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."
Thursday, March 26, 2015
The Fifth Circuit dismissed most of the plaintiff's Family and Medical Leave Act case in Bryant v. Texas Dep't of Aging and Disability Services, holding that most claims were barred by state sovereign immunity and qualified immunity. But the court remanded the question whether the plaintiff's claim for monetary damages against her supervisor is barred by state sovereign immunity.
The plaintiff, Tammy Bryant, sued her employer, Texas Department of Aging and Disability Services, and her direct supervisor, Kim Littleton, for interfering with her self-care FMLA leave and for retaliating against her for taking FMLA leave. She sought reinstatement and monetary damages.
The Fifth Circuit dismissed most of Bryant's case. The court ruled that while Congress validly abrogated states' Eleventh Amendment immunity with respect to the FMLA's family-care provision, Nev. Dep't of Human Resources v. Hibbs, Congress did not validly abrogate with respect to the self-care provision. Coleman v. Court of Appeals of Maryland. As a result, the department had Eleventh Amendment immunity against Brant's self-care claims for monetary damages.
As to Bryant's claim for reinstatement, the court said that the Ex Parte Young exception (allowing plaintiffs to sue a state for prospective relief) did not apply to suits against state agencies; it only applies against state employees acting in their official capacities.
The court ruled further that Littleton enjoyed qualified immunity from Bryant's interference claims, because Bryant failed to show that Littleton violated clearly established law.
Finally, the court remanded Bryant's claim for monetary damages against Littleton. The court recognized that this "depends on the state's being the real party in interest" and left it to the lower court to work that out.
March 26, 2015 in Cases and Case Materials, Congressional Authority, Courts and Judging, Eleventh Amendment, Jurisdiction of Federal Courts, News, Opinion Analysis | Permalink | Comments (0) | TrackBack (0)
Wednesday, March 25, 2015
Judge Edgardo Ramos (SDNY) dismissed a private defamation case this week after the government moved to intervene and asserted the state secrets privilege. Judge Ramos ruled that moving forward with the case at all (even excluding privileged evidence) would "impose an unjustifiable risk of disclosing state secrets." The ruling thus puts an end to the case, unless and until appealed. It is not a ruling on the merits, however.
The case, Restis v. American Coalition Against Nuclear Iran, involves Greek shipping magnate Victor Restis's defamation claim against the group United Against Nuclear Iran for claiming, as part of its "name and shame" campaign, that Restis was involved in the illegal exportation of Iranian oil in violation of international sanctions. Restis sued UANI, and the government intervened and moved to dismiss on state secrets grounds, filing a classified declaration by the head of the government department that has control over the matter in support. (The government asserted, and the court apparently accepted, that the government couldn't even reveal "the department that has control over the matter" without risking the disclosure of secret information.)
Judge Ramos reviewed the declaration in camera and held two ex parte, in camera meetings with the government before determining that the state secrets privilege applied. "Having carefully reviewed the classified declarations and documents submitted by the Government ex parte, and being cognizant of a district court's obligation to grant 'utmost deference' to the executive's determination of the likely import of disclosure of the information on military or diplomatic security, the Court is satisfied that there is a reasonable danger that disclosure of the facts underlying the Government's assertion would in fact jeopardize national security."
Judge Ramos went on to say that "further litigation of this action would impose an unjustifiable risk of disclosing state secrets" and dismissed the case entirely. (Under the state secrets privilege, Judge Ramos might have allowed the case to move forward without the privileged evidence. But here, he said, any further litigation would risk disclosure.)
Notably absent from the ruling was any discussion of the state secrets privilege as a separation-of-powers principle. (Treating the privilege as a separation-of-powers principle has in the past led to a much more robust privilege, as in the Fourth Circuit's ruling in El-Masri.) Instead, Judge Ramos treated the privilege as it was designed and as the government apparently asserted it--as an evidentiary privilege. Even so, the government's assertion of the privilege resulted in the dismissal of the entire case.
