Thursday, October 18, 2018

Check it Out: Liptak on Judicial Clerk Training by Heritage

Check out Adam Liptak's piece in the NYT on the Heritage Foundation's closed-door "training academy" for federal judicial clerks. Here's from the article:

"Generous donors," the application materials said, were making "a significant financial investment in each and every attendee." In exchange, the future law clerks would be required to promise to keep the program's teaching materials secret and pledge not to use what they learned "for any purpose contrary to the mission or interest of the Heritage Foundation."

October 18, 2018 in Courts and Judging, News | Permalink | Comments (0)

Wednesday, October 10, 2018

District Judge Finds ICWA Unconstitutional

In his opinion in Brackeen v. Zinke, United States District Judge for the Northern District of Texas, Reed O'Connor, entered summary judgment for the plaintiffs and found that portions of the Indian Child Welfare Act, ICWA  are unconstitutional, specifically violating equal protection, the non-delegation doctrine of Article I, and the commandeering principle of the Tenth Amendment.  Passed in 1978, the general purpose of ICWA is to prevent Native children from being removed from their families and tribes based on a finding that "an alarmingly high percentage of Indian families [were being] broken up by the removal, often unwarranted, of their children from them by nontribal public and private agencies” as Judge O'Connor's opinion acknowledged, quoting Adoptive Couple v. Baby Girl (2013) (quoting 25 U.S.C. § 1901(4)).

Judge Reed O'Connor, however, accepts an argument that was sidestepped by the United States Supreme Court in Baby Girl: that ICWA violates equal protection (applied to the federal government through the Fifth Amendment) by making a racial classification that does not survive strict scrutiny. Recall that in some briefs as well as in the oral argument, the specter of the racial classification was raised.  In United States District Judge O'Connor's opinion, that specter is fully embodied. Judge O'Connor found that ICWA does make a racial classification, rejecting the government's view that the classification at issue was a political category. Judge O'Connor reasoned that ICWA defines Indian child not only by membership in an Indian child, but extends its coverage to children "simply eligible for membership who have a biological Indian parent." Thus, Judge O'Connor reasoned, ICWA's definition "uses ancestry as a proxy for race" and therefore must be subject to strict scrutiny.  Interestingly, the United States government did not offer any compelling governmental interest or argued that the classification is narrowly tailored to serve that interest. Judge O'Connor nevertheless credited the Tribal Defendants/Intervenors assertion of an interest in maintaining the Indian child's relationship with the tribe, but found that the means chosen was overinclusive, concluding that

The ICWA’s racial classification applies to potential Indian children, including those who will never be members of their ancestral tribe, those who will ultimately be placed with non-tribal family members, and those who will be adopted by members of other tribes.

On the non-delegation claim, Judge Reed O'Connor found it fatal that ICWA allows Tribes to change the child placement preferences selected by Congress and which then must be honored by the states in child custody proceedings.

1170px-Flag_of_the_Cherokee_Nation.svg

On the Tenth Amendment claim, Judge Reed O'Connor relied on the Court's recent decision in Murphy v. NCAA holding unconstitutional a federal law prohibiting states from allowing sports gambling regarding anti-commandeering, concluding that

Congress violated all three principles [articulated in Murphy] when it enacted the ICWA. First, the ICWA offends the structure of the Constitution by overstepping the division of federal and state authority over Indian affairs by commanding States to impose federal standards in state created causes of action. See 25 U.S.C. § 1915(a). Second, because the ICWA only applies in custody proceedings arising under state law, it appears to the public as if state courts or legislatures are responsible for federally-mandated standards, meaning “responsibility is blurred.” Third, the ICWA shifts “the costs of regulations to the States” by giving the sole power to enforce a federal policy to the States.  Congress is similarly not forced to weigh costs the States incur enforcing the ICWA against the benefits of doing so. In sum, Congress shifts all responsibility to the States, yet “unequivocally dictates” what they must do.

[citations to Murphy omitted].

 
With more abbreviated analysis, Judge Reed O'Connor found that the applicable regulations pursuant to ICWA violated the Administrative Procedure Act and that Congress did not have power to pass ICWA under the Indian Commerce Clause because it was limited by the Tenth Amendment. However, Judge O'Connor rejected the individual prospective plaintiffs' argument that ICWA violated the Due Process Clause's protection of family rights.
 
