likely Establishment Clause violation, but also strikes at the basic notion that the government may not act based on “religious animosity.”

Finally, on the scope of the injunction, the majority opinion arguably broadened it:

To the extent that the district court held that IRAP, HIAS, and similar organizations categorically lack a qualifying bona fide relationship with their clients, we conclude that this would be an abuse of discretion. We see no need to read more into the Supreme Court’s grant of a stay than what it held: that refugees with formal assurances do not categorically enjoy a bona fide relationship with a U.S. entity. Instead, IRAP, HIAS, and other organizations that work with refugees or take on clients are subject to the same requirements as all other entities under the Supreme Court’s bona fide relationship standard: a relationship that is “formal, documented, and formed in the ordinary course, rather than for the purpose” of evading the travel restrictions imposed by the Proclamation.

Nevertheless, the Fourth Circuit stayed its decision, in light of the Supreme Court’s order staying the district judge's injunction pending “disposition of the Government’s petition for a writ of certiorari, if such writ is sought."

 

February 15, 2018 in Courts and Judging, Establishment Clause, Executive Authority, First Amendment, Opinion Analysis, Recent Cases, Religion, Supreme Court (US) | Permalink | Comments (0)

Tuesday, February 13, 2018

District Judge Grants Preliminary Injunction in DACA Rescission

In a 55 page opinion in the consolidated cases of Vidal v. Nielsen and New York v. Trump, United States District Judge Nicholas Garaufis granted a preliminary injunction against the rescission of DACA, the Deferred Action for Childhood Arrivals program, covering 800,000 people in the United States who are not citizens but who have been residents since childhood. 

Recall that New York, joined by 15 other states and D.C. filed a complaint last September alleging the DACA rescission violated the constitution as well as being unlawful under the Administrative Procedure Act (APA). Judge Garaufis's Order is based on a violation of the APA finding the rescission arbitrary and capricious based in part on the Attorney General Jefferson Sessions's memo finding the DACA program unconstitutional.

After an extended analysis of Sessions's Letter, Judge Garaufis writes

To the extent the decision to end the DAGA program was based on the Attorney General's determination that the program is unconstitutional, that determination was legally erroneous, and the decision was therefore arbitrary and capricious. The court does not address whether the DACA program might be unconstitutional on grounds other than those identified by the Attorney General, as any such grounds are not fairly before the court.

Judge Garaufis also made clear the limited scope of the preliminary injunction:

2048px-DACA_protest_Columbus_Circle_(90257)This order does not hold that the rescission of DACA was unlawful. That question is for summary judgment, not motions for a preliminary injunction. Cf. Hamilton Watch Co. v. Benrus Watch Co., 206 F.2d 738, 742 (2d Cir. 1953) (“[A] preliminaiy injunction . . . is, by its very nature, interlocutory, tentative, provisional, ad interim, impermanent, mutable, not fixed or final or conclusive, characterized by its for-the-time-beingness.”).

This order does not hold that Defendants may not rescind the DACA program. Even if the court ultimately finds that Defendants’ stated rationale for ending the DACA program was legally deficient, the ordinary remedy is for the court to remand the decision to DHS for reconsideration. On remand, DHS “might later, in the exercise of its lawful discretion, reach the same result for a different reason.

This order does not require Defendants to grant any particular DACA applications or renewal requests. Restoring the DACA program to the status quo as of September 4, 2017, does not mean that every DACA recipient who requests renewal of his or her deferred action and work authorization will receive it. The DACA program identified “criteria [that] should be satisfied before an individual is considered for an exercise of prosecutorial discretion.” (2012 DACA Memo at 1.) It did not require immigration officials to defer action against any individuals who met these criteria; to the contrary, the 2012 DACA Memo stated that DHS would exercise prosecutorial discretion “on an individual basis” and would not “provide any assurance that relief will be granted in all cases.” Preserving the status quo means only that Defendants must continue considering DACA applications and renewal requests, not that they must grant all such applications and requests. This order does not prevent Defendants’ from revoking individual DACA recipients’ deferred action or work authorization. Under the 2012 DACA Memo, DHS may terminate a DACA recipient’s deferred action “at any time, with or without a Notice of Intent to Terminate, at [its] discretion.” Maintaining the status quo does nothing to alter that.

