Sunday, May 31, 2015
The D.C. Circuit declined to intervene to reverse a lower court ruling that requires the government to move toward releasing videos of forced-feeding of a Guantanamo detainee. The decision means that the government and attorneys for detainee Abu Wa'el (Jihad) Dhiab will have to work together to agree on redactions and a proposal as to "how the videotapes can be made available to the public most efficiently," pursuant to the earlier district court orders.
Still, it may be some time, if ever, before the videos are released. That's because the redaction process could take a long time, even assuming the government doesn't foot-drag or tie up the process in further litigation. Or: after redaction, there may be nothing of substance to release; or the district court might decline to order release pursuant to the agreed-upon process; or the appeals court might reject release when the case inevitably comes back. In short: this is a victory for those seeking release, but it doesn't mean that we'll see release any time soon.
The case, Dhiab v. Obama, grows out of Dhiab's habeas petition, his hunger strike, and the government's efforts to force-feed him. Dhiab moved to stop the forced-feeding, and, in considering that motion, the district court reviewed 32 classified videotapes of Dhiab's forced-feedings. News media organizations intervened to get copies of the tapes, and the district court ordered the parties (1) to cooperate to redact the tapes and (2) to propose how the videos could be released. The order did not specifically require release.
The government appealed, but the D.C. Circuit declined to hear the merits. The appeals court ruled that it lacked appellate jurisdiction over the case, because the district court's orders weren't final, appealable orders (because they didn't conclusively resolve the matter, and the government still had opportunities under the district court orders to challenge the release). The court also ruled that it didn't have mandamus jurisdiction (for largely the same reasons).
The ruling paves the way for the release of redacted videos. But don't expect that to happen any time soon. Redaction will take some time, and even if the government doesn't deliberately foot-drag, redactions and the joint proposal for release will undoubtedly get tied up in lengthy litigation at the district court, and again on appeal.
Friday, May 29, 2015
The Fifth Circuit this week denied the government's motion for a stay of Judge Hanen's nationwide injunction against the government's deferred action program for parents of Americans and lawful permanent residents, or DAPA. The denial is not a final ruling on the merits (the court wrote that "we do not decide whether the Secretary has the authority to implement DAPA" at this "early stage of the case"); it says only that Texas's challenge to the program is sufficiently likely to succeed to withstand the government's motion for a stay. Still, the ruling presages the likely result on the merits and makes the case look even more likely to end up at the Supreme Court.
The court addressed two issues: Texas's standing to challenge DAPA, and the state's claim that DHS violated the Administrative Procedures Act in failing to use notice-and-comment rulemaking before implementing DAPA.
The court held that Texas had standing, because it'll cost the state some $130 under state law to subsidize each driver license for each DAPA beneficiary. The government argued that Texas could avoid the economic injury by changing its license-fee structure, and that in any event the many economic benefits of the DAPA program would offset the costs for the state.
The court rejected the former argument, saying that the "forced choice" itself is an injury:
The flaw in the government's reasoning is that Texas's forced choice between incurring costs and changing its fee structure is itself an injury: A plaintiff suffers an injury even if it can avoid that injury by incurring other costs. And being pressured to change state law constitutes an injury.
The court rejected the latter argument, saying that the economic offsets are of a different type--and that the injury therefore still stands, notwithstanding any economic benefits that the program may bring to the state.
Because the court said that Texas had standing based on its economic harm, it did not rule on Texas's claim that it had standing based on the district court's "abdication theory" (that Texas had standing because the federal government "abdicated" its "responsibility" to enforce the law in an area where it has exclusive authority).
The court said that Texas easily falls within the zone of interests of the INA, because "Congress permits states to deny many benefits to illegal aliens," and "the states seek only to be heard in the formulation of immigration policy before [the government] imposes substantial costs on them." The court also said that the INA doesn't bar judicial review.
The court held that DAPA amounts to "nonenforcement" of the INA, because it is the "affirmative act of conferring 'lawful presence' [quoting Johnson's memo] on a class of unlawfully present aliens." "[T]hat new designation triggers eligibility for federal and state benefits that would not otherwise be available."
On the merits, the court held that DAPA is not a mere policy statement (as the government argued), but rather is a "substantive" rule that requires notice and comment under the APA. According to the court, that's because DAPA doesn't really offer enforcement discretion, and it's more than internal procedural guidance (it's substantive, according to the court).
As to the nationwide injunction, the court only said that anything short of a nationwide ban would result in a "patchwork system" that would detract from the uniformity that Congress sought in the INA.
Judge Higginson dissented. He argued that "Supreme Court and Fifth Circuit caselaw forecloses plaintiffs' arguments challenging in court this internal executive enforcement guideline," and that "DHS is adhering to the law, not derogating from it." He argued that DAPA amounts to discretionary enforcement guidelines that aren't subject to notice-and-comment rulemaking under the APA.
Wednesday, May 27, 2015
The D.C. Circuit ruled in National Association of Home Builders v. U.S. Fish and Wildlife Service that the plaintiffs lacked standing to challenge settlement terms between the Service and environmental groups that would set designation of endangered species back on pace. The ruling means that the case is dismissed and should put the Service back on course to meet settlement deadlines for designating endangered species.
The case arose out of a ten-year backlog at the Service in designating endangered species. (The backlog grew out of a regulatory designation, "warranted-but-precluded," that allowed the Service to back-burner formal designation of a particular species as endangered. Some 250 species were on the list.) Environmental groups sued to get the Service moving, and the Service entered into settlement agreements designed to put the designation back on pace. But then Homebuilders sued (under the ESA's citizen suit provision and the APA) to stop the implementation of the settlement agreements--to stop the Service from putting endangered species designation back on pace.
The court said that Homebuilders lacked standing. The court ruled that Homebuilders lacked procedural standing (on the theory that the organization and its members didn't have a chance to comment on the settlement agreements), because under circuit law there's no procedural right to comment at the warranted-but-precluded stage. That's because nothing requires notice-and-comment at this stage, nothing gives Homebuilders a statutory right to sue, and Homebuilders couldn't show that the procedures were designed to protect its interests.
The court also ruled that Homebuilders couldn't identify a particular harm. Homebuilders sued to stop the settlement agreement, not to stop a designation of any particular species. And the court said that the settlement agreement simply required the Service to make a decision (one way or the other) within a timeline, and not necessarily to designate any particular species as endangered.
Finally, the court rejected Homebuilders' claim that the settlement would harm members, because members put resources into protected certain species, and designation would moot those efforts. The court said that these efforts were dictated by state and local law, or by members' independent efforts (designed to persuade the Service that a particular species didn't need protection, because it was already protected). Because the efforts weren't Service-mandated, they weren't "fairly traceable" to the Service's challenged actions.
In its divided opinion in Children First Foundation v. Fiala, the Second Circuit held that the Commissioner of Motor Vehicle's rejection of "Choose Life" license plates for the state's specialty plate program is constitutional. Judge Pooler, joined by Judge Hall, reversed the district judge's conclusion that the rejection violated the First Amendment.