This opinion finding a long-standing statute unconstitutional is sure to be appealed, especially by the Cherokee Nation and other Tribal Intervenors.
 

October 10, 2018 in Congressional Authority, Courts and Judging, Due Process (Substantive), Equal Protection, Family, Federalism, Fifth Amendment, Fundamental Rights, Nondelegation Doctrine, Opinion Analysis, Race, Tenth Amendment | Permalink | Comments (0)

Tuesday, October 2, 2018

Check it Out: Tribe on All the Ways a Justice Kavanaugh Would Have to Recuse Himself

Check out Laurence Tribe's piece in the NYT, All the Ways a Justice Kavanaugh Would Have to Recuse Himself. Tribe argues that given Judge Kavanaugh's "intemperate personal attacks on members of the Senate Judiciary Committee, his partisan tirades" last week, and "his stated animosities and observation that 'what goes around comes around,'" he'd have to recuse himself from a whole lot of cases:

Judge Kavanaugh's attacks on identifiable groups--Democrats, liberals, "outside left-wing opposition groups" and those angry "about President Trump and the 2016 election" or seeking "revenge on behalf of the Clintons"--render it inconceivable that he would "administer justice without respect to persons," as a Supreme Court justice must swear to do, when groups like Planned Parenthood, the NRDC Action Fund, the NAACP Legal Defense Fund, NARAL Pro-Choice America or the American Civil Liberties Union appear as parties or file briefs on behalf of plaintiffs and defendants.

 

October 2, 2018 in Courts and Judging, News | Permalink | Comments (1)

Friday, September 28, 2018

District Court Says Members of Congress Have Standing to Sue President for Emoluments Violations

Judge Emmet G. Sullivan (D.D.C.) ruled today in Blumenthal v. Trump that members of Congress have standing to sue President Trump for violations of the Foreign Emoluments Clause. At the same time, Judge Sullivan declined to rule on the President's other three arguments for dismissal--that the plaintiffs lack a cause of action, that they've failed to state a claim (because the President's business interests aren't "emoluments" under the Clause), and that injunctive relief sought is unconstitutional. Thus, the ruling is a set-back for the President, but Judge Sullivan may yet end up dismissing the case on other grounds.

We posted here on the earlier district court ruling that another Emoluments case, brought by Maryland and D.C., can move forward.

The Congressmembers' case alleges that President Trump's overseas business holdings and properties generate income and benefits for the President, without the consent of Congress, in violation of the Foreign Emoluments Clause. That Clause says:

No Title of Nobility shall be granted by the United States: And no Person holding any Office of Profit or Trust under them, shall, without the Consent of the Congress, accept of any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State.

The 201 plaintiffs seek declaratory and injunctive relief. They claimed that they were harmed (for standing purposes) because the President, by failing to seek congressional consent, denied each of them a "vote on the record about whether to approve his acceptance of a prohibited foreign emolument."

The court agreed:

[E]ach time the President allegedly accepts a foreign emolument without seeking congressional consent, plaintiffs suffer a concrete and particularized injury--the deprivation of the right to vote on whether to consent to the President's acceptance of the prohibited foreign emolument--before he accepts it. And although the injury is an institutional one, the injury is personal to legislators entitled to cast the vote that was nullified.

The court went on to say that standing didn't violate the separation of powers. The court held that the plaintiffs lacked an alternative legislative remedy, and that the case was appropriate for judicial review.

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

Wednesday, September 26, 2018

Senator Merkley Sues to Halt Kavanaugh Confirmation Process

Senator Jeff Merkley today sued President Trump, Senate colleagues, and others in federal court (D.D.C.) to halt the confirmation process of Judge Brett Kavanaugh. Senator Merkley argues that the defendants' actions violate the separation of powers and the Senate's constitutional role in providing advice and consent on Judge Kavanaugh's nomination to the Supreme Court.

The lawsuit relates to the defendants' failure to produce documents, not the more recent sexual assault and misconduct allegations against Judge Kavanaugh. The government will surely file a motion to dismiss based on the political question doctrine (itself a separation-of-powers matter), among others. The outcome of the case (and the confirmation process more generally) will set the standards for document release and Senate advice-and-consent for future judicial nominations, by Republicans and Democrats alike.