[some citations omitted].

 Recall that Judge Alsup of the Northern District of California issued a preliminary injunction in January which the government is appealing.

image via

 

February 13, 2018 in Courts and Judging, Executive Authority, Family, Opinion Analysis | Permalink | Comments (0)

Monday, January 29, 2018

Federal District Judge Orders Release of Detained Immigrant: The Right to Say Goodbye

In a brief and impassioned Opinion and Order  in Ragbir v. Sessions, United States District Judge Katherine Forrest of the Southern District of New York ordered the immediate release of immigrant rights activist Ravidatha ("Ravi") Ragbir, whose case has attracted much attention.

Judge Forrest noted with "grave concern" that Ragbir may have been targeted for his speech on immigration matters. She described Ragbir as a Legal Permanent Resident since 1994, living in Brooklyn, with his wife and daughter, both of whom are American citizens, and the Executive Director of the New Sanctuary Coalition of New York City, on the Steering Committee of the New York State Interfaith Network for Immigration Reform, and has  having served as the Chair of the Board of Families for Freedom.

The underlying immigration dispute involves what the judge called a "mysterious 'travel document,'" but the Judge found that this document should not decide the case:

The Court in fact agrees with the Government that the statutory scheme - - - when one picks the path through the thicket in the corn maze  - - - allows them to do what was done Ragbirhere.    But there are times when statutory schemes may be  implemented in ways that tread on rights that are larger, more fundamental. Rights that define who we are as a country, what we demand of ourselves, and what we have guaranteed to each other: our constitutional rights. That has occurred  here. 

In sum, the Court finds that when this country allowed petitioner to become  a part of our community fabric, allowed him to build a life with and among us and  to enjoy the liberties and freedom that come with that, it committed itself to  allowance of an orderly departure when the time came, and it committed itself to  avoidance of unnecessary cruelty when the time came. By denying petitioner these  rights, the Government has acted wrongly.          

Judge Forrest grounded her finding in the Due Process Clause of the Fifth Amendment:

But if due process means anything at all, it means that we must look at the totality of circumstances and determine whether we have dealt fairly when we are depriving a person of the most essential aspects of life, liberty, and family. Here, any examination of those circumstances makes clear that petitioner’s liberty interest, his interest in due process, required that we not pluck him out of his life without a moment’s notice, remove him from his family and community without a moment’s notice. The process that was due here is not process that will allow him to stay indefinitely - - - those processes have been had.  The process that is due here is the allowance that he know and understand that the time has come, that he must organize his affairs, and that he do so by a date  certain. That is what is due. That is the process required after a life lived among  us.

[footnotes omitted].

Judge Forrest continued:

Here, instead, the process we have employed has also been unnecessarily cruel. And those who are not subjected to such measures must be shocked by it, and  find it unusual.” That is, that a man we have allowed to live among us for years, to  build a family and participate in the life of the community, was detained,  handcuffed, forcibly placed on an airplane, and today finds himself in a prison cell.  All of this without any showing, or belief by ICE that there is any need to show,  that he would not have left on his own if simply told to do so; there has been no  showing or even intimation that he would have fled or hidden to avoid leaving as  directed. And certainly there has been no showing that he has not conducted  himself lawfully for years. Taking such a man, and there are many such men and  women like him, and subjecting him to what is rightfully understood as no different  or better than penal detention, is certainly cruel.    We as a country need and must not act so. The Constitution commands better.

She concluded:

Constitutional principles of due process and the avoidance of unnecessary cruelty here allow and provide for an orderly departure. Petitioner is entitled to the freedom to say goodbye.