The Second Circuit's divided opinion enters the fray of what might be called the developing doctrine of license plates, be they state-mandated, vanity, or as here, "specialty" plates issued by the state as a means of raising revenue. As we've discussed, the Fourth Circuit recently held that North Carolina's provision of a "Choose Life" specialty license plate violated the First Amendment; the New Hampshire Supreme Court invalidated a vanity license plate regulation requiring "good taste"; a Michigan federal district judge similarly invalidated a refusal of specific letters on a vanity plate; and on remand from the Tenth Circuit, the design of the Oklahoma standard license plate was upheld.
The progenitor of this doctrine is the classic First Amendment case of Wooley v. Maynard (1977) involving compelled speech. This Term the Court heard oral arguments in Walker v. Texas Sons of Confederate Veterans; a divided Fifth Circuit had held that the rejection of the Sons of Confederate Veterans plate (featuring the Confederate flag) was a violation of the First Amendment as impermissible content and viewpoint discrimination. The Second Circuit stayed the mandate of its decision pending the outcome of Walker.
The specialty license plate litigation involves the intersection of a number of First Amendment doctrines. As Judge Pooler's opinion in Children First Foundation expressed its holding:
We conclude that the content of New York’s custom license plates constitutes private speech [rather than government speech] and that the plates themselves are a nonpublic forum. CFF’s facial challenge fails because New York’s custom plate program did not impermissibly vest the DMV Commissioner with unbridled discretion in approving custom plate designs. Furthermore, that program, as applied in this case, was reasonable and viewpoint neutral, which is all that the First Amendment requires of restrictions on expression in a nonpublic forum.
Judge Pooler's well-structured opinion supports this conclusion. First, the court considers whether the license plate is government speech or private speech. If the speech is government speech, then the First Amendment has little application. (Recall that this was the position of the dissenting judge in the Fifth Circuit's decision in Sons of Confederate Veterans). Agreeing with other circuits, the court reasons that an application of Pleasant Grove City, Utah v. Summum (2009) and Johanns v. Livestock Marketing Ass’n (2005) leads to " little difficulty concluding that such an observer would know that motorists affirmatively request specialty plates and choose to display those plates on their vehicles, which constitute private property."
bringing to justice individuals who have attacked police officers cannot reasonably compare—either by its very nature or by the level of contentiousness that surrounds it—to the issue of abortion. With respect to the decision to issue a “Union Yes” plate, while the myriad issues pertaining to organized labor in the United States are social and political in nature, there is no basis to conclude that the Department failed to apply the policy against creating plates that touch upon contentious political issues as opposed to having applied the policy and merely reaching a different result than it did with the “Choose Life” plate.
May 27, 2015 in Abortion, Courts and Judging, Current Affairs, Due Process (Substantive), Equal Protection, First Amendment, Opinion Analysis, Reproductive Rights, Speech, Supreme Court (US) | Permalink | Comments (0) | TrackBack (0)
Tuesday, May 26, 2015
The United States Supreme Court granted certiorari today in Foster v. Humphrey to the Georgia Supreme Court denying post-conviction relief.
According to the petition, in 1987, an all-white jury convicted Timothy Tyrone Foster, a "poor, black, intellectually compromised eighteen year old" of the murder of an elderly white woman. At trial, one black potential juror was removed for cause, and the prosecutors removed all four of the remaining black prospective jurors by peremptory strike, and proffered race-neutral reasons when defense counsel raised a challenge under the then-recent case of Batson v. Kentucky (1986). The judge rejected defense counsel's argument that the race-neutral reasons were pretexual and denied the Batson challenge. The Georgia courts affirmed.
Almost twenty years later, pursuant to a request under the state open records act, Foster gained access to the prosecution team's jury selection notes, which included highlighting the black potential jurors (image at right), circling the word "black" as an answer to the race question on the juror questionnaire, identifying the black potential jurors as B#1, B#2, and B#3 in the notes, and a draft affidavit by the prosecution investigator stating "“if we had to pick a black juror then I recommend that [Marilyn] Garrett be one of the jurors; with a big doubt still remaining.” (The affidavit was originally submitted to the court with all mentions of race excised).
In the post-conviction proceeding, the court held that "[t]he notes and records submitted by Petitioner fail to demonstrate purposeful discrimination on the basis that the race of prospective jurors was either circled, highlighted or otherwise noted on various lists." The Georgia Supreme Court declined review.
In granting certiorari, the United States Supreme Court could certainly agree with the Georgia courts and simply affirm. Assuming the Court granted certiorari because of some disagreement with the conclusions, the Court might take a broader approach. According to the petition in Foster, the prosecution "proffered a combined forty reasons for striking" the four black potential jurors. Because there are almost always "neutral" reasons for exercising a peremptory challenge - - - given that it can be based on essentially a "hunch" - - - proving racial motivation and discrimination can be difficult. The Court has the opportunity to revisit Batson and the problem of distinguishing between race-neutral and pretextual reasons, perhaps providing a more workable and fair rule.
May 26, 2015 in Courts and Judging, Criminal Procedure, Equal Protection, Federalism, First Amendment, Fundamental Rights, Habeas Corpus, Race, Supreme Court (US) | Permalink | Comments (0) | TrackBack (0)
Monday, May 18, 2015
The United States Supreme Court's opinion in City and County of San Francisco v. Sheehan arises from an incident in which two police officers shot Teresa Sheehan, a woman suffering from a schizoaffective disorder who was living in a group home for those with mental illness.
The seemingly primary issue upon which certiorari was granted was whether the Americans with Disabilities Act, ADA, 42 U. S. C. §12132, required law enforcement officers to "provide accommodations to an armed, violent, and mentally ill suspect in the course of bringing the suspect into custody.” The Court, in an opinion by Justice Alito, found fault with the attorneys litigating on behalf of San Francisco and dismissed this first question presented as improvidently granted. In a concurring and dissenting opinion, Justice Scalia, joined by Justice Kagan, also faulted the attorneys for San Francisco, noting that the Petition for Certiorari
assured us (quite accurately), and devoted a section of its argument to the point, that "The Circuits Are In Conflict On This Question.”
But, Justice Scalia continued,
Imagine our surprise, then, when the petitioners’ principal brief, reply brief, and oral argument had nary a word to say about that subject.
Instead, the petitioners argued that "the issue is not (as the petition had asserted) whether Title II applies to arrests of violent, mentally ill individuals, but rather how it applies under the circumstances of this case, where the plaintiff threatened officers with a weapon."
We were thus deprived of the opportunity to consider, and settle, a controverted question of law that has divided the Circuits, and were invited instead to decide an ADA question that has relevance only if we assume the Ninth Circuit correctly resolved the antecedent, unargued question on which we granted certiorari.
Scalia had especially harsh words for the attorneys for San Francisco, casting aspersion on their integrity:
Why, one might ask, would a petitioner take a position on a Circuit split that it had no intention of arguing, or at least was so little keen to argue that it cast the argument aside uninvited? The answer is simple. Petitioners included that issue to induce us to grant certiorari.
Scalia states that the Court would never have granted certiorari on the first question as it was argued in the briefs and would certainly have never granted certiorari on the"fact-bound" qualified immunity issue. Scalia, with Kagan, dissented from the Court's holding on the qualified immunity issue:
I would not reward such bait-and-switch tactics by proceeding to decide the independently “uncertworthy” second question. And make no mistake about it: Today’s judgment is a reward. It gives the individual petitioners all that they seek, and spares San Francisco the significant expense of defending the suit, and satisfying any judgment, against the individual petitioners. I would not encourage future litigants to seek review premised on arguments they never plan to press, secure in the knowledge that once they find a toehold on this Court’s docket, we will consider whatever workaday arguments they choose to present in their merits briefs.
