Friday, July 21, 2017
Given recent reporting that raises the specter of a Presidential self-pardon, a few sources are worth considering.
First, there is the Constitutional text itself, which is not surprisingly inconclusive on this issue. Article II §2 begins by declaring that the President "shall be commander in chief of the Army and Navy of the United States" and ends by stating "and he shall have power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment." What's clear is the exclusion of impeachment. What's unclear is whether this power would extend to a self-pardon.
Second, although there has never been a case of Presidential self-pardon in the United States, the possibility was contemplated with regards to President Richard Nixon. An Office of Legal Counsel Opinion, Memorandum Opinion for the Deputy Attorney General, offered a succinct answer to the "question whether the President can pardon himself":
Under the fundamental rule that no one may be a judge in his own case, it would seem that the question should be answered in the negative.
The Memo does raise several other possibilities, including one under the 25th Amendment involving the Vice-President, as well as the legislative actions. The Memo, by Mary Lawton, was dated August 5, 1974; Nixon resigned a few days later. A month later, President Gerald Ford issued a Proclamation with a full pardon to Nixon.
Third, a 1996 law review note article by now-Professor Brian Kalt of Michigan State University College of Law, Pardon Me?: The Constitutional Case Against Presidential Self-Pardons, springboards from the possibility that President George Bush, who had pardoned several people implicated in the Iran-Contra controversy would also pardon himself as he left office. Kalt concludes that "the intent of the Framers, the words and themes of the Constitution they created, and the wisdom of the judges that have interpreted it all point to the same conclusion: Presidents cannot pardon themselves."
The bedrock principle that "no one can be a judge in his own case" is the foundation of the Kalt article and its sources as well as the OLC memo, as well as providing a rationale for even the possibility not being excluded in the Constitutional text.
Tuesday, June 27, 2017
With all the activity at the Court yesterday, we might be excused for missing the Court's non-decision in Hernandez v. Mesa. But even as the Court punted, remanding to the lower court, this is a case we should pay attention to.
The case involved a border patrol agent who shot and killed a Mexican youth just on the other side of the border. (Our oral argument review is here.) The case teed up an important dispute over whether the Fourth Amendment applies outside the United States, and how the Court should decide that question. (The case also asked whether the agent enjoyed qualified immunity for a related Fifth Amendment claim.)
But then the Court added a third QP--whether the plaintiffs had a Bivens claim, an issue that the lower courts dodged--signalling that the Court thought this was a substantial, even threshold, issue. Then just last week in Abbasi the Court ruled that 9/11 detainees did not have a Bivens claim and in the course substantially narrowed the Bivens doctrine. Yesterday the Court put these two pieces together and took them to their logical conclusion: It remanded Hernandez with instructions to consider, as a threshold matter (that is, before the courts gets to the extraterritoriality question, and possibly even before the court gets to the qualified immunity question), whether the plaintiffs have a Bivens claim in light of Abbasi.
This does not bode well for the plaintiffs. That's because the Court in Abbasi all but limited the Bivens "context" to cases that look exactly like the three cases in which the Court has found a Bivens remedy. Outside of that "context," the Court won't extend Bivens if "special factors" counsel against a Bivens remedy. And the Court defined "special factors" broadly enough that it'll be hard to show that they don't.
In other words, the plaintiffs will only prevail if they can show that special factors don't counsel against extending a Bivens remedy to this case. And given the very broad approach to "special factors" in Abbasi, that could be quite hard to do.
At the same time, the Court ruled that the lower court improperly granted qualified immunity to the agent. The Court said that the agent couldn't have known that Hernandez was Mexican (not American), and the lower court therefore erred in relying on the fact that Hernandez was "an alien who had no significant voluntary connection to . . . the United States."
That may be a hollow victory for the plaintiffs, however, if the courts rule as a threshold matter that they lack a Bivens claim. If they so rule, there'll be no need to even consider qualified immunity, or, for that matter, the extraterritorial application of the Fourth Amendment.
Monday, June 26, 2017
In a per curiam opinion in the so-called "travel ban" or "Muslim ban" cases, Trump v. International Refugee Assistance Project and Trump v. Hawai'i, the Court has granted the federal government's petitions for certiorari and granted the stay applications in part. The Fourth Circuit en banc and the Ninth Circuit had both found that the challengers to the President's March 6, 2017 Executive Order "Protecting The Nation From Foreign Terrorist Entry Into The United States" (now numbered EO 13,780), known as EO-2.
Recall that the Fourth Circuit en banc in Trump v. International Refugee Assistance Project affirmed the injunction against EO-2 based on the Establishment Clause. As the Supreme Court's opinion phrases it, the Fourth Circuit
majority concluded that the primary purpose of §2(c) was religious, in violation of the First Amendment: A reasonable observer familiar with all the circumstances—including the predominantly Muslim character of the designated countries and statements made by President Trump during his Presidential campaign—would conclude that §2(c) was motivated principally by a desire to exclude Muslims from the United States, not by considerations relating to national security. Having reached this conclusion, the court upheld the preliminary injunction prohibiting enforcement of §2(c) [of EO-2] against any foreign national seeking to enter this country.
Recall also that the Ninth Circuit unanimous panel similarly affirmed a district judge's injunction against EO-2, but on the grounds that EO-2 likely exceeded the president's statutory authority, thus only implicitly reaching the constitutional issue.
In today's opinion from the Court, the Court granted the petitions for certiorari in both cases, consolidated the cases, and set them for the October 2017 Term, as well as directing briefing on the issues of mootness.
Importantly, the Court narrowed the injunctive relief imposed by the appellate courts. As to §2(c) of EO-2, which suspended entry in the United States, the Court found the injunction balanced the equities incorrectly as to "foreign nationals abroad who have no connection to the United States at all." Thus, "§2(c) may not be enforced against foreign nationals who have a credible claim of a bona fide relationship with a person or entity in the United States. All other foreign nationals are subject to the provisions of EO–2."
Similarly, as to §6(b) refugee cap enjoined by the Ninth Circuit, the Court found that refugees who lack connection to the United States should not be covered. However, EO §6 "may not be enforced against an individual seeking admission as a refugee who can credibly claim a bona fide relationship" with the United States.
In discussing §2(c), the Court provided examples of the narrowed injunction:
The facts of these cases illustrate the sort of relationship that qualifies. For individuals, a close familial relation- ship is required. A foreign national who wishes to enter the United States to live with or visit a family member, like Doe’s wife or Dr. Elshikh’s mother-in-law, clearly has such a relationship. As for entities, the relationship must be formal, documented, and formed in the ordinary course, rather than for the purpose of evading EO–2. The students from the designated countries who have been admit- ted to the University of Hawaii have such a relationship with an American entity. So too would a worker who accepted an offer of employment from an American company or a lecturer invited to address an American audience. Not so someone who enters into a relationship sim- ply to avoid §2(c): For example, a nonprofit group devoted to immigration issues may not contact foreign nationals from the designated countries, add them to client lists, and then secure their entry by claiming injury from their exclusion.
The Court's decision may give both "sides" a basis for claiming victory, but of course the decision is a temporary one and awaits a full decision on the merits.
June 26, 2017 in Cases and Case Materials, Courts and Judging, Current Affairs, Establishment Clause, Executive Authority, First Amendment, Mootness, Opinion Analysis, Supreme Court (US) | Permalink | Comments (1)
Monday, June 19, 2017
The Supreme Court ruled today that post-9/11 "of interest" detainees could not sue executive officials for damages for constitutional violations during their detention. Moreover, the ruling in Ziglar v. Abbasi all but wipes out future damages remedies against federal officials for constitutional violations, except in the very narrow circumstances of three cases where the Court has found such a remedy. (And those cases may be hanging on by just a string.)
The case arose when post-9/11 detainees at a federal detention facility sued then-AG John Ashcroft, then-FBI Director Robert Mueller, and then-INS Commissioner James Ziglar for abusive detention policies in violation of their Fourth- and Fifth-Amendment rights. The plaintiffs sought monetary damages under Bivens.
The Court today rejected those claims. In an opinion abounding with deference to Congress, Justice Kennedy, writing for himself and Chief Justice Roberts and Justices Thomas and Alito (Justices Sotomayor, Kagan, and Gorsuch were all recused), held that the case raised a new Bivens context and that special factors counseled against a Bivens remedy.
As to context, the Court set out this test:
If the case is different in a meaningful way from previous Bivens cases decided by this Court, then the context is new. Without endeavoring to create an exhaustive list of differences that are meaningful enough to make a given context a new one, some examples might prove instructive. A case might differ in a meaningful way because of the rank of the officers involved; the constitutional right at issue; the generality or specificity of the official action; the extent of judicial guidance as to how an officer should respond to the problem or emergency to be confronted; the statutory or other legal mandate under which the officer was operating; the risk or disruptive intrusion by the Judiciary into the functioning of other branches; or the present of potential special factors that previous Bivens cases did not consider.