Judge Ramos rejected the plaintiff's arguments that the government shouldn't be able to rely only on ex parte submissions for its assertion and that the case could be litigated in an in camera trial--because the evidence was apparently too secret even to tell the lawyers. Judge Ramos wrote, "The nature of the information here requires that counsel not be granted access."
Judge Ramos gave a hat tip--but only a hat tip--to the plaintiff's interest in access to justice:
The Court recognizes that dismissal is a "harsh sanction." It is particularly so in this case because Plaintiffs not only do not get their day in court, but cannot be told why.
Still, he said that "dismissal is nonetheless appropriate," because "there is no intermediate solution that would allow this litigation to proceed while also safeguarding the secrets at issue."
March 25, 2015 in Cases and Case Materials, Courts and Judging, Executive Privilege, Jurisdiction of Federal Courts, News, Opinion Analysis, Separation of Powers, State Secrets | Permalink | Comments (0) | TrackBack (0)
Tuesday, March 24, 2015
The Sixth Circuit ruled last week in Sierra Club v. EPA that the Sierra Club had standing to challenge EPA's redesignation of the Ohio and Indiana portions of the Cincinnati area from "nonattainment" to "attainment" of the area's national air quality standards for particulate matter. The court went on to rule that the EPA's redesignation violated the Clean Air Act.
The ruling is notable, because it's the first time the Sixth Circuit had a chance to address a petitioner's burden of production on standing in a direct appeal of a final agency action. The court said that the petitioner bears a burden of production similar to that required at summary judgment (and not like the lower standard required on a motion to dismiss), that is: "the petitioner has to present specific facts supporting standing through citations to the administrative record or 'affidavits or other evidence' attached to its opening brief, unless standing is self-evident." This standard aligns the Sixth Circuit with the Seventh, Eighth, Tenth, and D.C. Circuits.
Here, the Sierra Club attached to its brief a declaration by Sierra Club members who claimed that the redesignation would cause aesthetic, recreational, and physical injuries. As to causation and redressability, the court noted "that many courts have apparently found it so obvious that redesignation would lead to higher emissions that they did not even need to discuss the standing of environmental litigants." Still, the court looked to "reasonable inferences" about redesignation's impact and concluded that "[w]e find it reasonable to infer actual and imminent aesthetic and physical injuries to an identified member of the Club from redesignation of the Cincinnati area."
After concluded that the Sierra Club had standing, the court went on to rule against the EPA on the merits--that the redesignation violated the Clean Air Act.
Monday, March 23, 2015
The Ninth Circuit ruled last week that officers who falsely testified against a defendant based on shoddy investigation reports did not enjoy the traditional absolute immunity that witnesses enjoy against a civil suit. The ruling means that the defendant's case against the officers can go forward.
The case, Lisker v. City of Los Angeles, grew out of a wrongful conviction for second-degree murder based upon two police officers' false testimony that was based on shoddy investigation reports. The defendant, Lisker, who served over twenty-six years in custody, sued the officers for civil rights violations under Section 1983. The officers claimed they enjoyed absolute immunity because they were witnesses against him at trial.
But the Ninth Circuit rejected that claim. The court ruled that the officers' testimony was based upon their investigation reports, and, as such, looked more like a non-testimonial act (like "tampering with documentary or physical evidence or preventing witnesses from coming forward," which is not a basis for absolute immunity) than testimony (which is). The court also said that the policy reasons behind absolute immunity didn't apply to the investigative materials here:
Absolute witness immunity is motivated by the recognition that "[a] witness who knows that he might be forced to pay damages, might be inclined to shade his testimony in favor of the potential plaintiff, to magnify uncertainties, and thus to deprive the finder of fact of candid, objective, and undistorted evidence." That immunity extends to conspiracies to testify falsely for practical reasons, as a plaintiff could otherwise easily undermine the interest in witness candor by challenging the conspiracy rather than the testimony itself. But when defendants have "dual roles as witness and fabricator," extending protection from the testimony to the fabricated evidence "would transform the immunity from a shield to ensure" candor into "a sword allowing them to trample the statutory and constitutional rights of others." The detectives' ultimate testimony "does not serve to cloak these actions with absolute testimonial immunity"; if it did, they would be rewarded for "compound[ing] a constitutional wrong."