[image via]

January 29, 2018 in Courts and Judging, Due Process (Substantive), Fifth Amendment, Opinion Analysis | Permalink | Comments (0)

Wednesday, January 17, 2018

Daily Read: Was Marbury v. Madison Right? Justice Kennedy Wants to Know

The United States Supreme Court heard oral arguments in Dalmazzi v. United States in which the complicated issue is whether 10 U.S.C. § 973(b)(2)(A)(ii), the so-called dual-officeholding ban, prohibits military officers from holding or exercising the functions of a “civil office” requiring a presidential nomination and Senate confirmation “except as otherwise authorized by law.”  The case is made more complicated by the threshold issue of whether the Court has power to review the case.  Amy Howe has a good discussion of the oral argument on SCOTUSblog.

A notable highlight of the argument was when Justice Kennedy asked ConLawProf Stephen Vladeck, arguing for the petitioners, whether Chief Justice John Marshall was correct in  Marbury v. Madison.

Lossy-page1-762px-Chief_Justice_Marshall_(NYPL_Hades-256630-EM14964).tiffJUSTICE KENNEDY:  Do you think Marbury versus Madison is right?

(Laughter.)

JUSTICE KENNEDY:  Particularly as to the interpretation with such exceptions as Congress may make.

VLADECK: So, I will confess, Justice Kennedy, that I may perhaps belong in the school of scholars who thinks that Chief Justice Marshall read both the statute and the Constitution to reach the constitutional questions he wanted to reach. I'm not sure that he nevertheless didn't end up with the right -- with the wrong answer. And, again, I think, for purposes of the question presented in this case on this Court's jurisdiction, the more relevant case is not Marbury but [Ex Parte] Bollman [1807].

And if I may, Mr. Chief Justice, I'd like to reserve my time.

 

 

ConLawProfs and ConLaw students engaging with Marbury v. Madison could not ask for a more current example of the continuing relevance of the case.  And for enhanced learning, try the CALI Lesson on the case or these ideas.

January 17, 2018 in Cases and Case Materials, Congressional Authority, Courts and Judging, Jurisdiction of Federal Courts, Oral Argument Analysis, Profiles in Con Law Teaching, Recent Cases, Supreme Court (US), Teaching Tips | Permalink | Comments (0)

Thursday, January 11, 2018

Daily Read: Amicus Brief Supporting Summer Zervos Right to Sue Donald Trump

Recall the lawsuit by Summer Zervos against Donald Trump for defamation.  It's filed in New York state court and Trump has argued that Clinton v. Jones, the 1997 case in which the United States Supreme Court held that President Clinton was not immune from being sued, should not apply to state court proceedings.

In an amicus brief filed in Zervos v. Trump, and available on ssrn, three law professors who submitted an amicus brief in Clinton v. Jones in support of a plaintiffs' right to sue the sitting President in federal court,now argue that the rule should apply to state court as well. The professors - - - Stephen Burbank, Richard Parker, and Lucas Powe,  Jr. - - - argue that a President should be amenable to suit in state as well as federal court, with appropriate docket-management accommodations made in light of the demands on a President's time and attention. 

At issue is footnote 13 of Clinton v. Jones which might be read to distinguish state court proceedings from the federal one involved in Clinton:

Because the Supremacy Clause makes federal law “the supreme Law of the Land,” Art. VI, cl. 2, any direct control by a state court over the President, who has principal responsibility to ensure that those laws are “faithfully executed,” Art. II, §3, may implicate concerns that are quite different from the interbranch separation of powers questions addressed here. Cf ., e.g. , Hancock v. Train , 426 U.S. 167, 178 -179 (1976); Mayo v. United States , 319 U.S. 441, 445 (1943). See L. Tribe, American Constitutional Law 513 (2d ed. 1988) (“[A]bsent explicit congressional consent no state may command federal officials . . . to take action in derogation of their . . . federal responsibilities”).  

The amicus brief contends that the footnote is best read as limited to the problem of direct control of presidential activities by a state court.  That, they argue, is not the Zervos suit, since Zervos' lawsuit has nothing to do with the president's duties.  They conclude that the best reading of the Constitution, the requirements of federalism and the rule of law, and the Supreme Court's decision in Clinton v. Jones direct that state courts be permitted to entertain suits against sitting Presidents for conduct arising from their pre-Presidential conduct, just as federal courts can.

Judge Jennifer Schecter has yet to issue a ruling.