In other words, if a new case isn't nearly on all fours with one of the three cases where the Court has found a Bivens remedy--Bivens itself (a Fourth Amendment violation), Davis v. Passman (an assistant's Fifth Amendment Due Process claim against a Congressman for gender discrimination), and Carlson v. Green (a prisoner's estate's Eighth Amendment Cruel-and-Unusual claim)--there's a new context. And the Court said that this case presented a new context.
As to special factors, the Court said that the claims "call[ed] into question the formulation and implementation of a general policy," that the policy related to the government's response to the 9/11 attacks (a national security concern, traditionally an area for the executive), that Congress had not provided a damages remedy, and that other remedies (injunctive relief, a habeas claim) were available.
Between the Court's very narrow view of new circumstances and its very broad view of special factors counseling against a Bivens remedy, this case failed. And the ruling ensures that very few future Bivens cases will succeed.
On another issue, the Court remanded a related claim against the prison warden, instructing the lower court to conduct a special-factors analysis. Finally, the Court rejected the plaintiffs' civil-rights conspiracy claim, holding that the defendants enjoyed qualified immunity, because the question whether officials all within the executive branch could constitute a conspiracy "is sufficiently open so that the officials in this suit could not be certain that [conspiracy] was applicable to their discussions and actions."
Justice Breyer dissented, joined by Justice Ginsburg.
In the United States Supreme Court unanimous decision in Packingham v. North Carolina, the Court found that the state statute, NCGS § 14-202.5, making it a felony for registered sex offenders to access commercial social networking sites, violated the First Amendment. This outcome was predictable given the then-eight Justices' skepticism during the oral arguments in February. Recall that Packingham was convicted of the North Carolina felony for his Facebook page on which he wrote " Thank you Jesus. God is good" regarding a result on his parking ticket.
The Court's majority opinion by Justice Kennedy, joined by Justices Ginsburg, Breyer, Sotomayor, and Kagan, is a mere 10 pages. The Court not only stresses the breadth of the North Carolina statute, but highlights the role of the Internet in "our modern society and culture" as vital to the First Amendment:
A fundamental principle of the First Amendment is that all persons have access to places where they can speak and listen, and then, after reflection, speak and listen once more. The Court has sought to protect the right to speak in this spatial context. . . .
While in the past there may have been difficulty in identifying the most important places (in a spatial sense)for the exchange of views, today the answer is clear. It is cyberspace—the “vast democratic forums of the Internet” in general, Reno v. American Civil Liberties Union, 521 U. S. 844, 868 (1997), and social media in particular. Seven in ten American adults use at least one Internet social networking service. . . .
While we now may be coming to the realization that the Cyber Age is a revolution of historic proportions, we cannot appreciate yet its full dimensions and vast potential to alter how we think, express ourselves, and define who we want to be. The forces and directions of the Internet are so new, so protean, and sofar reaching that courts must be conscious that what they say today might be obsolete tomorrow.
This case is one of the first this Court has taken to address the relationship between the First Amendment and the modern Internet. As a result, the Court must exercise extreme caution before suggesting that the First Amendment provides scant protection for access to vast networks in that medium.
For the Court majority, even assuming the North Carolina statute was content neutral and should be analyzed under intermediate scrutiny, the statute "enacts a prohibition unprecedented in the scope of First Amendment speech it burdens." The Court noted that the present statute applies to all social networking sites including Facebook, LinkedIn, and Twitter, and that a state could possibly enact a more specific provision, such as prohibiting contacting a minor on social media.
In sum, to foreclose access to social media altogether is to prevent the user from engaging in the legitimate exercise of First Amendment rights. It is unsettling to suggest that only a limited set of websites can be used even by persons who have completed their sentences. Even convicted criminals—and in some instances especially convicted criminals—might receive legitimate benefits from these means for access to the world of ideas, in particular if they seek to reform and to pursue lawful and rewarding lives.
While Justice Alito's opinion, joined by Chief Justice Roberts and Justice Thomas, agrees with the outcome, Alito criticizes Kennedy's opinion for the Court as not being sufficiently circumspect and cautious, and for engaging in "loose rhetoric." For Alito, the problem with the North Carolina statute is likewise its breadth: "its wide sweep precludes access to a large number of websites that are most unlikely to facilitate the commission of a sex crime against a child." Among Alito's examples are Amazon.com, the Washington Post website, and WebMD. Yet Alito's opinion, just slightly longer than Kennedy's for the Court, found it important to argue that the entirety of the internet or even social media sites are "the 21st century equivalent of public streets and parks." In support of this, Alito argues that the internet offers an "unprecedented degree of anonymity."
Yet Alito's concurring opinion does not essentially disagree with the Court's finding that it would be possible for a state to craft a sufficiently narrow statute. The disagreement, however, may be in the room for states to maneuver in drafting such a criminal statute.
Monday, June 12, 2017
In its opinion in Sessions v. Morales-Santana, the United States Supreme Court has held that the differential requirements regarding US presence for unwed fathers and unwed mothers to transmit citizenship to their child violated equal protection as included in the Fifth Amendment's protections. Recall that the Second Circuit had held there was an equal protection violation and had subjected the the statutory scheme to intermediate heightened scrutiny under United States v. Virginia (VMI) (1996), rejecting the government's argument that essentially all citizenship statutes should be subject to mere rational basis review. The Supreme Court opinion in Morales-Santana, authored by Justice Ginsburg (who also wrote VMI), was joined by Chief Justice Roberts, Kennedy, Breyer, Sotomayor, and Kagan. Justices Thomas and Alito briefly dissented.
But while the Court's opinion affirms the Second Circuit's constitutional conclusion, it nevertheless holds that Morales-Santana is not entitled to relief, reversing the Second Circuit on that point.
The Court first rehearses the complicated statutory scheme and facts. The Immigration and Nationality Act of 1952, codified at 8 U.S.C. § 1409(c), was the one in effect when Morales-Santana was born in 1962 outside the US to unwed parents. His parents married each other in 1970 and he was admitted to the US as a lawful permanent resident in 1975. In 2000, Morales-Santana was placed in removal proceedings after a conviction for various felonies and applied for withholding based on derivative citizenship from his father. Derivative citizenship, which occurs at the moment of birth, is bestowed on a child born abroad to an unwed citizen mother and non‐citizen father has citizenship at birth so long as the mother was present in the United States or one of its outlying possessions for a continuous period of at least one year at some point prior to the child’s birth. By contrast, a child born abroad to an unwed citizen father and non‐citizen mother has citizenship at birth only if the father was present in the United States or one of its outlying possessions prior to the child’s birth for a period or periods totaling at least ten years, with at least five of those years occurring after the age of fourteen. Morales-Santana's father, born in Puerto Rico in 1900, met the one year requirement but not the ten year requirement at the time of his son's birth. Both parties agreed that had Morales‐Santana’s mother, rather than his father, been a citizen continuously present in Puerto Rico until 20 days prior to her nineteenth birthday, she would have satisfied the requirements to confer derivative citizenship on her child. It is this gender‐based difference in treatment that Morales‐Santana claims violated his father’s right to equal protection.
The Court finds that the Morales-Santana has standing to raise the differential as applied to his parents and that the difference between unwed mothers and unwed fathers is "of the same genre of classifications" as the one in landmark sex equality cases, thus "heightened scrutiny is in order." The Court finds that there is no exceedingly persuasive justification and notes that the statutory scheme dates "from an era when the lawbooks of our Nation were rife with overbroad generalizations about the way men and women are." The Court also concluded that previous immigration cases, such as Nguyen v. INS, (2001) which upheld gender discrimination regarding establishment of paternity were not controlling. The Court rejected the government's rationale of "risk-of-statelessness" for the children as being "an assumption without foundation."
Despite the Court's resounding conclusion that the provision violates equal protection, the Court declines to extend the shorter unwed mother residency period to the unwed father. Instead, the "right of equal treatment" here should be a withdrawal of benefits from the favored class (women) rather than an extension of benefits to the disfavored class (men). The Court states that any choice between the methods of achieving equal treatment "is governed by the legislature's intent, as revealed by the statute at hand." Thus, although the general approach is extension of benefits, because the statutory general rule was the longer one, the exception for favorable treatment is the one that should be stricken.
Thus, this is one of those relatively rare equal protection cases in which the challenger wins the battle to have the provision declared unconstitutional, but loses the war because equal treatment becomes the harsher rule.