The Court, absent Justice Breyer who did not participate in the case, did "reward" San Francisco by finding that the police officers were protected by qualified immunity: "no precedent clearly established that there was not 'an objective need for immediate entry' here." The somewhat particular facts - - - the situation involved an entry and then a re-entry of Sheehan's room - - - nevertheless involved a "straightforward" and exceedingly brief qualified immunity analysis.
And a reversal of the Ninth Circuit.
While the attorneys for the City and County of San Francisco may have endured a scolding, Scalia is correct that the Court's decision is ultimately a reward.
In its opinion in Lash v. Lemke, the Court of Appeals for the District of Columbia Circuit affirmed the grant of a summary judgment in favor of law enforcement officers in a suit filed by an Occupy D.C. protestor for a violation of Fourth and First Amendment rights.
Judge Griffith, writing for the court, and joined by Chief Judge Garland and Judge Kavanaugh, described the arrest of Ryan Lash at the Occupy DC encampment in January 2012 by United States Park Police Officers Tiffany Reed, Frank Hilscher, and Jennifer Lemke:
Officer Tiffany Reed, who had been following Lash as he hurried through the tents, stepped up behind Lash and seized his arms from the rear. Lash pulled his arms away and held them in front of his body, continuing to walk away as he insisted that he was innocent. Reed again sought to restrain Lash from behind and Lash again pulled his arms away from her. Reed then took hold of Lash’s left arm while Hilsher approached and seized his right arm. Lemke approached at the same time and drew her Taser from its holster, holding it ready.
Though Lash’s arms were now held by two different officers, he continued to struggle to keep his feet while Reed and Hilsher worked for several moments to gain control of him. Lemke, standing nearby and behind the trio, fired her Taser into Lash’s lower back. He fell to the ground, and the officers handcuffed him.
Lash argued that Lemke’s use of the Taser constituted excessive force in violation of Lash’s Fourth Amendment rights and was motivated by retaliatory animus against his protected expression in violation of his First Amendment rights. The defendant officers raised qualified immunity and the district judge granted summary judgment in their favor.
Relying on Ashcroft v. al- Kidd (2011), the DC Circuit Court of Appeals concluded that the "claimed right, whether it exists or not, is by no means 'clearly established.'" In so doing, however, the court acknowledged that this inquiry cannot be abstract, but must occur "in the specific context of the case." This "context," the court further acknowledged, depended on whether Lash was "resisting arrest."
This would seemingly make summary judgment - - - requiring no genuine disputes of material fact - - - difficult, but the court interestingly relied on multiple video-recordings of the "episode" which rendered Lash's description a "visible fiction."
Here is one of the videos of the incident:
The court further rejected Lash's arguments regarding the video as conclusive:
Lash argues that we may not rely on the videorecordings in this way because they “cannot fully convey everything that people at the scene felt” such as “how much force one person is exerting” or “the level of detail a person will experience in the moment.” This is no argument at all. The Supreme Court has explained that we determine whether a right is clearly established based on the “objective legal reasonableness of an official’s acts,” protecting officers from liability unless “it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted.” Subjective factors like those Lash identifies here cannot shed any light on whether a reasonable officer in these circumstances would have believed her actions violated Lash’s clearly established rights. It is that objective test, not Lash’s knowledge or Lemke’s thoughts, that determines the scope of qualified immunity. The videorecordings in the record provide us all we need to determine what a reasonable officer would have known at the scene. And we do not hesitate to conclude from the videorecording that there is “no genuine issue of material fact” regarding Lash’s active resistance.
Given the increased use of videorecordings in cases against police officers, the court's discussion of 'what the video shows' might be expected to be used in other cases.
Here, however, the court concludes that Lash was "actively resisting arrest," and thus there was no clearly established right not be subject to a Taser.
As to the First Amendment claim, the court quickly found that Lash did not show the officer had "retaliatory animus."
Sunday, May 17, 2015
Judge Reggie B. Walton (D.D.C.) ruled in American Freedom Law Center v. Obama that the plaintiffs lacked standing to challenge the federal government's "transitional policy" and "hardship exemption," which permit individuals temporarily to maintain health insurance coverage through plans that are not compliant with the general requirements of the Affordable Care Act.
The ruling deals a blow to opponents of the government's exemption--but a fully predictable one.
The plaintiffs' theory of standing turned on market forces driving up an AFLC staff member's premiums. It goes like this: When the federal government temporarily exempted certain individuals from enrolling in non-compliant plans (in reaction to the political blow-back after many folks received notices that their insurance would be cancelled and changed to comply with the ACA), this depleted the pool of individuals enrolling in ACA-compliant plans; and that drove up the costs of those plans. Plaintiff Muise was enrolled in such a plan, and, indeed, saw his premiums rise.
In short, Muise argued that his premiums rose in his compliant plan because the government's exemption meant that fewer people enrolled in compliant plans.
Judge Walton disagreed. He noted that insurance premiums can fluctuate for any number of reasons, not just the government's exemption, and that the plaintiff's theory suffered from other defects in the causal chain. Quoting from the government's motion to dismiss:
[the] [p]laintiffs have not established any of the links in the causal chain . . . that would be necessary to their apparent theory of standing to challenge this particular exemption. [The] [p]laintiffs have not alleged, for example, that there are individuals in Michigan with cancelled policies; that any such individuals consider the other policies available to them to be unaffordable; that any such individuals have availed themselves of [the defendants'] "hardship" exemption for consumers with cancelled policies; that, but for this exemption, any such individual would have purchased "minimum essential coverage" . . .; that in purchasing such coverage, that individual would have entered the same risk pool as these [p]laintiffs; and that such individual's addition to the risk pool would have lowered [the] [p]laintiffs' premiums.
The ruling is consistent with similar rulings in other district courts.
May 17, 2015 in Cases and Case Materials, Courts and Judging, Executive Authority, Jurisdiction of Federal Courts, News, Opinion Analysis, Separation of Powers, Standing | Permalink | Comments (0) | TrackBack (0)
Saturday, May 16, 2015
A three-judge panel of the D.C. Circuit ruled in National Association of Home Builders v. EPA that a development association lacked standing to challenge the EPA's determination that two reaches of the Santa Cruz River are traditional navigable waters, subject to federal regulation. The court said that the plaintiff was barred by collateral estoppel, based on the same court's earlier ruling against the same plaintiff lodging the same complaint.
But two judges argued that the earlier ruling was flat wrong, rearguing an issue that the court wrangled over just three years ago. (The full D.C. Circuit denied en banc review of the earlier ruling in 2012.)
Home Builders filed its original lawsuit in 2009, challenging the determination by the EPA and Army Corps of Engineers that two reaches of the Santa Cruz River were traditional navigable waterways. That determination requires any party that wishes to dredge or discharge into the river, or any waterway with a "significant nexus" to the river, to get a federal permit. Parties who don't know whether they need a permit can seek a Jurisdictional Determination from the Corps.