Here's the gist:

This case arises from the direct and substantial interference by President Trump and other agents of the executive branch in the ability of the Senate to examine the record and evaluate the fitness of Judge Brett Kavanaugh, the President's nominee for a lifetime appointment as an Associate Justice of the Supreme Court of the United States. President Trump and agents of the executive branch interfered in the ability of Senator Merkley and the Senate to provide advice and consent by, inter alia, imposing a broad and unprecedented blockade on the Senate's and public's access to reams of key documents that directly bear on Judge Kavanaugh's views, experience, and character. This improper process regarding the production of relevant documents prevents Senator Merkley and his colleagues from properly exercising their constitutional obligation to provide advice and consent on the qualifications of the nominee and deprives them of the ability to fully assess the nominee's fitness to assume the position of an Associate Justice of the United States Supreme Court.

***

The President and officers of the executive branch have interfered in the Senate's advice and consent responsibility in three critical ways: encouraging the Senate Majority to not request documents related to Kavanaugh's time while serving as Staff Secretary to George W. Bush; blocking access to an extensive set of documents related to the nominee's views and actions while serving in President George W. Bush's Office of White House Counsel; and blocking full access by all Senators and the public to documents delivered to the Senate Judiciary Committee but marked "Committee Confidential."

Senator Merkley asks the court to order that

(a) Defendant Trump withdraw his excessive invocation of executive privilege and produce a privilege log for documents truly subject to executive privilege;

(b) Defendants McConnell, Grassley, Adams, and Stenger not hold or permit a vote on the nominee's confirmation, or otherwise act to advance the confirmation process, until the National Archives releases his records, including the records requested by Senator Grassley regarding the nominee's work at the Office of White House Counsel, and there is sufficient time for the U.S. Senate to review the documents and conduct a careful review of the newly released documents;

(c) National Archives expedite the production of the documents to the earliest date practical;

(d) Defendant Burck cease and desist from usurping the traditional role of the neutral professionals at the National Archives.

September 26, 2018 in Cases and Case Materials, Congressional Authority, Courts and Judging, Executive Authority, News, Separation of Powers | Permalink | Comments (3)

Thursday, September 20, 2018

Ninth Circuit Rules No-Fly Challenger's Case Not Moot

The Ninth Circuit ruled in Fikre v. FBI that the plaintiff's due process challenges to his inclusion on the government's no-fly list were not moot, even though the government took him off the list during the litigation. The ruling means that the plaintiff's case challenging his inclusion on the no-fly list can move forward.

The case arose from Yonas Fikre's inclusion on the no-fly list and his several and significant resulting harms. Fikre alleged that his inclusion violated substantive and procedural due process, and he sought declaratory and injunctive relief. During the litigation, the government removed Fikre from the list, however, and moved to dismiss the case as moot. The district court granted the motion.

The Ninth Circuit reversed. The court ruled that Fikre's case came under the voluntary cessation exception to mootness--that signs pointed to the government opportunistically removing him, and that the government could reinstate him at any time. The court explained:

To begin, the FBI's decision to restore Fikre's flying privileges is an individualized determination untethered to any explanation or change in policy, much less an abiding change in policy. . . .

Moreover, the government has no assured Fikre that he will not be banned from flying for the same reasons that prompted the government to add him to the list in the first place, nor has it verified the implementation of procedural safeguards conditioning its ability to revise Fikre's status on the receipt of new information. . . .

Finally . . . we note that Fikre's removal from the No Fly List does not "completely and irrevocably eradicate[] the effects of the alleged violation[s]."

The ruling sends the case back to the district court for further proceedings.

September 20, 2018 in Cases and Case Materials, Courts and Judging, Jurisdiction of Federal Courts, Mootness, News, Opinion Analysis | Permalink | Comments (0)

Monday, September 10, 2018

Check it Out: Serwer on the Court's Return to the 19th Century

Check out Adam Serwer's piece in The Atlantic, The Supreme Court is Headed Back to the 19th Century. Here's a taste:

The conservative majority on the Supreme Court today is similarly blinded [like the Court in the late 19th century] by a commitment to liberty in theory that ignores the reality of how Americans' lives are actually lived. Like the Supreme Court of that era, the conservatives on the Court today are opposed to discrimination in principle, and indifferent to it in practice. Chief Justice John Roberts's June 2018 ruling to uphold President Donald Trump's travel ban targeting a list of majority-Muslim countries, despite the voluminous evidence that it had been conceived in animus, showed that the muddled doctrines of the post-Reconstruction period retain a stubborn appeal.