Monday, June 5, 2017
The Supreme Court ruled today that intervenors as of right under Rule 24(a)(2) have to meet Article III standing requirements if they wish to pursue relief not requested by a plaintiff.
But the Court didn't say whether the intervenor in the case sought relief different from the plaintiff. Instead, the Court remanded for further consideration on that point.
The case involved Steven Sherman's regulatory takings lawsuit against the town of Chester, New York, for holding up his housing subdivision project, MareBrook. A real estate development corporation, Laroe Estates, Inc., paid Sherman more than $2.5 million for a portion of the property, but agreed to transfer a certain number of lots back to Sherman when the town approved the development. Under the agreement, Laroe also had authority to settle a debt that Sherman owed a bank and to terminate the agreement with Sherman if the settlement failed. It did fail, and the bank took over the property, but Laroe didn't terminate its agreement with Sherman.
Laroe moved to intervene as of right pursuant to Rule 24(a)(2).
The Court ruled that Laroe had to satisfy Article III standing, if it sought relief different than the relief that Sherman sought. (The parties (and the United States as amicus) all agreed on this.) But the Court said that the record was ambiguous as to the relief that Laroe actually sought. So it remanded the case for further proceedings.
If the lower courts determine that Laroe seeks relief that's different than the relief that Sherman seeks--including the same relief, but in its own (not Sherman's) name--Laroe will have to demonstrate its own Article III standing.
Thursday, May 25, 2017
In its opinion in International Refugee Assistance Project (IRAP) v. Trump, heard by the en banc court without an intervening panel decision, the court affirmed in almost every respect Maryland District Judge Theodore Chuang's Opinion and nationwide injunction against the President's March 6, 2017 Executive Order "Protecting The Nation From Foreign Terrorist Entry Into The United States" (now numbered EO 13,780), which is colloquially known as the revised travel ban or "Muslim Ban 2.0." The court heard oral argument on May 8.
The court's opinion finding that the plaintiffs have standing and that the plaintiffs are likely to succeed on the merits of their Establishment Clause challenge to the Executive Order was authored by Chief Judge Roger Gregory with six other judges joining in full in the almost 80 page opinion. Additional opinions bring the total opinion pages to over 200: three other judges concurred in separate opinions; Three judges dissented in separate opinions (with the dissenters joining each of the dissenting opinions). Recall that two other judges recused.
On the merits of the Establishment Clause claim as applied to an Executive Order involving immigration, Judge Gregory's opinion for the court agreed with the United States that the deferential standard in Kleindienst v. Mandel (1972) is the appropriate starting point but disagreed with the government that it ended the inquiry. Instead, "Mandel's requirement that an immigration action be 'bona fide' may in some instances compel more searching judicial review." The court found that while the national security interest was facially legitimate, the plaintiffs made a requisite showing that it was provided in "bad faith."
Plaintiffs point to ample evidence that national security is not the true reason for EO-2, including, among other things, then-candidate Trump’s numerous campaign statements expressing animus towards the Islamic faith; his proposal to ban Muslims from entering the United States; his subsequent explanation that he would effectuate this ban by targeting “territories” instead of Muslims directly; the issuance of EO-1, which targeted certain majority-Muslim nations and included a preference for religious minorities; an advisor’s statement that the President had asked him to find a way to ban Muslims in a legal way; and the issuance of EO-2, which resembles EO-1 and which President Trump and his advisors described as having the same policy goals as EO-1. [citations to record omitted]. Plaintiffs also point to the comparably weak evidence that EO-2 is meant to address national security interests, including the exclusion of national security agencies from the decisionmaking process, the post hoc nature of the national security rationale, and evidence from DHS that EO-2 would not operate to diminish the threat of potential terrorist activity.
Having cleared the hurdle of Mandel, the court then considered the application of the Establishment Clause test articulated in Lemon v. Kurtzman, noting that "in the context of this case, there is an obvious symmetry between Mandel's "bona fide" prong and the constitutional inquiry establishment in Lemon. Both tests ask courts to evaluate the government's purpose for acting."
Thus, Judge Gregory's opinion analyzed some of the same material regarding the EO's bona fide quality to determine whether the EO had a primary secular government purpose as required under Lemon's first prong. But the analysis the court conducted under Lemon was much more detailed. The court relied upon McCreary County v. ACLU of Kentucky (2005), in which the United States Supreme Court concluded that a judge's initial removal of his posting of the Ten Commandments in the courthouse was not cured by his subsequent posting of the biblical text surrounded by other texts. In McCreary, the Court articulated the correct viewpoint as the "reasonable objective observer" who should take into account the traditional external signs but should not perform judicial psychoanalysis.
It is this portion of the opinion (Part IVA2; pages 54-70 in text) regarding the purpose of EO-2 that is central. The court finds there is a "compelling case" that EO-2's "primary purpose is religious." It begins by discussing the candidate's campaign statements, later rejecting the argument that these statements should be subject to a "bright-line rule" that they should not be considered. Instead, the court states that the "campaign statements here are probative of purpose because they are closely related in time, attributable to the primary decisionmaker, and specific and easily connected to the challenged action."
Just as the reasonable observer’s “world is not made brand new every morning,” McCreary, nor are we able to awake without the vivid memory of these statements. We cannot shut our eyes to such evidence when it stares us in the face, for “there’s none so blind as they that won’t see.” Jonathan Swift, Polite Conversation 174 (Chiswick Press ed., 1892). If and when future courts are confronted with campaign or other statements proffered as evidence of governmental purpose, those courts must similarly determine, on a case-by-case basis, whether such statements are probative evidence of governmental purpose. Our holding today neither limits nor expands their review.
Moreover, the court considered the by now familiar statements by spokespeople: advisor and former mayor Rudolph Guiliani on EO-1; Senior Policy Advisor Miller and White House Press Secretary Spicer on EO-2. The court further found that the government's argument that EO-2's primary purpose was national security rather than religious
is belied by evidence in the record that President Trump issued the First Executive Order without consulting the relevant national security agencies, J.A. 397, and that those agencies only offered a national security rationale after EO-1 was enjoined. Furthermore, internal reports from DHS contradict this national security rationale, with one report stating that “most foreign-born, US-based violent extremists likely radicalized several years after their entry to the United States, limiting the ability of screening and vetting officials to prevent their entry because of national security concerns.” According to former National Security Officials, Section 2(c) serves “no legitimate national security purpose,” given that “not a single American has died in a terrorist attack on U.S. soil at the hands of citizens of these six nations in the last forty years” and that there is no evidence of any new security risks emanating from these countries. Corrected Brief for Former National Security Officials as Amici Curiae Supporting Appellees 5–8, ECF No. 126-1. Like the district court, we think this strong evidence that any national security justification for EO-2 was secondary to its primary religious purpose and was offered as more of a “litigating position” than as the actual purpose of EO-2. See McCreary, 545 U.S. at 871 (describing the government’s “new statements of purpose . . . as a litigating position” where they were offered to explain the third iteration of a previously enjoined religious display). And EO-2’s text does little to bolster any national security rationale: the only examples it provides of immigrants born abroad and convicted of terrorism-related crimes in the United States include two Iraqis—Iraq is not a designated country in EO-2—and a Somalian refugee who entered the United States as a child and was radicalized here as an adult. EO-2, § 1(h). The Government’s asserted national security purpose is therefore no more convincing as applied to EO-2 than it was to EO-1.
In short, the court found that EO-2 cannot be divorced from the cohesive narrative linking it to the animus that inspired it," and thus EO-2 "likely fails Lemon's purpose prong" and is unconstitutional under the Establishment Clause.
The court affirmed the preliminary injunction as appropriately nationwide, but did agree with the government that the injunction should not be issued "against the President himself." Thus, the injunction was lifted in that regard, although the court noted that while the President was not directly bound, the court assumes "it is substantially likely" that the President would abide by the the court's authoritative interpretation of section 2 of EO-2.
Recall that a Ninth Circuit panel is also considering the constitutionality of EO-2; it heard oral arguments on May 15 in Hawai'i v. Trump.
Wednesday, May 24, 2017
The Fourth Circuit ruled yesterday that a case challenging the NSA's upstream surveillance program can move forward. The ruling reverses a district court ruling that dismissed the case for lack of standing, citing Clapper v. Amnesty International. The Fourth Circuit distinguished Clapper, however, and let the case move forward.
In short, the two key differences in Clapper: Wikimedia has more communications with a larger, more comprehensive reach than the plaintiffs in Clapper; and the plaintiffs here learned (and pleaded) more about the nature of the program.