January 11, 2018 in Courts and Judging, Current Affairs, Executive Authority, Executive Privilege, Federalism, Scholarship | Permalink | Comments (0)

Tuesday, January 9, 2018

Three Judge Court Holds North Carolina Redistricting Unconstitutional

In an extensive and well-crafted opinion in the consolidated cases of Common Cause v. Rucho and League of Women Voters v. Rucho, a three judge court found North Carolina's 2016 redistricting plan was unconstitutional partisan gerrymandering under the Equal Protection Clause, the First Amendment, and Article I §§ 2, 4.

Recall that the United States Supreme Court heard oral arguments on the issue of partisan gerrymandering in Gill v. Whitford in the earliest days of this Term.  Recall also that in early December, the United States Supreme Court added another partisan gerrymandering case to its docket, Benisek v. Lamone. 

Fourth Circuit Judge James Wynn's almost 200 page opinion for the majority, joined by Senior District Judge Britt, first discusses the facts involved in the North Carolina redistricting, some incidents and players of which will be familiar from the Supreme Court's opinion in Cooper v. Harris, a racial gerrymandering case challenging only two districts and arising from an earlier North Carolina redistricting.

This is the 2016 plan at issue in Common Cause and League of Women Voters:

NorthCarolina2016USHouseDistricts

Judge Wynn's opinion carefully resolves the question of standing and justiability.  Important to the justiciability analysis is the issue of judicially manageable standards, and Judge Wynn writes a robust support for social science, noting that the "Supreme Court long has relied on statistical and social science analyses as evidence that a defendant violated a standard set forth in the Constitution" and citing cases under the Equal Protection Clause such as Yick Wo v. Hopkins, Brown v. Board of Education of Topeka, and City of Richmond v. J.A. Croson Co.  (It is interesting in this regard to (re)consider Chief Justice Roberts's statements during the oral argument in Gill v. Whitford disparaging social science.) 

Judge Wynn wrote:

To hold that such widely used, and relied upon, methods cannot provide a judicially manageable standard for adjudicating Plaintiffs’ partisan gerrymandering claims would be to admit that the judiciary lacks the competence—or willingness—to keep pace with the technical advances that simultaneously facilitate such invidious partisanship and provide an opportunity to remedy it.

On the merits of the Equal Protection Clause claim, Judge Wynn's opinion found that there must be an intent to discriminate on a partisan basis and that there was such an effect, and then the burden would shift to the governmental defendant to prove that a legitimate state interest or other neutral factor justified such discrimination. Here, Judge Wynn's opinion concluded that all were resolved in the challengers' favor.  On the First Amendment claim, Judge Wynn considered several strands of doctrine:

Against these many, multifaceted lines of precedent, the First Amendment’s applicability to partisan gerrymandering is manifest. How can the First Amendment prohibit the government from disfavoring certain viewpoints, yet allow a legislature to enact a districting plan that disfavors supporters of a particular set of political beliefs? How can the First Amendment bar the government from disfavoring a class of speakers, but allow a districting plan to disfavor a class of voters? How can the First Amendment protect government employees’ political speech rights, but stand idle when the government infringes on voters’ political speech rights? And how can the First Amendment ensure that candidates ascribing to all manner of political beliefs have a reasonable opportunity to appear on the ballot, and yet allow a state electoral system to favor one set of political beliefs over others? We conclude that the First Amendment does not draw such fine lines.

Nevertheless, with no clear framework for resolving the First Amendment issues, Judge Wynn found that the Equal protection framework was most applicable, and again satisfied by the plaintiffs.
 
Finally, the court found that North Carolina's "2016 Plan’s invidious partisanship runs contrary to the Constitution’s vesting of the power to elect Representatives in “the People.” U.S. Const. art. I, § 2," and to disfavor a class of candidates and dictate the outcome of an election as prohibited by  art. I §4.

In a brief separate opinion, concurring in part and dissenting in part, District Judge Osteen, Jr., disagreed as the standard for proving intent in Equal Protection but concluded the standard was met; disagreed on the merits of the First Amendment claim; and agreed that there was a violation of Article I.