September 10, 2018 in Courts and Judging, News | Permalink | Comments (0)

Tuesday, September 4, 2018

Daily Read: Report on the Civil Rights Record of Kavanaugh by NAACP LDF

In its Report entitled The Civil Rights Record of Judge Brett Kavanaugh, the Legal Defense and Education Fund, Inc. of the NAACP supports its opposition to the confirmation of Judge Kavanaugh to the United States Supreme Court.

At just shy of 100 pages, the Report details concerns regarding Kavanaugh's record in areas such as executive power, criminal justice, qualified immunity, voting rights, campaign finance, reproductive rights, Second Amendment, and access to justice issues such as standing and pro se litigants.  But importantly, the Report makes clear:

even before considering the opinions he has authored, the speeches he has given, and his full legal record, the following is true: Judge Kavanaugh’s  nomination is tainted by the influence of reactionary groups in his selection by the  President and by the President’s assertion that his nominees will target and overturn  settled Supreme Court precedent. A woefully inadequate document production is  thwarting the Senate’s “advice and consent” function and the ability of the American  public to determine whether they want their Senators to support this nominee. And  perhaps most significantly, the President’s credibility has been sapped by the ongoing  investigations that raise questions about the legitimacy of his occupancy of the Oval  Office and the vast powers it confers, such as the nomination of Supreme Court  Justices.  This highly unusual and critical context powerfully bears on our assessment of Judge Kavanaugh’s nomination.

Yet the report does delve deeply into Kavanaugh's decisions and reaches conclusions. For example, after a discussion of his decisions about campaign finance, the Report states:

Judge Kavanaugh’s campaign finance record provides four overarching themes. First, Judge Kavanaugh appears hostile to campaign finance regulations, seeming to be unwilling to uphold regulations beyond a narrow anti-corruption rationale. Second, Judge Kavanaugh’s BCRA interpretation [in Bluman v. Federal Election Committee] about the scope of issue-advocacy expenditures would allow foreign actors to engage in thinly veiled “issue advocacy” that deepens racial and religious division leading up to elections. Such a narrow interpretation of the BCRA prevents it from barring foreign actors who influence U.S. elections in concrete ways and increases the likelihood of the use of these racial appeals during the next federal election, an important tool of suppressing the votes of communities of color. Third, as evident in Emily’s List [v. Federal Election Commission], Judge Kavanaugh appears willing to reach out unnecessarily to decide issues in this context. Fourth, Judge Kavanaugh would likely revisit the soft-money limits on contributions to political parties as justice.

At several points, the Report suggests questions and specific focus for the Senate questioning. The hearings begin today.

LDF Report
 

September 4, 2018 in Campaign Finance, Courts and Judging, Supreme Court (US) | Permalink | Comments (0)

Monday, August 27, 2018

Three Judge Court Invalidates North Carolina Redistricting Plan Redux

 In an extensive opinion, a three judge court in Common Cause v. Rucho (& League of Women Voters v. Rucho) held that North Carolina's 2016 redistricting plan was a product of partisan gerrymandering and violates the Equal Protection Clause, the First Amendment, and Article I of the Constitution. 

The opinion is almost 300 pages with an additional comparatively brief 25 plus page concurring and dissenting opinion, but the three judge court is often discussing familiar matters. Recall that the court had reached this result in January 2018.  However, recall also that the United States Supreme Court issued a stay shortly thereafter.  In July 2018, the United States Supreme Court vacated the three judge court's decision in Rucho in light of  Gill v. Whitford (2018), which, the three judge court states, "addressed what evidence a plaintiff must put forward to establish Article III standing to lodge a partisan vote dilution claim under the Equal Protection Clause." The three judge court's opinion in Rucho holds that standing was satisfied under the Gill test as to equal protection and further that "Gill did not call into question—and, if anything, supported—this Court’s previous determination that Plaintiffs have standing to assert partisan gerrymandering claims under Article I and the First Amendment." 