In so ruling, the court followed the Third Circuit's approach in a similar case last year, Schuchardt v. President of the United States.
The case involved two challenges to the upstream surveillance program under Section 702 of the FISA Amendments Act of 2008. (This program authorizes the government, subject to certain controls, to collect and search electronic communications between an overseas target and a person in the US.) In the first challenge, the "Wikimedia challenge," Wikimedia argued that given its size and amount of international communications, and given the nature of the upstream surveillance program, the NSA necessarily collected at least some of its Internet communications. In the second challenge, the "dragnet challenge," plaintiffs argued that the nature of the NSA program alone likely meant that the NSA in fact collects all Internet communications. (The plaintiffs in this case had more information about the nature of the program than the plaintiffs in the earlier Clapper case, so could plead a stronger argument.)
The court ruled that "Wikimedia has plausibly alleged that its communications travel all the roads that a communication can take, and that the NSA seizes all of the communications along at least one of those roads." Moreover, "because Wikimedia has self-censored its speech and sometimes forgone electronic communications in response to Upstream surveillance, it also has standing to sue for a violation of the First Amendment." As to Clapper: "Unlike in Clapper, where the plaintiffs based their theories of standing on prospective or threatened injury and actions taken in response thereto, Wikimedia pleaded an actual and ongoing injury [actual, not speculative, collection of at least some of Wikimedia's communications], which renders Clapper's certainly-impending analysis inapposite here.
But at the same time, the court ruled that the plaintiffs lacked standing to assert the dragnet challenge. In short, the court said that the plaintiffs could not "plausibly establish that the NSA is intercepting 'substantially all' text-based communications entering and leaving the United States." (In contrast, Wikimedia only had to show that the NSA is conducting upstream surveillance on a single backbone link on the Internet connections to the United States, which it did.)
Judge Davis concurred with the result as to the Wikimedia challenge, but dissented as to the dragnet challenge: "However, because I would find that the non-Wikimedia Plaintiffs also have standing, I respectfully dissent in part."
Monday, May 22, 2017
In its opinion in Cooper v. Harris, formerly McCrory v. Harris, the Court affirmed the findings of a three-judge District Court that North Carolina officials violated the Equal Protection Clause in the 2011 redistricting with regard to two districts: District 1 and District 12.
Recall that in Bethune-Hill v. Virginia State Board of Elections (argued the same day as Cooper v. Harris), the Court clarified the analysis for reviewing racial gerrymandering claims and remanded the matter back to the three judge District Court to determine 11 out of the 12 districts at issue.
Justice Elana Kagan, writing for majority in Cooper v. Harris, provides the analytic structure for assessing challenges to racial gerrymandering under the Equal Protection Clause:
- First, the plaintiff must prove that “race was the predominant factor motivating the legislature’s decision to place a significant number of voters within or without a particular district,” quoting Miller v. Johnson (1995). This means that the legislature "subordinated other factors," including geographic ones, partisan advantage, and "what have you" to racial considerations.
- Second, if racial considerations predominated over others, the design of the district must withstand strict scrutiny, requiring a compelling governmental interest achieved by narrowly tailored means.
- A recognized compelling governmental interest is compliance with the Voting Rights Act (VRA) is a compelling governmental interest. "This Court has long assumed that one compelling interest is complying with operative provisions of the Voting Rights Act of 1965."
- To satisfy the narrow-tailoring requirement, the state must show that it had “a strong basis in evidence” for concluding that the VRA required its action. "Or said otherwise, the State must establish that it had “good reasons” to think that it would transgress the Act if it did not draw race-based district lines," a standard which "gives States “breathing room” to adopt reasonable compliance measures that may prove, in perfect hindsight, not to have been needed."
The Court unanimously agrees that District 1 fails this standard. The racial intent in redistricting was clear. As to the means chosen, the Court rejected North Carolina's argument that it redesigned the district to comply with the VRA because in fact District 1 had historically been a "cross-over" district in which "members of the majority help a large enough minority to elect a candidate of its choice. In other words, there was no 'White Bloc' operating in District 1. The Court rejected North Carolina's argument that this could occur in the future, especially since the entire state was being redrawn. The Court notes that the officials seemed to believe - - - incorrectly - - - that they were required to draw a majority Black district, despite any evidence of "cross-over."
image: Appendix 1 to Court's opinion;
note District 1 in yellow and District 12 in orange.
The Court divided on the constitutionality of District 12, however. The only issue was whether or not the redistricting was racial; North Carolina did not argue it could satisfy strict scrutiny if race predominated. Writing for the Court, Justice Kagan, joined by Justices Thomas, Ginsburg, Breyer, and Sotomayor, affirmed the findings of the three judge district court that District 12 was redrawn with reference to race. North Carolina contended that the officials redrew the district only with reference to political affiliation (which would not violate the Equal Protection Clause), arguing that the goal was to "pack" District 12 with Democrats (and thereby render other districts more Republican). Justice Kagan noted that the determination of whether an act was racially-motivated or politically-motivated involved a "sensitive inquiry" and that racial identification is "highly correlated" with political affiliation. But for the majority, the District Court's finding of racial predominance must be affirmed:
The evidence offered at trial, including live witness testimony subject to credibility determinations, adequately supports the conclusion that race, not politics, accounted for the district’s reconfiguration. And no error of law infected that judgment: Contrary to North Carolina’s view,the District Court had no call to dismiss this challenge just because the plaintiffs did not proffer an alternative design for District 12 as circumstantial evidence of the legislature’s intent.
Writing the dissenting opinion, Justice Alito, joined by Chief Justice Roberts and Justice Kennedy (who authored Bethune-Hill), vigorously contested the finding of racial intent. Alito faults the majority as well as the District Court as being obtuse: "The majority’s analysis is like Hamlet without the prince." This bit of snark in the body of the dissent, earns a rebuke from the majority in a footnote to its statement that this district is back before the Court for the sixth time, criticizing the dissent for simply adopting North Carolina's version: "Imagine (to update the dissent’s theatrical reference) Inherit the Wind retold solely from the perspective of William Jennings Bryan, with nary a thought given to the competing viewpoint of Clarence Darrow." In a counter footnote, Alito defends the opinion from merely accepting North Carolina's explanation.
The alternative map argument is also a point of contention. For the majority, it is one way of demonstrating that the redistricting officials acting on the basis of race:
If you were really sorting by political behavior instead of skin color (so the argument goes) you would have done—or, at least, could just as well have done—this. Such would-have, could-have, and (to round out the set) should-have arguments are a familiar means of undermining a claim that an action was based on a permissible,rather than a prohibited, ground.
But, the majority emphasizes, such strategies are "hardly the only way." For the dissent, a passage from Easley v. Cromartie, (2001) (Cromartie II), involving essentially the same district, is determinative: plaintiffs must show that the officials could have achieved their political goals in a manner with more racial balance.
Interestingly, in his brief concurring opinion, Justice Thomas references Cromartie II, in which he dissented. Thomas contends that Cromartie II misapplied the "deferential standard for reviewing factual findings," an error which the present decision "does not repeat."
May 22, 2017 in Cases and Case Materials, Courts and Judging, Elections and Voting, Equal Protection, Fourteenth Amendment, Opinion Analysis, Race, Reconstruction Era Amendments, Supreme Court (US) | Permalink | Comments (0)
Wednesday, May 17, 2017
The D.C. Circuit ruled yesterday that Backpage.com's challenge to a subpoena issued by the Senate Permanent Subcommittee on Investigations was moot. The court dismissed Backpage.com's case and vacated earlier district court rulings.
The case arose when the Subcommittee sought to enforce its subpoena for Backpage.com documents to aid its investigation into the web-site's facilitation of sex trafficking. While the case worked its way between the district court and the D.C. Circuit, Backpage.com voluntarily provided the Subcommittee with a good many of the documents the Subcommittee sought (but withheld some other documents under claims of privilege). Before the D.C. Circuit could rule on Backpage.com's challenge to the subpoena, the Subcommittee wrapped up its investigation based on the released documents and issued its final report. The Subcommittee then moved to dismiss the case as moot.
In its ruling yesterday, the D.C. Circuit agreed with the Subcommittee. The court rejected Backpage.com's argument that the district court might still order some relief (for example, an order that the Subcommittee destroy or return the documents still in its possession), thus keeping the case alive, because "the separation of powers, including the Speech or Debate Clause," bars a court from ordering a congressional committee to release documents used in a lawful investigation. In particular, the court wrote that under circuit law "the Clause affords Congress a 'privilege to use materials in its possession without judicial interference,' even where unlawful acts facilitated their acquisition." (Unlawful acts did not facilitate their acquisition here; instead, Backpage.com provided them.) In short, once documents come into the hands of a committee, "the subsequent use of the documents by the committee staff in the course of official business is privileged legislative activity."