Judge Wynn's opinion gave North Carolina until January 29 to submit a new plan to the Court, but one wonders if North Carolina will also be aggressively pursuing remedies at the United States Supreme Court, especially given Gill v. Whitford and Benisek v. Lamone. 

 

January 9, 2018 in Courts and Judging, Elections and Voting, Equal Protection, First Amendment, Fundamental Rights, Interpretation, Opinion Analysis, Supreme Court (US) | Permalink | Comments (0)

Court Says Group has Standing to Seek Powell E-Mails

Judge Trevor McFadden (D.D.C.) ruled today that Cause of Action Institute has standing to sue to seek former Secretary of State Colin Powell's work-related e-mails on his personal AOL account. The ruling means that the case can move forward.

Cause of Action Institute first sought the Powell e-mails through a FOIA request. But after the State Department said that the e-mails no longer exist, the organization sued under the Federal Records Act and the Administrative Procedure Act. State and the Archivist moved to dismiss, arguing that Cause's harm (not getting the e-mails) couldn't be redressed by a favorable court ruling, because, after all, the e-mails no longer exist. Without redressibility, there's no standing.

The court disagreed. Judge McFadden ruled, in short, that the government hadn't tried hard enough to obtain the missing e-mails, given its mandatory obligations to recover missing records under the FRA. The court followed the D.C. Circuit's lead in Judicial Watch, Inc. v. Kerry, which held that a similar case seeking former Secretary Clinton's missing e-mails wasn't moot, and noted that further government investigation in that case led to the discovery of many of those e-mails. The same could be true here, the court reasoned, meaning that Cause could show that a court order for the government to investigate further could lead to the discovery of the e-mails--and that it therefore has standing.

Today's ruling--again, backed by the D.C. Circuit's ruling in Judicial Watch--means that Cause's case can move forward and seek a court order for the government to initiate action under the FRA through the Attorney General for recovery of the e-mails.

January 9, 2018 in Courts and Judging, Jurisdiction of Federal Courts, News, Opinion Analysis, Standing | Permalink | Comments (0)

Tuesday, January 2, 2018

Daily Read: Judicial "Supremacy" and Comparative Constitutional Law

While our recent attention has been focused on the character and the lack of  gender diversity of those who occupy judicial positions, the question of the role of the judiciary in a constitutional democracy is broader.  In an article entitled Judicial Review and Sexual Freedom published over a decade ago, I discussed the common conceptions that judicial review was the United States' most renowned legal export while exploring the ways in which it remained contested in the area of basic sexual equality. In his forthcoming article in Tulane Law Review, Judicial Supremacy in Comparative Constitutional Law, Manoj Mate "challenges the prevailing conception of judicial supremacy in comparative constitutional law as informed by U.S. and western models of constitutionalism, and argues for reconceptualizing judicial supremacy in a way that captures the broader range of institutional roles courts play globally." 

Mate seeks to reorient the discussion from "interpretative supremacy" ("the degree to which constitutional courts serve as the exclusive and final interpreter of the Constitution, or decisional supremacy") to "institutional supremacy" (the role of courts  in judicial review of constitutional amendments, entrenching constitutional norms and principles, and even structuring government and litigation).

140px-Emblem_of_the_Supreme_Court_of_India.svgMate takes as his central example the Supreme Court of India - - - which has one woman out of its 25 judges  - - - and  discusses in detail the cases and circumstances which lead to the present situation in which "India remains the only constitutional system in the world in which the Chief Justice of India (and the collegium of justices) enjoy primacy in judicial appointments."  The Supreme Court of India has also played a determining role in curbing government corruption and managing public interest litigation. 

Mate interestingly argues that the "supremacy of the Indian Supreme Court is not purely a product of the assertion of political power by political regimes who construct judicial review to advance political or partisan agendas and goals," but instead has operated in the particular conditions of India as a powerful force "for protecting constitutionalism and optimizing governance." In short, judicial review has not operated as anti-democratic but as staunchly democratic.