Home Builders sued to stop the designation, on the theory that its members would have to choose between applying for a permit and facing enforcement penalties. The D.C. Circuit dismissed the case, holding that Home Builders lacked standing unless and until the agencies applied the determination to a particular property:
the owner or developer of the property suffers no incremental injury in fact from the [determination] and any challenge to it is therefore premature. In the meanwhile, [Home Builders'] members face only the possibility of regulation, as they did before the [determination]: Any watercourse on their property may (or may not) turn out to be subject to [Clean Water Act] dredging permit requirements because of a nexus (or not) with the two Santa Cruz reaches.
Home Builders came back in this latest suit with additional allegations designed to fill the standing gaps in its original case. But the D.C. Circuit said they weren't enough: Home Builders' standing in the second case has exactly the same problems it did in the first.
The ruling means that Home Builders, and its members, have to wait until later in the process--until the agencies determine that particular land is covered--until they can challenge the original designation of the Santa Cruz.
But two judges on the panel argued that the first ruling was flat wrong. Judges Silberman and Sentelle wrote that any regulated party has standing to challenge an agency rule:
And the law is rather clear; any party covered by an agency's regulatory action has standing to challenge a rule when it issues--it certainly need not wait until a government agency seeks to enforce a rule. That proposition is so clearly established it is beyond question. Nor do parties have to wait until the government takes preliminary steps before enforcing--clearing its throat, so to speak. It is only necessary for a potential litigant to show that it is part of the regulated class and its behavior is likely affected by the government's action.
Wednesday, May 13, 2015
The Seventh Circuit ruled in Armstrong v. Daily that a prosecutor and two crime lab technicians were not entitled to qualified immunity after they bungled an investigation that resulted in a faulty trial and foiled the plaintiff's attempts to demonstrate his innocence. In all, this top-to-bottom outrageous investigation put a wrongfully convicted plaintiff behind bars for 29 years.
Ralph Armstrong brought the civil rights case against prosecutor John Norsetter and state lab technicians Karen Daily and Daniel Campbell. Armstrong was convicted of rape and murder in 1981 and sentenced to life plus 16 years. The prosecution had two key pieces of physical evidence against him: drug paraphernalia found at the crime scene that could have shown who was in the victim's apartment the evening she was murdered; and a bathrobe belt used as the murder weapon.
The drug paraphernalia was never examined; instead, it was tossed in a trash bag, left in an office storage locker at the police station, and eventually lost. The bathrobe belt was tested crudely for DNA in 1980, which didn't rule out Armstrong. (The prosecution also relied on the identification by an eyewitness who Norsetter had hypnotized. Armstrong challenged this evidence in a prior case, where he lost his habeas claim at the Seventh Circuit.)
Armstrong later presented new DNA testing definitively excluding him and, in 2005, won a new trial through the state courts. A state court also ordered the prosecution to inform the defense of future DNA tests and to allow the defense to be present for any handling of the evidence. Armstrong stayed in prison.
Norsetter then ordered new testing of the belt, without telling Armstrong (despite the court order). Daily and Campbell conducted testing that consumed the entire DNA sample from the belt. The results could not confirm or eliminate Armstrong as the source, because the test they used could not distinguish between men with the same father. (This is important, because Armstrong's brother, who died in 2005, earlier confessed to the crime.) Norsetter never disclosed to Armstrong or the technicians that Armstrong's brother might be a suspect.
After Armstrong's attorneys learned that the prosecution's secret testing destroyed the evidence, they moved to dismiss charges against him. The court found that the prosecution acted in bad faith and dismissed the charges because the destruction of that evidence had irreparably compromised his right to a fair trail. Armstrong remained in prison for the three years between the destruction of the evidence in 2006 and the court's dismissal in 2009.
Armstrong then sued Norsetter, Daily, and Campbell, arguing that they violated his civil rights. Norsetter claimed absolute immunity as a prosecutor for the destruction of DNA evidence and qualified immunity for the destruction of the drug paraphernalia; Daily and Campbell claimed qualified immunity. The district court denied these claims, except as to Norsetter's involvement in the destruction of DNA evidence.
The Seventh Circuit affirmed. As to Norsetter, it ruled that Norsetter did not enjoy absolute immunity for his investigatory acts, and that he did not enjoy qualified immunity because he acted in bad faith in allowing the destruction of the drug paraphernalia and DNA sample. As to Daily and Campbell, the court said that
we must assume that Daily and Campbell's actions caused Armstrong to suffer a loss of liberty as he languished in prison for three more years after Daily said he was excluded by the earlier DNA tests and after the last sample had been destroyed in the [later] test of the newly discovered stain.
The court rejected the defendant's arguments that a state tort action could have provided Armstrong a remedy sufficient to satisfy federal due process under Parratt v. Taylor. In a lengthy discussion, the court said that the argument was based on a fundamental mis-reading of Parratt. In short:
When Parratt and its progeny are read carefully, then, and are read against the broader sweep of due process jurisprudence, they do not bar Armstrong's claims based on deprivation of his liberty through deliberate destruction of exculpatory evidence. More specifically, Parratt does not bar Armstrong's claims because the defendants' conduct was not "random and unauthorized" and the available state remedies are not adequate.
The court recognized "some disagreement among the courts about the conditions for obtaining a civil remedy for destruction of exculpatory evidence, those disagreements do not support a qualified immunity defense."
Judge Flaum argued that Norsetter should get qualified immunity, because his destruction of the drug paraphernalia was negligent, not "in bad faith."
Thursday, May 7, 2015
District Judge Rejects Challenges to Requirement that Government Contractors Post Employee Rights Notice
In an opinion today in National Association of Manufacturers (NAM) v. Perez, Judge Amit Mehta of the District of Columbia District Court rejected various challenges to the Department of Labor's so-called "Posting Rule," a regulation requiring, as a condition of nearly all federal contracts, that contractors post workplace notices informing their employees of their rights under the National Labor Relations Act. The "Posting Rule" is derived from President Obama's Executive Order 13496, promulgated in January 2009 pursuant to the Procurement Act.
The central constitutional challenge is that the "Posting Rule" is compelled speech and violates the First Amendment as an unconstitutional condition. The court's first task was to determine the relevance of a NAM v. NLRB, 717 F.3d 947 (D.C. Cir. 2013), overruled in part by Am. Meat Inst. v. U.S. Dep’t of Agric., 760 F.3d 18 (D.C. Cir. 2014). The judge concluded that while the posting at issue in NAM was "nearly identical," that case was not a First Amendment one - - - although it drew on some First Amendment principles - - - but an interpretation of §8(c) of the NLRA which prohibits the expression of views, argument, or opinions as constituting an unfair labor practice.
Instead, the challenge here was analogous to the Supreme Court's decision in Rumsfeld v. FAIR involving the Solomon Amendment directed at law schools.
There is little material distinction between FAIR and this case. The facts differ, but the First Amendment analysis and outcome are the same. Like the Solomon Amendment, the Posting Rule is a “far cry” from the government-mandated speech deemed unconstitutional in Barnette and Wooley. Requiring an employer to post government speech about labor rights is “simply not the same as forcing a student to pledge allegiance, or forcing a Jehovah’s Witness to display the motto ‘Live Free or Die,’ and it trivializes the freedom protected in Barnette and Wooley to suggest that it is.”
Moreover, the Posting Rule does not require a contractor to speak at all. Rather, the contractor is required to host government speech as a condition of receipt of a federal contract. That, of course, presents a contractor with a choice—agree to post the Notice or forgo federal contracting. But that choice is no different than the one presented by the Solomon Amendment— either accommodate a military recruiter or forgo federal funds.