The court rejected Backpage.com's argument that the Subcommittee waived its privilege by voluntarily subjecting itself to the court's jurisdiction (when it filed to enforce the subpoena): "[w]hen Congress petitions the court in a subpoena enforcement action, Congress does not waive its immunity from court interference with its exercise of its constitutional powers."
The court also rejected Backpage.com's argument that the case was capable of repetition but evading review. The court said a repeat was simply too speculative.
The ruling doesn't leave future subjects of congressional subpoenas without a remedy. According to the court, such subjects should refuse to comply during the legal proceedings so that the courts can hear their objections on the merits.
In other words, Backpage.com's mistake was voluntarily releasing the documents in the first place.
The separation-of-powers part of the ruling stands in contrast to the Court's holding in Church of Scientology of California v. United States, a case that the D.C. Circuit distinguished. In Church of Scientology, the IRS filed a petition to enforce a summons against a state-court clerk for tape recordings related to the Church in district court, and the Church intervened to oppose. While the case was on appeal, the clerk released the tapes to the IRS, at while point the appellate court dismissed the case as moot. The Supreme Court reversed, however, explaining that the case remained alive because the district court could still issue relief to the Church--a "destroy or return" order.
The D.C. Circuit said that Church of Scientology was different, however, because "the separation of powers, including the Speech or Debate Clause," bars a court from ordering that same kind of relief against Congress.
Monday, May 15, 2017
A panel of the Ninth Circuit - - - Judge Ronald Gould, Judge Richard Paez, and Senior Judge Michael Hawkins - - - heard oral arguments in Hawai'i v. Trump, the appeal from the preliminary injunction against the President's March 6, 2017 Executive Order "Protecting The Nation From Foreign Terrorist Entry Into The United States" (now numbered EO 13,780) (colloquially known as the revised travel ban or "Muslim Ban 2.0").
Arguing for the DOJ in favor of the United States was Acting Solicitor General Jeffrey Wall, who also argued the same position a week ago in the Fourth Circuit en banc argument in Trump v. International Refugee Assistance Project (IRAP). Indeed, there were specific references in the Ninth Circuit argument to that argument with regard to the scope of the injunction in Hawai'i v. Trump. The argument spent a fair amount of time on the statutory claims, which were a basis of Maryland District Judge Theodore Chuang's injunction on appeal to the Fourth Circuit, but were not the basis of the injunction by Hawai'i District Judge Derrick Watson, who ruled on the basis of the Establishment Clause. The issue of standing also peppered the arguments. Wall's argument in the Ninth Circuit seemed less emphatic about the "presumption of regularity" entitled to the President than the argument last week, perhaps because of intervening events. Wall certainly did, however, hammer the Government's point that the deferential standard of Kleindienst v. Mandel (1972) should apply. And although it was not specifically referenced, the dissent from en banc review in a Ninth Circuit precursor case, Washington v. Trump, which largely rested on Mandel, implicitly shaped the arguments.
For his part, arguing for Hawai'i, Neal Katyal, formerly with the Department of Justice, stressed that the Ninth Circuit's panel opinion in Washington v. Trump should be the model. Katyal argued that the EO was unprecedented.
The video of the argument is worth watching, not only for its explication of the issues, but also as examples of excellent appellate advocacy.
However, there was a quite odd interchange regarding Neal Katyal's previous litigation stances. At around 52:03 in the video above, Senior Judge Hawkins said to Katyal, "You have argued in the past to give deference to the Executive in immigration matters." After Katyal's acknowledgement, Judge Hawkins refers to an amicus brief in United States v. Texas and reads a passage. The brief to which Hawkins seems to have been referring is Brief of Former Commissioners of the United States Immigration and Naturalization Service as Amici Curiae In Support Of Petitioners and the portions seem to be from page 12 of the brief, supporting the Congressional grant of wide authority to make decisions regarding deferred action in immigration deportations. After Katyal's response, Judge Hawkins made a second reference: "You also wrote a brief in Flores-Villar." The brief to which Hawkins refers is Katyal's brief as Acting Solicitor General for the Respondent United States in Flores-Villar v. United States, involving a mother-father differential for unwed parents. Judge Hawkins reads the following passage without the case references or citations:
[T]he United States’ “policy toward aliens” is “vitally and intricately interwoven with * * * the conduct of foreign relations,” a power that likewise is vested in the political Branches. Harisiades v. Shaughnessy, 342 U.S. 580, 588-589 (1952). “Any rule of constitutional law that would inhibit the flexibility of the political branches of government to respond to changing world conditions should be adopted only with the greatest caution.” Mathews v. Diaz, 426 U.S. 67, 81 (1976).
Katyal responds that when he was with the United States Government he tried to convince the United States Supreme Court of this, but the Court "did not bite." Recall that Flores-Villar was a 4-4 affirmance of the Ninth Circuit.
Certainly, both United States v. Texas, which has usually surfaced in the context of a state's standing, and Flores-Villar are somewhat pertinent immigration cases involving the scope of judicial deference. Nevertheless, specific references to an individual attorney's briefs does seem unusual.
May 15, 2017 in Congressional Authority, Courts and Judging, Current Affairs, Due Process (Substantive), Establishment Clause, Executive Authority, First Amendment, Oral Argument Analysis, Recent Cases, Standing | Permalink | Comments (0)
Wednesday, April 19, 2017
The United States Supreme Court's opinion in Nelson v. Colorado opened with this seemingly simple question:
When a criminal conviction is invalidated by a reviewing court and no retrial will occur, is the State obliged to refund fees, court costs, and restitution exacted from the defendant upon, and as a consequence of, the conviction?
Writing for the six Justice majority, Justice Ginsburg provided an equally simple response: "Our answer is yes."
The statutory scheme, Colorado's Compensation for Certain Exonerated Persons, provided the "exclusive process" for seeking a refund of costs, fees, and restitution according to the Colorado Supreme Court. However, recovery under this Exoneration Act applied "only to a defendant who has served all or part of a term of incarceration pursuant to a felony conviction, and whose conviction has been overturned for reasons other than insufficiency of evidence or legal error unrelated to actual innocence." The petitioners in the case were not within this category: one was convicted, had her conviction reversed, and was acquitted on retrial; the other was convicted, had one conviction reversed on appeal and another conviction vacated on postconviction review, and the state elected not to retry. The first petitioner was assessed more than $8,000 in costs, fees, and restitution and had $702.10 deducted from her inmate account while she was in jail; the second petitioner was assessed more than $4,000 in costs, fees, and restitution and paid the state $1977.75.
Justice Ginsburg's concise opinion articulates and applies the well-established balancing test for procedural due process from Matthews v. Eldridge (1976), under which a court evaluates a court evaluates (A) the private interest affected; (B) the risk of erroneous deprivation of that interest through the procedures used; and (C) the governmental interest at stake.
The Court rejected Colorado's claim that the petitioners' had no private interest in regaining the money given that the convictions were "in place" when the funds were taken. Justice Ginsburg concluded that it makes no difference whether the initial court or a reviewing court adjudged the petitioners not guilty. To rule otherwise would be inconsistent with the presumption of innocence notion fundamental to "our criminal law." As to the risk of erroneous deprivation, Justice Ginsburg made clear that the risk was high and stressed that the petitioners were seeking refund rather than "compensation for temporary deprivation" of those funds such as interest. Finally, Justice Ginsburg's opinion for the Court found that Colorado has "no interest in withholding" the money "to which the State currently has zero claim of right."
Justice Alito, writing in a concurring opinion only for himself, contended that the correct standard was not Matthews v. Eldridge, but Medina v. California (1992) as Colorado had argued. For Alito, Medina was the correct standard because the refund obligation was part of the criminal process, especially pertinent with reference to restitution. Nevertheless, Alito concluded that even under Medina, stressing an historical inquiry, the Colorado statute failed due process: placing a heavy burden on criminal defendants, providing no opportunity for misdemeanor convictions, and excluding all but claims for actual innocence.
Justice Thomas, also writing only for himself, issued a dissenting opinion, arguing that the issue is whether the petitioners can show a "substantive" entitlement to a return of the money they paid. He concludes that they have no "substantive" right because once the petitioners paid the money - - - however wrongly - - - it became public funds to which they had no entitlement. Thus, because the "Due Process Clause confers no substantive rights," the petitioners have no right to a refund, despite the "intuitive and rhetorical appeal" of such a claim.