As for the merits, Gill v. Whitford is not particularly useful; as we said when Gill was decided, it (with the per curiam decision in Benisek v. Lamone, "leave the constitutionality of partisan gerrymandering as unsettled as before." Thus, the three judge court had little guidance to reconsider its previous conclusions.

Perhaps the most noteworthy aspect of the three judge court's decision today in Rucho, however, is the remedy: the court notes that the circumstances are unusual and writes:

we decline to rule out the possibility that the State should be enjoined from conducting any further congressional elections using the 2016 Plan. For example, it may be possible for the State to conduct a general election using a constitutionally compliant districting plan without holding a primary election. Or, it may be viable for the State to conduct a primary election on November 6, 2018, using a constitutionally compliant congressional districting plan, and then conduct a general election sometime before the new Congress is seated in January 2019. Accordingly, no later than 5 p.m. on August 31, 2018, the parties shall file briefs addressing whether this Court should allow the State to conduct any future election using the 2016 Plan. Those briefs should discuss the viability of the alternatives discussed above, as well as any other potential schedules for conducting elections using a constitutionally compliant plan that would not unduly interfere with the State’s election machinery or confuse voters. Regardless of whether we ultimately allow the State to use the 2016 Plan in the 2018 election, we hereby enjoin the State from conducting any elections using the 2016 Plan in any election after the November 6, 2018, election.

[emphasis in original].

The November election is in 70 days.

August 27, 2018 in Courts and Judging, Elections and Voting, Equal Protection, First Amendment, Opinion Analysis, Standing, Supreme Court (US) | Permalink | Comments (0)

Saturday, August 25, 2018

Check it Out: Zengerle on How Trump is Remaking the Courts

Check out Jason Zengerle's feature in the NYT Magazine, How the Trump Administration is Remaking the Courts. Zengerle examines how President Trump, with the help (or "ruthless discipline") of Senate Republicans, is shaping the courts. And how he's doing this at a blistering pace. And how this compares to the gummed-up Senate in the Obama Administration.

August 25, 2018 in Courts and Judging, News | Permalink | Comments (0)

Check it Out: Bazelon on a Right-Lurching Court

Check out Emily Bazelon's piece in the NYT Magazine, When the Supreme Court Lurches Right: What happens when the Supreme Court becomes significantly more conservative than the public?

Bazelon traces the history of politics and the Court, and writes,

Maybe a mobilized Democratic Party can somehow overcome all the barriers of Republican entrenchment as it did in the 1930s . . . . If a new dominant national alliance emerges to the left of the Roberts Court, maybe the justices will find a way to become a part of it. Or the Republicans could remain in power because they make a persuasive case to the voters, not because the court aids in eroding the democratic process. In other words, maybe Dahl turns out to be right. Let's hope so. The democracy may be riding on it.

August 25, 2018 in Courts and Judging, News | Permalink | Comments (0)

Friday, August 24, 2018

Ninth Circuit Authorizes Bivens Claim Against ICE Official for Forging Doc in Deportation Case

The Ninth Circuit last week authorized a constitutional tort under Bivens against an ICE official for forging a document that would have led to the plaintiff's deportation. (H/t Theo Lesczynski.) The ruling means that the plaintiff's case can move forward.

The ruling is the second time in recent weeks that the Ninth Circuit authorized a Bivens action in a "new context." (The earlier case involved a Border Patrol officer's cross-border shooting of a Mexican youth.)

The case, Lanuza v. Love, arose when ICE Assistant Chief Counsel Jonathan Love submitted an I-826 form, forged with Lanuza's signature, at Lanuza's immigration hearing. The form indicated that Lanuza accepted voluntary departure to Mexico in 2000, breaking Lanuza's period of accrued continuous residency in the U.S. Without this continuous residency, Lanuza didn't qualify for cancellation of removal; and, based on the forged document, the immigration judge denied cancellation and ordered Lanuza removed. The Board of Immigration Appeals affirmed.

Lanuza then hired a new attorney, who discovered the forgery. (Among other things, the forged document referred to the "U.S. Department of Homeland Security," which did not yet exist at the time that Lanuza purportedly signed the form.) The agency then adjusted Lanuza's status to lawful permanent resident.