Additionally, the Posting Rule does not interfere with the contractor’s ability to convey a different message. A contractor can still express its own views or engage in lawful activities to discourage unionization. Indeed, nothing in the rule prevents a contractor from creating its own posting and placing it next to the Department of Labor-drafted Notice, so as to make clear that the Notice does not reflect the contractor’s own views and its display is government mandated. *** A contractor’s speech is thus not “affected by the speech it [is] forced to accommodate.”
Nor are employees likely to believe that the Notice is their employer’s speech.
[citations omitted]. The court rejected NAM's attempt to distinguish FAIR because the speech here is a “slanted list of rights that unfairly promotes unionization while pointedly omitting a host of other critical employee rights,” noting even if the court could determine the meaning of "slanted," it is well settled that the government may make content-based choices about its own speech.
The court rejected NAM's arguments regarding preemption, as well as its statutory and administrative law arguments. It therefore entered summary judgment in favor of the government.Given the vigor with which NAM has litigated similar issues, it will most likely appeal. However, recently appointed Judge Mehta has authored a closely reasoned opinion that should withstand review.
In its lengthy, well-reasoned, and unanimous opinion in American Civil Liberties Union (ACLU) v. Clapper, the Second Circuit today concluded that NSA's bulk telephony metadata collection is not authorized by §215 of the PATRIOT Act, 50 USC §1861(b)(2)(A). After hearing oral arguments last September, the panel reversed the district court's opinion that had rejected both the statutory and constitutional challenges to the scheme. Recall that this widespread collection has been controversial since the program was first revealed through information obtained by Edward Snowden; we've additionally discussed the issues here, here, and here.
The Second Circuit, in the opinion authored by Gerard Lynch, did agree with the district judge that the ACLU plaintiffs had standing to challenge the collection of call records. The court stated that "the government’s own orders demonstrate that appellants’ call records are indeed among those collected as part of the telephone metadata program." The court rejected the government's contention that any alleged injuries depend on the government's reviewing the information collected rather than simply collecting it: the collection is [challenged as] a seizure and the Fourth Amendment prohibits both searches and seizures. The court distinguished Amnesty International v. Clapper in which the United States Supreme Court's closely divided opinion concluded that the alleged standing was based on a "speculative chain of possibilities." Instead:
appellants’ alleged injury requires no speculation whatsoever as to how events will unfold under § 215 – appellants’ records (among those of numerous others) have been targeted for seizure by the government; the government has used the challenged statute to effect that seizure; the orders have been approved by the FISC; and the records have been collected.
The panel likewise held that the ACLU organizations have standing to assert a First Amendment violation regarding its own and its members' rights of association.
However, the court did not rule on the Fourth and First Amendment claims explicitly, although its conclusion regarding §215 occurs in the shadow of the constitutional issues, or as the court phrases it: "The seriousness of the constitutional concerns" has "some bearing on what we hold today, and on the consequences of that holding."
What the court does hold is that "the telephone metadata program exceeds the scope of what Congress has authorized and there violates §215." After a discussion of the program and §215, it first considers the government's arguments that the judiciary is precluded from considering the issue. The court interestingly observes that judicial preclusion here would "fly in the face of the doctrine of constitutional avoidance."
[I]t would seem odd that Congress would preclude challenges to executive actions that allegedly violate Congress’s own commands, and thereby channel the complaints of those aggrieved by such actions into constitutional challenges that threaten Congress’s own authority. There may be arguments in favor of such an unlikely scheme, but it cannot be said that any such reasons are so patent and indisputable that Congress can be assumed, in the face of the strong presumption in favor of APA review, to have adopted them without having said a word about them.
The court likewise held that there was no implicit preclusion.
On the merits of the §215 challenge, the court essentially found that the government's interpretation of "relevant" was too broad. The court noted that both parties relied on the grand jury analogy, supported by the statute's language and legislative history. Yet for the court, the government's argument faltered on this very ground:
Moreover, the court relies on the Privacy and Civil Liberties Oversight Board (PLCOB) Report regarding the overbreadth, noting that "counterterrorism in general" is not sufficiently narrow. Further, the court states that the government's interpretation reads the "investigation" language of §215 out of the statute, and even more specifically, §215's language "relevant to an authorized investigation (other than a threat assessment)."
Search warrants and document subpoenas typically seek the records of a particular individual or corporation under investigation, and cover particular time periods when the events under investigation occurred. The orders at issue here contain no such limits. The metadata concerning every telephone call made or received in the United States using the services of the recipient service provider are demanded, for an indefinite period extending into the future. The records demanded are not those of suspects under investigation, or of people or businesses that have contact with such subjects, or of people or businesses that have contact with others who are in contact with the subjects – they extend to every record that exists, and indeed to records that do not yet exist, as they impose a continuing obligation on the recipient of the subpoena to provide such records on an ongoing basis as they are created. The government can point to no grand jury subpoena that is remotely comparable to the real‐time data collection undertaken under this program.
May 7, 2015 in Courts and Judging, Criminal Procedure, Current Affairs, First Amendment, Foreign Affairs, Fourth Amendment, Interpretation, Opinion Analysis, Speech, Standing, State Secrets | Permalink | Comments (0) | TrackBack (0)
The en banc Eleventh Circuit ruled this week in United States v. Davis that a court order, pursuant to the Stored Communications Act, compelling the production of a telephone company's business records containing information as to cell tower locations (and linking the defendant's calls to those towers) did not violate the Fourth Amendment.
The ruling reverses an earlier panel decision, which held that the order violated the Fourth Amendment. The panel nevertheless affirmed the conviction, however, based on the good-faith exception to the exclusionary rule.
The ruling tests traditional Fourth Amendment rules against technological advances--and their ability to reveal vast amounts of highly personal data. The court applied a traditional Fourth Amendment approach, but invited Congress to revisit the appropriate balance between technology and privacy in cases like this.
The defendant, Quartavious Davis, was charged with several counts for his role in a string of robberies. At Davis's trial, the prosecution introduced telephone records from Metro PCS, obtained through an earlier court order, showing the telephone numbers for each of Davis's calls and the number of the cell tower that connected each call. An officer-witness then connected the location of the cell towers with the addresses of the robberies, placing Davis near the robbery locations around the time of the robberies. (The evidence showed the location of the cell towers that connected Davis's calls, but not the precise location of Davis or his phone.) Davis was convicted and sentenced to 1,941 months in prison.
The court order for the records was based on the Stored Communications Act. The SCA provides that a federal or state governmental entity may require a telephone service provider to disclose "a record . . . pertaining to a subscriber to or a customer of such service (not including the contents of communications)" if "a court of competent jurisdiction" finds "specific and articulable facts showing that there are reasonable grounds to believe" that the records sought "are relevant and material to an ongoing criminal investigation." This does not require a showing of probable cause. Davis argued that the order violated the Fourth Amendment.
The Eleventh Circuit rejected Davis's arguments. The court wrote that the SCA actually provides greater privacy protections than a routinely issued subpoena to third parties for a wide variety of business records (credit card statements, bank statements, and the like). This, it said, was no different. It also wrote that Davis claimed no trespass, and that he had no reasonable expectation of privacy in the location of cell towers to which he voluntarily sent call signals, or in the business records of his third-party provider. The court thus concluded that there was no "search."