While the statute was amended to include vacated convictions effective September 2017, such an amendment may not be comprehensive enough to save the statutory scheme. While the Court does not discuss the widespread problem of carceral debt, there is a burgeoning scholarship on this issue.
[image: "A debtor in Fleet Street Prison, London" by Thomas Hosmer Shepherd, circa first half of the 19th century, via].
The Center for Responsibility and Ethics in Washington sought to tighten standing by adding plaintiffs to its complaint against President Trump for violations of the Emoluments Clause. We previously posted on the case here.
CREW's standing to sue was sure to be an early issue, even a roadblock, in the case. So the organization added plaintiffs ROC United, a nonprofit corporation with restaurant members and a restaurant owner in its own right, and an individual who books events for Washington hotels. Both new plaintiffs argue that President Trump, by doing and gaining business at his own hotels and restaurants in violation of the Emoluments Clause, is harming their bottom line by taking away business.
The move is designed the tighten standing. In order to sue in federal court, a plaintiff has to show that they suffered an actual or imminent concrete and particularized injury, that the defendant's alleged actions caused the injury, and that their requested relief would redress their injury. The amended complaint almost surely satisfies these requirements, but we're still likely to see a motion to dismiss for lack of standing.
Sunday, April 16, 2017
In an opinion in excess of 100 pages in McGehee v. Hutchinson, United States District Judge Kristine Baker enjoined the scheduled execution of McGehee and eight other plaintiffs based on their likelihood to succeed on their Eighth Amendment and First Amendment claims.
The case arises from a highly unusual compressed execution schedule: "Governor Hutchinson set eight of their execution dates for an 11-day period in April 2017, with two executions to occur back-to-back on four separate nights." Judge Baker rejected the claim that the schedule alone violated any "evolving standards of decency" under the Eighth Amendment.
However, this unusual schedule did play some part in Judge Baker's conclusion that there was a likelihood of success on the merits of the plaintiffs' Eighth Amendment challenge to the use of midazolam as cruel and unusual punishment.
In a detailed recitation of the facts, including expert testimony rendered by both the plaintiffs and the State, Judge Baker noted that she "received much evidence in the last four days " and "filtered that evidence, considerable amounts of which involved scientific principles," and converted it into lay terms in the opinion. At times, Judge Baker's assessment of the expert testimony is quite precise: "Defendants’ witness Dr. Antognini’s reliance on animal studies while defense counsel simultaneously challenged plaintiffs’ witness Dr. Steven’s reliance on animal and in vitro studies seems inconsistent. This inconsistency went largely unexplained."
This factual record is important for applying the test for a challenge to a method of execution as the United States Supreme Court articulated in Glossip v. Gross (2015). As Judge Baker explained, plaintiffs have the burden of proving that “the State's lethal injection protocol creates a demonstrated risk of severe pain” and “the risk is substantial when compared to the known and available alternatives.” On the first prong, Judge Baker concluded there is a "significant possibility" that plaintiffs will succeed in showing that the use of midazolam in the Arkansas Department of Corrections (ADC) "current lethal injection protocol qualifies as an objectively intolerable risk that plaintiffs will suffer severe pain." She continued that the
risk is exacerbated when considering the fact that the state has scheduled eight executions over 11 days, despite the fact that the state has not executed an inmate since 2005. Furthermore, the ADC’s execution protocol and policies fail to contain adequate safeguards that mitigate some of the risk presented by using midazolam and trying to execute that many inmates in such a short period of time.
The second prong under Glossip requires plaintiffs to show that “the risk is substantial when compared to the known and available alternatives.” Judge Baker stated that the "Supreme Court has provided little guidance as to the meaning of 'availability' in this context, other than by stating that the alternative method must be 'feasible, readily implemented, and in fact significantly reduce a substantial risk of severe pain.’" She then discussed the conflicting standards in the Circuits, concluding that the "approach taken by the Sixth Circuit provides a better test for 'availability' under Glossip," because the "Eleventh Circuit’s understanding of “availability” places an almost impossible burden on plaintiffs challenging their method of execution, particularly at the preliminary injunction stage." In deciding that there were alternatives available, Judge Baker found that "there is a significant possibility that pentobarbital is available for use in executions." The opinion noted that other states have carried out executions with this drug. The opinion also noted that "plaintiffs have demonstrated a significant possibility that the firing squad is a reasonable alternative."
Thus, Judge Baker found that both prongs of Glossip were likely to be satisfied under the Eighth Amendment claim.
On the First Amendment claim, the essence was that the limitations placed on counsel viewing the execution would deprive plaintiffs of their access to the courts during that time. Judge Baker noted there was some confusion regarding the actual viewing policy that would be operative, with the Director having "taken three or four different positions regarding viewing policies" during litigation. But, the "key aspect" of any policy "would force plaintiffs’ counsel to choose between witnessing the execution and contacting the Court in case anything should arise during the course of the execution itself."
In analyzing the First Amendment claim, Judge Baker used the highly deferential standard of Turner v. Safely (1987), with its four factors:
- First, “there must be a ‘valid, rational connection’ between the prison regulation and the legitimate government interest put forward to justify it.”
- Second, courts must consider “whether there are alternative means of exercising the right that remain open to prison inmates.”
- “A third consideration is the impact accommodation of the asserted constitutional right will have on guards and other inmates, and on the allocation of prison resources generally.”
- Finally, “the absence of ready alternatives is evidence of the reasonableness of a prison regulation.”
Judge Baker held that while there was a valid rational connection, there were alternative means and no impact on other prisoners. Thus, Judge Baker enjoined the Director "from implementing the viewing policies insofar as they infringe plaintiffs’ right to counsel and right of access to the courts," and charged the Director "with the task of devising a viewing policy that assures plaintiffs’ right to counsel and access to the courts for the entire duration of all executions."
Judge Baker issued her Preliminary Injunction on Saturday, April 15. Reportedly, there is already an emergency appeal to the Eighth Circuit, as well as an appeal of a stay by a state court judge to the Arkansas Supreme Court.
Wednesday, March 29, 2017
In its opinion in Expressions Hair Design v. Schneiderman, a unanimous Court reversed the Second Circuit's conclusion that the First Amendment was not applicable to a New York statute prohibiting a credit card surcharge.
At issue is New York General Business Law § 518 prohibiting sellers from imposing a surcharge on customers who use credit cards. On the other hand, the statute allowed a "cash discount." United States District Judge Jed Rakoff had held that the New York statute regulated speech, limiting how merchants could express their differential pricing, and concluded that the statute failed the test for constitutional commercial speech under Central Hudson Gas & Electric Corp. v. Public Service Commission (1980). The Second Circuit did not reach the Central Hudson analysis given its conclusion that there was no speech, commercial or otherwise, only conduct. The United States Supreme Court holds the statute regulates speech, at least as applied here.
The law tells merchants nothing about the amount they are allowed to collect from a cash or credit card payer. Sellers are free to charge $10 for cash and $9.70, $10, $10.30, or any other amount for credit. What the law does regulate is how sellers may communicate their prices. A merchant who wants to charge $10 for cash and $10.30 for credit may not convey that price any way he pleases. He is not free to say “$10,with a 3% credit card surcharge” or “$10, plus $0.30 for credit” because both of those displays identify a single sticker price—$10—that is less than the amount credit card users will be charged. Instead, if the merchant wishes to post a single sticker price, he must display $10.30 as his sticker price. Accordingly, while we agree with the Court of Appeals that §518 regulates a relationship between a sticker price and the price charged to credit card users, we cannot accept its conclusion that §518 is nothing more than a mine-run price regulation. In regulating the communication of prices rather than prices themselves, §518 regulates speech.
The Court did not proceed further, but remanded the case to the Second Circuit to assess 518's constitutionality, presumably under Central Hudson. However, in a footnote the Court made clear that there is a question as to whether 518 would prohibit a "two-sticker pricing scheme" such as the one that Hair Expression uses.
Justice Breyer's brief concurring opinion points out that the speech/conduct distinction may not be the wisest path, but instead the courts should consider how the challenged government action "affects an interest that the First Amendment protects." Here, Justice Breyer contends that 518 is unclear as to whether it is actually regulating disclosure (in which case the rational basis standard of Zauderer v. Office of Disciplinary Counsel of Supreme Court of Ohio (1985) would apply) or whether it is more traditional commercial speech under Central Hudson.
This lack of clarity in the statute causes Justice Breyer to agree with the concurring opinion by Justice Sotomayor, joined by Justice Alito, that the interpretation of the statute should be certified to New York's highest court. Sotomayor's opinion criticizes the Second Circuit for not certifying the question previously, but for choosing a "convoluted course": it "rejected certification, abstained in part,' and decided the question in part," requiring a division in the petitioners' First Amendment challenge.