Friday, March 20, 2015
The Ninth Circuit ruled today in Munns v. Kerry that families of a government contractor taken hostage in Iraq lacked standing to challenge the alleged government policy prohibiting families from offering a reward or negotiating with terrorist kidnappers. The ruling dismisses the case.
The case was brought by former employees of a private firm (and their families) that contracted with the government for security services in Iraq. Former employees of the company claim, through their next of kin, that they were issued substandard military equipment and were ill-prepared for a mission (because of the negligence of their employer, sanctioned by the State Department), that as a result they were taken hostage and held for over a year, and that government policy prohibited the families from negotiating with the kidnappers. Kidnappers brutally executed the employees in 2008.
One plaintiff, Bjorlin, not taken hostage, alleges that he wishes to return to Iraq but wants to be sure that government policies will not prevent his employer from properly equipping him for security missions.
The families of the kidnapped and executed employees argued that an alleged government policy prohibiting them from seeking information on the kidnapped employees, and offering a reward, violated the First Amendment; they sought declaratory and injunctive relief against such a policy. They also argued that the government withheld money that belongs to them as survivors of their deceased contractor relatives, in violation of the Due Process and Takings Clauses; they sought monetary damages.
The Ninth Circuit ruled that the plaintiffs lacked standing for their claims for declaratory and injunctive relief. As to the families of executed employees, the court said that they didn't allege how any government policies would affect them in the future (even if they alleged that those policies affected them in the past). As to Bjorlin, the court said that the chain of events required before he would be affected by any policies was simply too attenuated.
Because the court affirmed the dismissal based on lack of standing, it didn't address the political question doctrine as an alternative basis for dismissal.
The court also rejected the plaintiffs' claims for monetary damages based on sovereign immunity.
Thursday, March 19, 2015
Akhil Reed Amar writes in this month's Atlantic that the high Court is now packed with Justices that have nearly identical backgrounds--elite educations, prestigious clerkships, and appellate court judgeships--and why that's a problem. Amar argues that the lack of experience in Congress or at high levels in the executive branch is a particular worry:
While a bench overloaded with ex-pols would be unfortunate, the Court would benefit from having at least one or two justices who know how Washington works at the highest levels, and who have seen up close how presidents actually think, how senators truly spend their days, how bills in fact move through Congress, and so on--in short, one or two justices whose resumes resemble those of former Secretary of State John Marshall, Hugo Black, and Robert Jackson.
The Brennan Center just released What Went Wrong with the FISA Court?, a history and analysis of the FISA court, its problems, and some suggested solutions, penned by Elizabeth Goitein and Faiza Patel.
The report walks through the history of FISA to show just how the law, technology, and the FISA court itself changed to create the conditions for the bulk, or programmatic, surveillance programs that we have today. The report argues that current programmatic surveillance programs raise significant Article III and Fourth Amendment problems. In order to solve these, the report suggests the following:
- End programmatic surveillance by prohibiting bulk surveillance under Section 215 and replacing Section 702 with a regime that would require an individualized court order for surveillance.
- Enact additional reforms and processes, including adding an adversarial process (an advocate against the government before the FISA court) and increasing transparency.
- Enact additional Fourth Amendment reforms, including restoring the requirement that the surveillance target is a foreign power or its agent, narrowing the definition of "foreign intelligence information," and restoring the test that requires that obtaining foreign intelligence information is the "primary purpose" of the surveillance.
- Reform programmatic surveillance, if it must continue.