Mate concludes that India's "more pragmatic model of judicial supremacy" can be a model "for newer constitutional democracies across the globe." But Mate's article opens with a statement from Presidential advisor Stephen Miller in reference to judicial decisions regarding the constitutionality of the presidential travel ban as examples of judges taking "power for themselves that belongs squarely in the hands of the president of the United States."  When criticism of the judicial role is heightened, it does seem fitting that judges must act pragmatically to protect democracy.

  1600px-Supreme_Court_of_India_-_200705

[Supreme Court of India building via]

January 2, 2018 in Comparative Constitutionalism, Courts and Judging, International, Interpretation, Scholarship | Permalink | Comments (1)

Monday, January 1, 2018

Daily Read: Reconstructing the (Male) Voice of Authority

 Recall that Chief Justice Roberts' 2017 year-end report on the judiciary included an announcement of a working group to address the "depth of sexual harassment" in the judicial workplace. One might hope that the working group also addresses the seeming backtracking of the commitment to diversify the federal bench with regards to gender, as well as other disproportionately underrepresented people. Perhaps this new working group will re-examine the plethora of gender bias in the courts reports - - - and responses to them - - - from previous decades. (For a good discussion and survey see, Rena M. Atchison, A Comparison of Gender Bias Studies: Eighth Circuit Court of Appeals and South Dakota Findings in the Context of Nationwide Studies, 43 S.D. L. Rev. 616 (1998)).

While not focusing on judicial diversity or sexual harassment specifically, Professor Susie Salmon (University of Arizona College of Law) argues that the problem of women's persistent inequality in the legal profession is rooted in classical notions of what it means to be a judge and advocate. In her article Reconstructing the Voice of Authority, 51 Akron Law Review 143 (2017), Salmon begins by quoting famous feminist classicist Mary Beard who has written tellingly about the mythic Penelope, the first woman in recorded Western history to be told to be quiet (and by her son). Salmon argues

1024px-Penelope_(the_faithful_wife_of_Odysseus) _from_Rome _Hadrianic_copy_of_Greek_work_from_5th_century_BC _Ny_Carlsberg_Glyptotek _Copenhagen_(12948415925)until we stop indoctrinating law students that a “good lawyer” looks, sounds, and presents like the Classical warrior—that is, a male—these barriers will persist. For many law students, the first place they get to model what it means to look, sound, and act like a lawyer is in moot court or other oral-argument exercises. Especially in light of an overall law-school culture that reinforces the significance of inborn abilities, it is not hard to see how moot court’s frequent emphasis on “natural” oral-advocacy talent, and its implicit connection of that talent to traits traditionally associated with men, can influence how students—and later lawyers—develop rigid conceptions of what a good lawyer looks, sounds, and acts like. And continuing to uncritically teach the values of Classical rhetoric—values inherited from a culture that silenced women’s voices in the public sphere—exacerbates the problem.

idely used term tha

Rena M. Atchison, A Comparison of Gender Bias Studies: Eighth Circuit Court of Appeals and South Dakota Findings in the Context of Nationwide Studies, 43 S.D. L. Rev. 616 (1998)
idely used term tha

Rena M. Atchison, A Comparison of Gender Bias Studies: Eighth Circuit Court of Appeals and South Dakota Findings in the Context of Nationwide Studies, 43 S.D. L. Rev. 616 (1998)
myriad of definitions

Rena M. Atchison, A Comparison of Gender Bias Studies: Eighth Circuit Court of Appeals and South Dakota Findings in the Context of Nationwide Studies, 43 S.D. L. Rev. 616 (1998)
myriad of definitions

Rena M. Atchison, A Comparison of Gender Bias Studies: Eighth Circuit Court of Appeals and South Dakota Findings in the Context of Nationwide Studies, 43 S.D. L. Rev. 616 (1998)

Her concentration on moot court comes two decades after Mairi N. Morrison, May It Please Whose Court?: How Moot Court Perpetuates Gender Bias in the “Real World” of Practice, 6 UCLA WOMEN’S L.J. 49 (1995), and essentially asks why things have not changed.