Sotomayor makes it clear that the "Court's opinion does not foreclose" the Second Circuit from choosing the certification route on remand. It remains to be seen what the Second Circuit will do, but it would probably be well-advised to avail itself of the certification process.
Saturday, March 25, 2017
In his opinion in Sarsour v. Trump, United States District Judge for the Eastern District of Virginia Anthony Trenga denied the Plaintiffs' motion for Temporary Restraining Order or Preliminary Injunction.
At issue is the President's March 6, 2017 Executive Order "Protecting The Nation From Foreign Terrorist Entry Into The United States" (now numbered EO 13,780), which is colloquially known as the revised travel ban or "Muslim Ban 2.0."
Recall that the original EO, 13769, issued January 27, 2017, also entitled "Protecting The Nation From Foreign Terrorist Entry Into The United States," was enjoined by the Ninth Circuit in Washington v. Trump,; our backgrounder on the issues is here. The President withdrew the initial EO and the Ninth Circuit denied the sua sponte motion for en banc review, but in a somewhat unusual step there was a substantive dissenting opinion authored by Judge Jay Bybee.
Recall also that regarding the March 6, 2017 EO ("Muslim Travel Ban 2.0"), two other federal district judges issued injunctions before the EO became effective. In Hawai'i v. Trump, United States District Judge Derrick Watson issued a TRO of sections 2 and 6 of the EO based on the likelihood of plaintiffs to prevail on their Establishment Clause challenge. In International Refugee Assistance Project (IRAP) v. Trump, Maryland District Judge Theodore Chuang issued a preliminary injunction of section 2(e) of the EO based on the likelihood of plaintiffs to prevail on their statutory claim under the Immigration and Nationality Act and their constitutional claim under the Establishment Clause.Judge Trenga disagrees with both Hawai'i v. Trump and IRAP v. Trump, although the opinion does not engage in a substantial dialogue with these opinions.
For example, on the statutory claim in Sarsour v. Trump, Judge Trenga concludes after reviewing "the text and structure of the INA as a whole, and specifically, the practical, operational relationships" of the provisions, that the nondiscrimination restrictions of §1152 do not "apply to the issuance or denial of non-immigrant visas or entry under §1182(f). In a footnote, Judge Trenga acknowledges that the judge in IRAP v. Trump "attempted to reconcile these seemingly contradictory provisions," and simply adds, "There, the court concluded that Section 1152 bars the President from discriminating on the basis of nationality in the issuance of immigrant visas only." (footnote 12). Judge Trenga characterized the Immigration and Nationality Act (INA) as a "legislative rabbit warren that is not easily navigated," but his ultimate conclusion seems to be based on a broad view of Executive authority. Judge Trenga writes that the he "also has substantial doubts that Section 1152 can be reasonably read to impose any restrictions on the President’s exercise of his authority under Sections 1182(f) or 1185(a)."
Similarly, on the Establishment Clause claim Judge Trenga accorded the Executive broad deference. Unlike the judges in both Hawai'i v. Trump and IRAP v. Trump, Judge Trenga found that the facial neutrality of "EO-2" was determinative. Judge Trenga held that past statements - - - or the EO-2 statements (described in a footnote as including the President's statement that EO-2 was a "watered-down version" of EO-1, and Presidential Advisor Stephen Miller's statements) - - - have not "effectively disqualified him from exercising his lawful presidential authority":
In other words, the substantive revisions reflected in EO-2 have reduced the probative value of the President’s statements to the point that it is no longer likely that Plaintiffs can succeed on their claim that the predominate purpose of EO-2 is to discriminate against Muslims based on their religion and that EO-2 is a pretext or a sham for that purpose. To proceed otherwise would thrust this Court into the realm of “‘look[ing] behind’ the president’s national security judgments . . . result[ing] in a trial de novo of the president’s national security determinations,” Aziz, 2017 WL 580855, at *8, and would require “a psychoanalysis of a drafter’s heart of hearts,” all within the context of extending Establishment Clause jurisprudence to national security judgments in an unprecedented way.
Likewise, on the Equal Protection claim, Judge Trenga concluded that although the EO would have a differential impact on Muslims, it was facially neutral. The Judge relied on an earlier Fourth Circuit case, Rajah v. Mukasy (2008) and articulated the standard as requiring merely a rational national security basis for an immigration measure to survive an Equal Protection Clause challenge. And again, Judge Trenga accorded the Executive wide discretion: "These are judgments committed to the political branches - - - not to the courts."
In sum, Judge Trenga's opinion aligns with the Ninth Circuit dissent from en banc review by Judge Bybee and is in opposition to the other district judges who have rendered opinions on the second EO which have enjoined its enforcement.
March 25, 2017 in Courts and Judging, Current Affairs, Equal Protection, Establishment Clause, Executive Authority, Fifth Amendment, First Amendment, Opinion Analysis, Race, Religion, Standing, Travel | Permalink | Comments (0)
Thursday, March 16, 2017
In International Refugee Assistance Project (IRAP) v. Trump, Maryland District Judge Theodore Chuang issued a nationwide injunction against the President's March 6, 2017 Executive Order "Protecting The Nation From Foreign Terrorist Entry Into The United States" (now numbered EO 13,780), which is colloquially known as the revised travel ban or "Muslim Ban 2.0." The 43 page opinion concludes that the Plaintiffs have a likelihood of success on their claims that the EO violates the Immigration and Nationality Act and violates the Establishment Clause. [Note: Judge Chuang construed the motion for TRO/PI as a motion for a preliminary injunction and issued an injunction.] It closely follows on the TRO issued in Hawai'i v. Trump.
On the issue of standing, Judge Chuang first finds that several of the individual plaintiffs have standing to challenge the EO on statutory grounds, meeting both Article III standing and being within the zone of interests of the statute. Likewise, several plaintiffs have standing to challenge on the EO on Establishment Clause grounds given their personal injury on having family members who are directly and adversely affected by the ban.
Judge Chuang's opinion devotes substantial attention to the Immigration and Nationality Act claim, which has been raised in most of the complaints challenging this EO and its predecessor, but has not been the basis for a judicial restraining order. Here, Judge Chuang concludes that the general power given to the President by 8 U.S.C. §1182(f) to "suspend the entry of all aliens or any class of aliens" is not exempt from the provision of 8 U.S.C. §1152(a) which bars discrimination in the issuance of immigrant visas. Importantly, the exceptions listed in the non-discrimination provision of §1152(a) do not include §1182(f):
Because the enumerated exceptions illustrate that Congress “knows how to expand ‘the jurisdictional reach of a statute,793 the absence of any reference to § 1182(1) among these exceptions provides strong evidence that Congress did not intend for §1182(1) to be exempt from the anti-discrimination provision of §1152(a).
[citation omitted]. Thus, Judge Chuang held that the plaintiffs have a likelihood to succeed on their statutory claim.
On the Establishments Clause claim, Judge Chuang, like other judges, looked to McCreary County v. ACLU of Kentucky (2005), for an interpretation of the first prong of the Lemon test, Lemon v. Kurtzman (1971), requiring an government act to have a secular purpose in order to be constitutional. Noting that finding of purpose is a common task for the courts, Judge Chuang discussed the specific statements in the record "directly establishing that Trump intended to effectuate a partial Muslim ban by banning entry by citizens of specific predominantly Muslim countries deemed to be dangerous, as a means to avoid, for political reasons, an action explicitly directed at Muslims." These statements included the by now familiar statements of candidate Trump and of former-Mayor Guiliani relating to the first EO. Additionally, Judge Chuang found that the despite the changes in the second EO, "the history of public statements continues to provide a convincing case that the purpose of the Second Executive Order remains the realization of the long-envisioned Muslim ban," quoting statements by Senior Policy Advisor to the President Stephen Miller and White House Press Secretary Sean Spicer.
Judge Chuang rejected the Government's argument that such statements should not be considered because they were made outside the formal government decision-making process. Instead, "all of the public statements at issue here are fairly attributable to President Trump."
Moreover, Judge Huang also looked to the language of the second EO itself. He rejected the Government's argument that the second EO's articulation of a national security purpose essentially saves the EO. However, while there should ordinarily be deference to national security, Judge Chuang found that in this "highly unique case," the record provides "strong indications that the national security interest is not the primary purpose of the EO.
- First, the initial EO was adopted without interagency review: "The fact that the White House took the highly irregular step of ﬁrst introducing the travel ban without receiving the input and judgment of the relevant national security agencies strongly suggests that the religious purpose was primary, and the national security purpose, even if legitimate, is a secondary post hoc rationale."