Lanuza brought a Bivens claim against Love for violation of his Fifth Amendment rights. The district court dismissed the case, but the Ninth Circuit reversed.

The court ruled that the case raised a "new context," but that no special factors counseled against a Bivens remedy. Indeed, the court said that certain factors favored a Bivens remedy in a case like this, where a government official submitted false evidence in a quasi-judicial proceeding:

Indeed, there are few persons better equipped to weigh the cost of compromised adjudicative proceedings than those who are entrusted with protecting their integrity. And, more often than not, the Judicial Branch, not Congress or the Executive, is responsible for remedying circumstances where a court's integrity is compromised by the submission of false evidence. Thus, it falls within the natural ambit of the judiciary's authority to decide whether to provide a remedy for the submission of false evidence in an immigration proceeding.

The court also denied qualified immunity.

The ruling sends the case back to the district court for proceedings on the merits.

August 24, 2018 in Cases and Case Materials, Courts and Judging, News, Opinion Analysis, Separation of Powers | Permalink | Comments (0)

Thursday, August 23, 2018

Eleventh Circuit: Public Food Sharing is Expressive Activity Under First Amendment

In its opinion in Fort Lauderdale Food Not Bombs v. City of Fort Lauderdale, the Eleventh Circuit reversed the district judge and found that the nature of the activity of Fort Lauderdale Food Not Bombs (FLFNB), "combined with the factual context and environment in which it was undertaken, lead to the conclusion" that FLFNB engaged in a "form of protected expression" under the First Amendment, quoting Spence v. Washington (1974).

As the opinion notes, the panel was resolving "the issue left undecided" in First Vagabonds Church of God v. City of Orlando, Florida (11th Cir. 2011) (en banc). The en banc circuit had stated it need not decide whether the feeding of homeless persons by Orlando Food Not Bombs in public parks is expressive conduct, because even assuming it was, the prohibition was constitutional as a reasonable time, place, or manner restriction of speech and as a reasonable regulation of expressive conduct under United States v. O’Brien (1968). 

Here, Judge Adalberto Jordan writing for the unanimous panel begins:

In understanding what is going on around us, context matters. Food shared with company differs greatly from a meal eaten alone. Unlike a solitary supper, a feast requires the host to entertain and the guests to interact. Lady Macbeth knew this, and chided her husband for “not giv[ing] the cheer” at the banquet depicted in Shakespeare’s play. As she explained: “To feed were best at home; From thence, the sauce to meat is ceremony. Meeting bare without it.” William Shakespeare, The Tragedy of Macbeth, Act III, scene 4 (1606).

Banquo

As to the particularized message requirement for expression, the court stated that it was sufficient that a reasonable observer would infer the precise message intended: 

We decline the City’s invitation to resurrect the Spence requirement that it be likely that the reasonable observer would infer a particularized message. The Supreme Court rejected this requirement in Hurley [v. Irish-Am. Gay, Lesbian & Bisexual Grp. (1995)], 515 U.S. at 569 (a “narrow, succinctly articulable message is not a condition of constitutional protection”), and it is not appropriate for us to bring it back to life.

Having resolved the expressive conduct issue, the Eleventh Circuit panel remanded the question of whether the Fort Lauderdale ordinance and park rule violated the First Amendment or was unconstitutionally vague.

[image via]

August 23, 2018 in Courts and Judging, First Amendment, Food and Drink, Opinion Analysis, Speech | Permalink | Comments (0)

Check it Out: Former OLCers on Kavanaugh and Presidential Power

Check out these letters to Senators Grassley and Feinstein, here and here, by former attorneys in the Office of Legal Counsel on Judge Kavanaugh's views on presidential authority.

The letters take on a new significance this week, as events draw even more attention to Judge Kavanaugh's views--and how those views might translate if any issue arising out of the Mueller investigation were to reach the Court.

In one letter, former OLCers write on Judge Kavanaugh's critical remarks on United States v. Nixon; in the other, they write on the proliferation of presidential signing statements when Judge Kavanaugh served as staff secretary to President Bush.