Perhaps it is because there is a continued effort to police women's voices. As Salmon states:

And, as modern  moot- court wisdom would have it, the voice of authority is still a deep and  resonant one. No lesser authorities than U.S. Supreme Court Justice  Antonin Scalia and noted legal-writing expert Bryan Garner advise advocates to spend time on efforts to lower their vocal pitch, opining that  “a high and shrill tone does not inspire confidence.” Scalia and Garner hardly stand alone; advice about lowering vocal register pervades books  and articles on effective oral advocacy. Even those oral-advocacy experts who explicitly acknowledge the sexism that may underlie the  connection between low voices and authority nonetheless counsel advocates to speak in the lower end of their vocal range.

Salmon's article ends with a "menu of solutions" particular to moot court, but they could easily be translated to issues of sexual harassment as well as judicial diversity and constitutional equality.
 
[image: "Penelope (the faithful wife of Odysseus)" 5th C. BCE via]

 

January 1, 2018 in Courts and Judging, Current Affairs, Gender, Scholarship, Teaching Tips | Permalink | Comments (0)

Sunday, December 31, 2017

Chief Justice Roberts' Year End Report Highlights Disasters and Harassment

In his 2017 Year-End Report on the Federal Judiciary United States Supreme Court Chief Justice concentrated on disaster-preparedness, stating that

we cannot forget our fellow citizens in Texas, Florida, Puerto Rico, and the Virgin Islands who are continuing to recover from Hurricanes Harvey, Irma, and Maria, and those in California who continue to confront historic wildfires and their smoldering consequences. The courts cannot provide food, shelter, or medical aid, but they must stand ready to perform their judicial functions as part of the recovery effort.

As part of the effort to maintain judicial functions, Roberts' noted that the Administrative Office of the United States Courts has established an Emergency Management and Preparedness Branch, including having response teams. He added:

I recognize that this might sound like trying to fight fire with administrative jargon. But imagine yourself one of a handful of employees of the bankruptcy court in Santa Rosa, California, when raging wildfires suddenly approach the courthouse where you work and state officials order evacuation—as happened this past September. The staff members did not face the emergency alone; they had at their disposal a professional response team to assist in making quick decisions to protect personnel, relocate services, and ensure continuity of operations.

He also lauded the oft-forgotten territories in the United States that have been coping with the after-effects of disaster:

The hurricanes brought flooding, power outages, infrastructure damage, and individual hardship to Texas and Florida. But the judicial districts of the Virgin Islands and Puerto Rico were especially hard hit. Judges and court employees responded in dedicated and even heroic fashion. They continued to work even in the face of personal emergencies, demonstrating their commitment to their important public responsibilities.

800px-Official_roberts_CJAnd he pointed out that the obligation of the judicial system included persons subject to the courts’ continuing jurisdiction, including those who are imprisoned, as well as other challenges.

Roberts' ended the 16 page report with a segue to the "new challenge" of dealing with the "depth of sexual harassment."

Events in recent months have illuminated the depth of the problem of sexual harassment in the workplace, and events in the past few weeks have made clear that the judicial branch is not immune. The judiciary will begin 2018 by undertaking a careful evaluation of whether its standards of conduct and its procedures for investigating and correcting inappropriate behavior are adequate to ensure an exemplary workplace for every judge and every court employee.

I have asked the Director of the Administrative Office to assemble a working group to examine our practices and address these issues. I expect the working group to consider whether changes are needed in our codes of conduct, our guidance to employees—including law clerks—on issues of confidentiality and reporting of instances of misconduct, our educational programs, and our rules for investigating and processing misconduct complaints. These concerns warrant serious attention from all quarters of the judicial branch. I have great confidence in the men and women who comprise our judiciary. I am sure that the overwhelming number have no tolerance for harassment and share the view that victims must have clear and immediate recourse to effective remedies.

Roberts' is undoubtedly responding to the high-profile resignation of Ninth Circuit Judge Alex Kozinski and public letters from former law clerks, professors, and others to address the issue of inappropriate conduct by federal judges.

What might have also been in the report?  The need for diversity among Article III judges, especially given the tendency of the recent and current nominations to be white and male.

December 31, 2017 in Courts and Judging, Gender, Jurisdiction of Federal Courts, News, Race | Permalink | Comments (0)