But even if there were a search, the court held that it was reasonable, balancing the government interests against Davis's expectations of privacy. It said that the government had compelling interests in investigating and preventing crimes, and that Davis had, at most, a diminished expectation of privacy.
Judges Martin and Jill Pryor dissented, arguing that technological advances, "which threaten to cause greater and greater intrusions into our private lives," threaten "to erode our constitutional protections."
Wednesday, April 29, 2015
In its 5-4 opinion in Williams-Yulee v. The Florida Bar, the Court concluded that Florida's Code of Judicial Conduct 7C(1) prohibiting the personal solicitation of campaign funds by judicial candidates does not violate the First Amendment.
From the oral arguments, it did seem as if the opinion would be closely divided, but it was less predictable that Chief Justice Roberts would be writing for the majority upholding Florida's Canon7C(1). In the majority opinion, joined by Justices Breyer, Sotomayor, and Kagan in full, and by Ginsburg except as to part II, Roberts began:
Our Founders vested authority to appoint federal judges in the President, with the advice and consent of the Sen- ate, and entrusted those judges to hold their offices during good behavior. The Constitution permits States to make a different choice, and most of them have done so. In 39 States, voters elect trial or appellate judges at the polls. In an effort to preserve public confidence in the integrity of their judiciaries, many of those States prohibit judges and judicial candidates from personally soliciting funds for their campaigns. We must decide whether the First Amendment permits such restrictions on speech.
We hold that it does. Judges are not politicians, even when they come to the bench by way of the ballot. And a State’s decision to elect its judiciary does not compel it to treat judicial candidates like campaigners for political office. A State may assure its people that judges will apply the law without fear or favor—and without having personally asked anyone for money. We affirm the judgment of the Florida Supreme Court.
However, writing only for a plurality, Chief Justice Roberts, relying on Republican Party of Minnesota v. White (2002), held that a "State may restrict the speech of a judicial candidate only if the restriction is narrowly tailored to serve a compelling interest." The plurality rejected the Florida Bar's argument, supported by several amici, that the Canon should be subject to the more permissive standard of Buckley v. Valeo (1976) requiring that the law be “closely drawn” to match a “sufficiently important interest.” It concluded that the “closely drawn” standard is a "poor fit" for this case which is a claimed violation of a right to free speech rather than a claimed violation of “freedom of political association.”
Justice Ginsburg, concurring, reiterated her dissent in Republican Party of Minnesota v. White regarding the standard of review, and emphasized that the Court's "recent campaign-finance decisions, trained on political actors, should not hold sway for judicial elections," specifically discussing Citizens United (2010) and McCutcheon (2014). Justice Breyer, who joined the Chief Justice's opinion in full, nevertheless wrote briefly regarding the standard of review, reiterating his previous statements that he views "this Court’s doctrine referring to tiers of scrutiny as guidelines informing our approach to the case at hand, not tests to be mechanically applied."
Despite the highest scrutiny, however, Chief Justice Roberts's opinion for the Court declared that
Canon 7C(1) advances the State’s compelling interest in preserving public confidence in the integrity of the judiciary, and it does so through means narrowly tailored to avoid unnecessarily abridging speech. This is therefore one of the rare cases in which a speech restriction withstands strict scrutiny.
The Court found that “protecting the integrity of the judiciary” and “maintaining the public’s confidence in an impartial judiciary” were both compelling governmental interests. (The Court did not discuss a specific interest of lawyers or their clients in judicial integrity). As to the narrow tailoring, the Court rejected the "underinclusive" argument - - - essentially that judicial candidates could indirectly solicit campaign funds - - - by noting that while underinclusivity may raise a "red flag," there is no "freestanding 'underinclusiveness limitation.'” Here, the Court concluded that
personal solicitation by judicial candidates implicates a different problem than solicitation by campaign committees. However similar the two solicitations may be in substance, a State may conclude that they present markedly different appearances to the public. Florida’s choice to allow solicitation by campaign committees does not undermine its decision to ban solicitation by judges.
There are three dissenting opinions by the Justices: Scalia, joined by Thomas; Kennedy, and Alito. As the author of Caperton v. Massey, on which the Court partially relies for its compelling governmental interest in judicial integrity, Kennedy's opinion is perhaps most noteworthy. (And recall that Chief Justice Roberts dissented in Caperton). Caperton, based in due process rather than free speech, is uncited in Kennedy's concurring opinion, which focuses on the First Amendment:
This separate dissent is written to underscore the irony in the Court’s having concluded that the very First Amendment protections judges must enforce should be lessened when a judicial candidate’s own speech is at issue. It is written to underscore, too, the irony in the Court’s having weakened the rigors of the First Amendment in a case concerning elections, a paradigmatic forum for speech and a process intended to protect freedom in so many other manifestations.
At the crux of Kennedy's dissent, as the other dissents, is the similarity of judicial elections to political elections. The distinction - - - or lack thereof - - - between judicial and other elections is the linchpin on which the differing views of the case pivot. Chief Justice Roberts ends the Court's opinion with an originalist reflection on that distinction:
The desirability of judicial elections is a question that has sparked disagreement for more than 200 years. Hamilton believed that appointing judges to positions with life tenure constituted “the best expedient which can be devised in any government to secure a steady, upright, and impartial administration of the laws.” The Federalist No. 78, at 465. Jefferson thought that making judges “dependent on none but themselves” ran counter to the principle of “a government founded on the public will.” 12 The Works of Thomas Jefferson 5 (P. Ford ed. 1905). The federal courts reflect the view of Hamilton; most States have sided with Jefferson. Both methods have given our Nation jurists of wisdom and rectitude who have devoted themselves to maintaining “the public’s respect . . . and a reserve of public goodwill, without becoming subservient to public opinion.” Rehnquist, Judicial Independence, 38 U. Rich. L. Rev. 579, 596 (2004).
It is not our place to resolve this enduring debate. Our limited task is to apply the Constitution to the question presented in this case. Judicial candidates have a First Amendment right to speak in support of their campaigns. States have a compelling interest in preserving public confidence in their judiciaries. When the State adopts a narrowly tailored restriction like the one at issue here, those principles do not conflict. A State’s decision to elect judges does not compel it to compromise public confidence in their integrity.
Tuesday, April 28, 2015
The Court today heard oral arguments in two parts in the consolidated cases of Obergefell v. Hodges on certiorari from the Sixth Circuit opinion which had created a split in the circuits on the issue of the constitutionality of same-sex marriage bans. There have been a record number of amicus briefs filed in the cases highlighting the interest in the case.
For oral argument on the first certified question - - -does the Fourteenth Amendment require a state to license a marriage between two people of the same sex? - - - Mary Bonauto argued for the Petitioners; Solicitor Donald Verrilli argued for the United States as amicus curiae supporting Petitioners; and John Bursh, as Special Assistant Attorney for Michigan argued for Respondents.
For oral argument on the second certified question - - - does the Fourteenth Amendment require a state to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out-of-state? - - -Douglas Hallward-Driemeier argued for Petitioners and Joseph Whalen, Associate Solicitor General of Tennessee, argued for Respondents.