From the first (which also captures the gist of the second):

[W]e are troubled by Judge Brett Kavanaugh's apparent commitment to a version of the unitary executive theory of presidential power that holds that the President has total control of actions and decisions of any executive branch official, and that in many cases this control cannot be reviewed by a court of law nor regulated by Acts of Congress.

August 23, 2018 in Courts and Judging, Executive Authority, News, Separation of Powers | Permalink | Comments (0)

Saturday, August 18, 2018

Check it Out: Chicago-Kent Symposium on the Court and American Politics

Check out Chicago-Kent Law Review's outstanding symposium issue, The Supreme Court and American Politics, edited by Profs. Christopher Schmidt and Carolyn Shapiro.

August 18, 2018 in Courts and Judging, News, Scholarship | Permalink | Comments (0)

National Archives Explains What's Up with Kavanaugh's Records

The National Archives and Records Administration this week issued a backgrounder and update on the dispute over Judge Kavanaugh's records, with links to congressional requests and NARA responses. The statement comes at a time when Senate Democrats accuse Republicans of failing to seek and release most of Judge Kavanaugh's records, including, critically, documents related to his time as staff secretary to President Bush (which might shed light on his involvement, if any, in controversial Bush Administration policies).

In the usual course of things, the Chair of relevant congressional committees would request--and receive--all relevant docs from NARA on a nominee under the Presidential Records Act. That's what happened during other, most recent confirmation proceedings, including Justices Sotomayor's, Kagan's, and Gorsuch's. But not here.

NARA explained that it holds "several million pages of paper and email records related to Judge Kavanaugh." Still, Senator Grassley requested only about 900,000 of these (not related to Judge Kavanaugh's time as staff secretary). NARA says that expects to review and release about 300,000 pages by August 20, but can't release the remaining 600,000 pages until later, "by the end of October."

The Senate scheduled Judge Kavanaugh's hearings to begin on September 4.

At the same time, NARA explains that it can't respond to Democrats' requests for Judge Kavanaugh's records (including records relating to Judge Kavanaugh's time as staff secretary), because under the Presidential Records Act "consistent practice has been to respond only to requests from the Chair of Congressional Committees, regardless of which party is in power." Senate Democrats took the extraordinary step of filing a FOIA request, and Senator Schumer this week threatened to sue NARA to get the docs not requested by Senator Grassley, and to get them more quickly.

Finally, NARA explained that "a separate review . . . is also underway." In particular, a Bush Administration representative (William Burck) "requested and received from [NARA] a copy of the White House Counsel's Office and nomination records and has begun to provide copies of those records directly to the Senate Judiciary Committee." Burck is conducting his own review outside of the ordinary NARA process. NARA explained that this

is something that has never happened before. This effort by former President Bush does not represent the National Archives of the George W. Bush Presidential Library. The Senate Judiciary Committee is publicly releasing some of these documents on its website, which also do not represent the National Archives.

August 18, 2018 in Congressional Authority, Courts and Judging, News | Permalink | Comments (0)

Wednesday, August 15, 2018

What's Up with the Impeachment of the West Virginia Supreme Court (yes, the whole court)?

The West Virginia House this week voted to impeach the entire state supreme court. So what's up? Coverage here, NYT, WaPo (and here on the broader trend), and NYmag.com's Dailey Intelligencer.

This isn't the first time West Virginia's courts have been embroiled in constitutional/political disputes. We posted on Caperton here.

August 15, 2018 in Courts and Judging, News, Separation of Powers | Permalink | Comments (0)

Thursday, August 9, 2018

Federal Judge Orders Return of Mother and Daughter Being Deported

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:

it is

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.

SO ORDERED.

[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.

August 9, 2018 in Courts and Judging, Current Affairs, Executive Authority, Fifth Amendment, Jurisdiction of Federal Courts, Procedural Due Process | Permalink | Comments (0)

Wednesday, August 8, 2018

D.C. Circuit Validates Forever-War

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.

August 8, 2018 in Cases and Case Materials, Courts and Judging, Executive Authority, News, Opinion Analysis, Separation of Powers, War Powers | Permalink | Comments (0)

Ninth Circuit Says Cross Border Shooting Case Can Go Forward

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.

August 8, 2018 in Cases and Case Materials, Courts and Judging, Jurisdiction of Federal Courts, News, Opinion Analysis, Separation of Powers | Permalink | Comments (0)