The Court and the advocates acknowledged that the second question is only reached if the first question is answered in the negative: Justice Ginsburg and Justice Kagan both posited this principle with Hallward-Driemeier and Whalen, respectively, agreeing. Chief Justice Roberts noted that" we only get to the second question if you've lost on that point already, if we've said States do not have to recognize same-sex marriage as a marriage," and later raised the issue of whether the second question made practical sense:
It certainly undermines the State interest that we would, assuming arguendo, have recognized in the first case, to say that they must welcome in their borders people who have been married elsewhere. It'd simply be a matter of time until they would, in effect, be recognizing that within the State.
The themes of the oral arguments held no surprising issues:
Is a same-sex marriage decision by the Court premature? Interestingly, Justice Kennedy pointed out that it is "about the same time between Brown and Loving as between Lawrence and this case. It's about 10 years."
Should it be the Court or the states that should decide? The question of the proper role of judicial review has long preoccupied the courts in the context of same-sex marriage. Justice Scalia raised this issue several times, but when John Bursh raised it on behalf of Michigan, Justice Kagan responded that "we don't live in a pure democracy; we live in a constitutional democracy."
Is the race analogy apt? Bursch distinguished Loving (as well as Turner v. Safley and Zablocki v. Redhail) because previous cases involved man-woman marriage and "States' interest in linking children to their biological" parents.
Is there a slippery slope? What about polygamous and incestuous marriages? What about age of consent laws?
What about religious freedom? How do we know that ministers won't be forced to perform "gay marriages"?
Should the case be resolved on Equal Protection or Due Process? Justice Kennedy asked General Verrilli about Glucksberg, Verrilli replied:
GENERAL VERRILLI: Justice Kennedy, forgive me for answering the question this way. We do recognize that there's a profound connection between liberty and equality, but the United States has advanced only an equal protection argument. We haven't made the fundamental rights argument under Glucksberg. And therefore, I'm not sure it would be appropriate for me not having briefed it to comment on that.
JUSTICE KENNEDY: Well, can you tell me why you didn't make the fundamental argument?
GENERAL VERRILLI: Well, because we think well, because we think while we do see that there is, of course, this profound connection, we do think that for reasons like the ones implicit in the Chief Justice's question, that this issue really sounds in equal protection, as we understand it, because the question is equal participation in a State conferred status and institution. And that's why we think of it in equalprotection terms
Counsel, I'm I'm not sure it's necessary to get into sexual orientation to resolve the case. I mean, if Sue loves Joe and Tom loves Joe, Sue can marry him and Tom can't. And the difference is based upon their different sex. Why isn't that a straightforward question of sexual discrimination?
The open question is whether the Court's opinion will be as predictable as the questions.
April 28, 2015 in Courts and Judging, Due Process (Substantive), Equal Protection, Federalism, First Amendment, Fourteenth Amendment, Full Faith and Credit Clause, Fundamental Rights, Oral Argument Analysis, Religion | Permalink | Comments (0) | TrackBack (0)
Monday, April 27, 2015
The Fifth Circuit on Friday dismissed a case challenging both the individual and employer mandates in the Affordable Care Act under the Origination Clause. The court said that the individual plaintiff challenging the individual mandate lacked standing, and that the corporation challenging the employer mandate was barred by the Anti-Injunction Act. The ruling dismisses the case, with little or no chance of a successful appeal.
The case, Hotze v. Burwell, was brought by a medical doctor, Steven Hotze, and his employer, Braidwood Management. The plaintiffs argued that the ACA's individual and employer mandates violated the Origination Clause, because they are "bills for raising Revenue" that did not "originate in the House." Their theory: The ACA was a Senate amendment to a shell of a House bill that already passed, so that in fact the ACA really originated in the Senate. If so--and if the individual mandate is authorized by the Taxing Clause (and not the Commerce Clause), as the Court held--then, they claimed, the whole ACA should have started in the House. Because it really didn't, it violated the Origination Clause.
But there was a problem even before the court got to the merits: Hotze already had health insurance through Braidwood, and so would not have to purchase insurance or pay the tax penalty. This meant that he didn't suffer a harm.
Hotze neglected to say in his complaint that his insurance wasn't up to ACA snuff (and that he'd have to drop it and buy new insurance or pay the tax penalty), so all he had for an injury was that the ACA forced him to make hard health-insurance choices. The court said that this wasn't enough for standing.
Hotze also argued that when the employer mandate takes effect, Braidwood would have to offer him less desirable insurance. The court said that this theory wasn't tightly enough tied (or at all tied) to the individual mandate, however, so this didn't support standing, either.
Finally, Hotze said that the ACA forced his insurance premiums up. The court rejected this theory, too, saying that it amounts to a generalized grievance.
The court also dismissed Braidwood's challenge to the employer mandate, but this time under the Anti-Injunction Act. The AIA bars courts from hearing any challenge to restrain the assessment or collection of any tax.
Even if the court had addressed the merits, however, this case didn't appear to be going anywhere. That's because the ACA did originate in the House, even if in a shell bill later amended by the Senate to include the full ACA. The plaintiffs argued that the Senate amendment wasn't germane to the House bill (and was thus an unconstitutional end-run around the Origination Clause), but the government argued that the Origination Clause didn't contain a germane-ness requirement--a point the district court found convincing.
The district court dismissed the case on the merits, ruling that the ACA didn't violate the Origination Clause. Good bet the Fifth Circuit would have, too.
Friday, April 24, 2015
The D.C. Circuit ruled today that plaintiffs lacked standing to challenge EPA and NHTSA's standards for greenhouse gas emissions from cars and trucks. The ruling means that the case is dismissed, and the standards stay in place.
The case, Delta Construction v. EPA, tests a joint effort by the EPA and NHTSA to regulate greenhouse gas emissions from automobiles and trucks. The agencies issued coordinated rules, one set of rules for cars and, later, one set for trucks. (The D.C. Circuit previously upheld the car rules, and the Supreme Court denied review.)
The plaintiffs--business, associations, and individuals in California, and Plant Oil Powered Diesel (or POP Diesel), a company that promotes the use of vegetable oil in place of traditional diesel fuel--sued, arguing that the regulations were arbitrary and capricious in violation of the Administrative Procedures Act. The California plaintiffs challenged the EPA rules only; POP Diesel challenged both the EPA and NHTSA rules. The California plaintiffs argued that the regs jacked up the price of cars and trucks in the state; POP Diesel argued that the truck rule makes its product economically unfeasible.
The court held that the California plaintiffs lacked standing, because they couldn't show causation and redressability. That's because even if they won on the merits--and the court struck the EPA rules--the NHTSA rules would still drive the prices of their vehicles up. In other words, because both agencies' sets of rules did the same thing, defeating one wouldn't solve their alleged problem.
As to POP Diesel, the court said that it didn't fall within the zone of interests protected by the portion of the Clean Air Act governing emissions standards for motor vehicles. The court said that economic interests, like POP Diesel's, without more, aren't within the congressional goals of the Act, and that POP Diesel's green approach alone doesn't put it within the Act's zone of interests.
The court dismissed the case and ended the plaintiffs' challenge to the emissions regs.
Thursday, April 16, 2015
The United States Supreme Court is set to hear oral arguments on April 28 in the same-sex marriage cases, now styled as Obergefell v. Hodges, a consolidated appeal from the Sixth Circuit’s decision in DeBoer v. Snyder, reversing the district court decisions in Kentucky, Michigan, Ohio, and Tennessee that had held the same-sex marriage bans unconstitutional, and creating a circuit split.
Recall that the Court certified two questions:
1)Does the Fourteenth Amendment require a state to license a marriage between two people of the same sex?
2) Does the Fourteenth Amendment require a state to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out-of-state?
The case has attracted what seems to be a record number of amicus briefs. As we discussed last year, previous top amicus brief attractors were the same-sex marriage cases of Windsor and Perry, which garnered 96 and 80 amicus briefs respectively, and the 2013 affirmative action case of Fisher v. University of Texas at Austin, which attracted 92. [Note that the "Obamacare" Affordable Care Act cases including 2012's consolidated cases of NFIB v. Sebelius attracted 136 amicus briefs.]
The count for Obergefell v. Hodges stands at 139. 147 [updated: 17 April 2015]
76 amicus briefs support the Petitioners, who contend that same-sex marriage bans are unconstitutional.
58 66 amicus briefs support the Respondents, who contend that same-sex marriage bans are constitutional.
05 amicus briefs support neither party (but as described below, generally support Respondents).
According to the Rules of the Supreme Court of the United States, Rule 37, an amicus curiae brief’s purpose is to bring to the attention of the Court “relevant matter not already brought to its attention by the parties.” While such a brief “may be of considerable help to the Court,” an “amicus curiae brief that does not serve this purpose burdens the Court, and its filing is not favored.”
An impressive number of the Amicus Briefs are authored or signed by law professors. Other Amici include academics in other fields, academic institutions or programs, governmental entities or persons, organizations, and individuals, often in combination. Some of these have been previously involved in same-sex marriage or sexuality issues and others less obviously so, with a number being religious organizations. Several of these briefs have been profiled in the press; all are linked on the Supreme Court’s website and on SCOTUSBlog.
Here is a quick - - - if lengthy - - - summary of the Amici and their arguments, organized by party being supported and within that, by identity of Amici, beginning with briefs having substantial law professor involvement, then government parties or persons, then non-legal academics, followed by organizations including religious groups, and finally by those offering individual perspectives. [Late additions appear below]Special thanks to City University of New York (CUNY) School of Law Class of 2016 students, Aliya Shain & AnnaJames Wipfler, for excellent research.
April 16, 2015 in Courts and Judging, Equal Protection, Establishment Clause, Family, Federalism, First Amendment, Foreign Affairs, Fourteenth Amendment, Free Exercise Clause, Full Faith and Credit Clause, Fundamental Rights, Gender, History, Interpretation, Privacy, Profiles in Con Law Teaching, Race, Recent Cases, Reproductive Rights, Scholarship, Sexual Orientation, Sexuality, Standing, Supreme Court (US), Theory | Permalink | Comments (3) | TrackBack (0)
Tuesday, April 7, 2015
The Fifth Circuit today affirmed the dismissal of a challenge to the Deferred Action for Childhood Arrivals, or "DACA," program by a group of ICE agents and deportation officers and the State of Mississippi. We previously posted on the suit here.
The plaintiffs lodged several claims against the DACA program, including a separation-of-powers and a violation of the Take Care Clause. They claimed that they had standing because Mississippi incurred expenses for state benefits for "illegal aliens" and because DACA forced the officers to violate the law, change the way they enforced the law, and face job sanctions for not deferring.
The court today rejected these standing claims and affirmed the dismissal of case. As to Mississippi, the court said that any injury was "purely speculative because there was no concrete evidence that Mississippi's costs had increased or will increase as a result of DACA." As to the officers, the court said that a violation of their oath to uphold the laws was not a sufficient injury for standing purposes; that their burden to comply with DACA also wasn't a sufficient injury and that in any event they failed to allege specific facts to support it; and that any threat of employment sanctions for not enforcing DACA was too speculative.
As to this last point, the court emphasized that DACA requires individual officers to "exercise their discretion in deciding to grant deferred action, and this judgment should be exercised on a case-by-case basis." This feature of DACA, of course, also goes to the merits by hard-wiring DACA with prosecutorial discretion and putting the program squarely within executive discretionary authority. As to standing, the court said that this feature makes it unlikely that an officer would be sanctioned for exercising discretion to deport.
Today's ruling says nothing about the merits of DACA. But it does illustrate why it's so hard to bring a challenge to DACA in court.
Wednesday, April 1, 2015
The Supreme Court ruled this week that the Supremacy Clause does not confer a private right of action for injunctive relief against state officers who are allegedly violating the Medicaid Act. The sharply divided ruling (along conventional ideological lines, except for Justices Kennedy and Breyer) is a blow to the courts' equitable powers and access to justice, and, as Justice Sotomayor wrote in dissent, "threatens the vitality of our Ex Parte Young jurisprudence."
More immediately, the Court's ruling is a blow to underpaid Medicaid providers. They now cannot seek an injunction against an under-paying state in federal court; instead, they have to petition the federal government to withhold Medicaid funds from a state that violates the Medicaid Act--a much harder way to get relief.
The case, Armstrong v. Exceptional Child Care, Inc., arose when habilitation service providers sued Idaho for paying them too little under the federal Medicaid program. The providers based their claim on Section 30(A) of the Medicaid Act and the Supremacy Clause. Section 30(A) requires Idaho (and other states) to provide payment for services sufficient "to assure that payments are consistent with efficiency, economy, and quality of care and are sufficient to enlist enough providers so that care and services are available under the plan . . . ." The providers argued that this requirement preempted Idaho's low payment rate and sought injunctive relief against state officers who implement Idaho's Medicaid plan.
Justice Scalia wrote for the Court, joined by Chief Justice Roberts and Justices Thomas, Breyer, and Alito. He said that the Supremacy Clause does not confer a right of action for injunctive relief, because the Clause doesn't provide for it, and because to allow it would permit private parties to enforce congressional actions, "significantly curtailing [Congress's] ability to guide the implementation of federal law."
Justice Scalia also wrote that the Court lacked equitable power to enjoin Idaho's unlawful action under the Medicaid Act, because Section 30(A) demonstrates "Congress's 'intent to foreclose' equitable relief." He said that the "sole remedy" for a state's violation of the Medicaid Act is withholding of federal funds, and he said that Section 30(A) is couched in judicially unadministrable terms and standards.
Justice Breyer concurred in all but Part IV of Justice Scalia's majority opinion. (Part IV argued that the Medicaid Act itself didn't provide an express cause of action for the plaintiffs, third-party beneficiaries to Idaho's Medicaid agreement with the federal government.) He argued that administrative agencies are better suited to applying Section 30(A) than federal courts in an action like this.
Justice Sotomayor wrote the dissent, joined by Justices Kennedy, Ginsburg, and Kagan. Justice Sotomayor wrote that there's a long history of suits for equitable protection against a preempted state law, and that "we have characterized 'the availability of prospective relief of the sort awarded in Ex Parte Young' as giving 'life to the Supremacy Clause.'" Justice Sotomayor argued that there's only a single prior decision "in which we have ever discerned . . . congressional intent to foreclose equitable enforcement of a statutory mandate" (as the majority did here), and that was in Seminole Tribe, a case easily distinguished from this one. She wrote that "the Court . . . threatens the vitality our Ex Parte Young jurisprudence."