- Second, the national security rationale was offered only after courts issued injunctions against the first EO, similar to litigation in McCreary.
- Third, the EO is an "unprecedented response" to security risks without any triggering event.
Judge Chuang also rejected the Government's argument that deference is warranted. This deference argument was made in a dissenting opinion by Judge Jay Bybee from the Ninth Circuit's denial of en banc review in Washington v. Trump. For Judge Chuang, the deferential standard of Kleindienst v. Mandel (1972), is most "typically applied when a court is asked to review an executive officer's decision to deny a visa" as in Kerry v. Din (2015). The Mandel test does not apply to the promulgation of sweeping immigration policy. Instead, even when exercising their immigration powers, the political branches must choose constitutional permissible means of implementing that power. It is the courts' duty to determine those constitutional boundaries.
Thus, Judge Chuang issued a nationwide injunction against §2(c) of the Executive Order, independent of the injunction earlier that same day of §2, as well as §6, in Hawaii v. Trump.
[image: Photo by Bruce Emmerling of protest of first EO outside courthouse in Baltimore via; note that Judge Chuang does not sit in Baltimore].
Wednesday, March 15, 2017
Recall the proceedings in Washington v. Trump in which a panel opinion upheld an injunction against the January 27, 2017 Executive Order by the President, now popularly known as Muslim Ban I. Because the President withdrew the EO, replacing it with the March 6, 2017 Executive Order "Protecting The Nation From Foreign Terrorist Entry Into The United States" - - - enjoined today in Hawai'i v. Trump - - - proceedings in the Muslim Ban I became irrelevant and the United States dismissed the appeal. Nevertheless, upon the request of a Ninth Circuit judge, a poll was taken to determine whether the Ninth Circuit should hear the case en banc and vacate the panel opinion. Today, the order on this en banc request was rendered, and the "matter failed to receive a majority of the votes of the active
judges in favor of en banc reconsideration."
The order is accompanied by a paragraph concurring opining by Judge Reinhardt:
I concur in our court’s decision regarding President Trump’s first Executive Order – the ban on immigrants and visitors from seven Muslim countries. I also concur in our court’s determination to stand by that decision, despite the effort of a small number of our members to overturn or vacate it. Finally, I am proud to be a part of this court and a judicial system that is independent and courageous, and that vigorously protects the constitutional rights of all, regardless of the source of any efforts to weaken or diminish them.
The dissenting opinion of Judge Bybee, controversial in many quarters for his expansive views of Executive power, argues that the President's EO was "well within the powers of the presidency." Essentially, the dissent argues that the panel opinion did not sufficiently defer to the Executive and Congressional power over immigration. "The appropriate test for judging executive and congressional action affecting aliens who are outside our borders and seeking admission is set forth in Kleindienst v. Mandel, 408 U.S. 753 (1972)." The dissent faults the panel opinion because it "missed" the Court's 2015 opinion in Kerry v. Din, "in which Din (a U.S. citizen) claimed that the government’s refusal to grant her Afghani husband a visa violated her own constitutional right to live with her husband. A plurality held that Din had no such constitutional right."
Judge Bybee's opinion seems to suggest that the panel misconstrued the law in service of the judge's own personal agendas, even as the opinion criticizes personal attacks on judges:
We are all acutely aware of the enormous controversy and chaos that attended the issuance of the Executive Order. People contested the extent of the national security interests at stake, and they debated the value that the Executive Order added to our security against the real suffering of potential emigres. As tempting as it is to use the judicial power to balance those competing interests as we see fit, we cannot let our personal inclinations get ahead of important, overarching principles about who gets to make decisions in our democracy. For better or worse, every four years we hold a contested presidential election. We have all found ourselves disappointed with the election results in one election cycle or another. But it is the best of American traditions that we also understand and respect the consequences of our elections. Even when we disagree with the judgment of the political branches—and perhaps especially when we disagree—we have to trust that the wisdom of the nation as a whole will prevail in the end.
Above all, in a democracy, we have the duty to preserve the liberty of the people by keeping the enormous powers of the national government separated. We are judges, not Platonic Guardians. It is our duty to say what the law is, and the meta-source of our law, the U.S. Constitution, commits the power to make foreign policy, including the decisions to permit or forbid entry into the United States, to the President and Congress. We will yet regret not having taken this case en banc to keep those lines of authority straight.
Finally, I wish to comment on the public discourse that has surrounded these proceedings. The panel addressed the government’s request for a stay under the worst conditions imaginable, including extraordinarily compressed briefing and argument schedules and the most intense public scrutiny of our court that I can remember. Even as I dissent from our decision not to vacate the panel’s flawed opinion, I have the greatest respect for my colleagues. The personal attacks on the distinguished district judge and our colleagues were out of all bounds of civic and persuasive discourse—particularly when they came from the parties. It does no credit to the arguments of the parties to impugn the motives or the competence of the members of this court; ad hominem attacks are not a substitute for effective advocacy. Such personal attacks treat the court as though it were merely a political forum in which bargaining, compromise, and even intimidation are acceptable principles. The courts of law must be more than that, or we are not governed by law at all.
This dissenting opinion serves as a reminder that the question of the amount of deference to the Executive regarding a "Muslim ban" is a contentious one; this dissenting opinion may also serve as a roadmap to the arguments supporting broad executive power.
[Update: Federal District Judge Theodore Chuang finds the Mandel standard inapplicable in his opinion in International Refugee Assistance Project v. Trump].
United States District Judge Derrick Watson has issued a Temporary Restraining Order in Hawai'i v. Trump against the President's March 6, 2017 Executive Order "Protecting The Nation From Foreign Terrorist Entry Into The United States" (now numbered EO 13,780), which is colloquially known as the revised travel ban or "Muslim Ban 2.0." Recall that the original EO, 13769, issued January 27, 2017, also entitled "Protecting The Nation From Foreign Terrorist Entry Into The United States," and now enjoined by the Ninth Circuit in Washington v. Trump, as well as subject to an injunction in Virginia in Aziz v. Trump (note that the state of Virginia intervened). Our backgrounder on the issues is here. Recall also that Judge Watson allowed Hawai'i to amend its original complaint challenging the previous EO.
Judge Watson's more than 40 page opinion first engages in an explanation of the facts giving rise to the litigation.
Next, Judge Watson concludes there is Article III standing. He finds that Hawai'i has standing based on its proprietary interests (and thus there was no need to reach the parens patriae standing theory). The first proprietary interest is the state's financial and intangible interests in its universities, very similar to the interests the Ninth Circuit found sufficient in Washington v. Trump, involving the previous EO. The second proprietary interest was to the state's "main economic driver: tourism." Additionally, Judge Watson concludes that Dr. Elshikh, added as a plaintiff in the amended complaint has standing, specifically addressing the Establishment Clause claim in which injury can be "particularly elusive." Moreover, his claim is ripe.
As to the likelihood of success on the merits prong of the TRO requirement, Judge Watson concluded that the plaintiffs "and Dr. Elshikh in particular" are likely to succeed on the merits of the Establishment Clause claim (and thus the court did not reach the other claims).
Judge Watson acknowledged that the EO does not facially discriminate for or against any particular religion, or for or against religion versus non-religion. There is no express reference, for instance, to any religion nor does the Executive Order—unlike its predecessor—contain any term or phrase that can be reasonably characterized as having a religious origin or connotation.
Nevertheless, the court can certainly look behind the EO's neutral text, despite the Government's argument to the contrary, to determine the purpose of the Government action. Judge Watson stated that the record before the court was "unique," including "significant and unrebutted evidence of religious animus driving the promulgation" of the EO and its "related predecessor." Judge Watson then provided excerpts of several of Trump's statements, and rejected the Government's caution that courts should not look into the "veiled psyche" and "secret motives" of government decisionmakers:
The Government need not fear. The remarkable facts at issue here require no such impermissible inquiry. For instance, there is nothing “veiled” about this press release: “Donald J. Trump is calling for a total and complete shutdown of Muslims entering the United States.” SAC ¶ 38, Ex. 6 (Press Release, Donald J. Trump for President, Donald J. Trump Statement on Preventing Muslim Immigration (Dec. 7, 2015), available at https://goo.gl/D3OdJJ)). Nor is there anything “secret” about the Executive’s motive specific to the issuance of the Executive Order:
Rudolph Giuliani explained on television how the Executive
Order came to be. He said: “When [Mr. Trump] first announced
it, he said, ‘Muslim ban.’ He called me up. He said, ‘Put a
commission together. Show me the right way to do it legally.’”
SAC ¶ 59, Ex. 8.
On February 21, 2017, commenting on the then-upcoming revision to the Executive Order, the President’s Senior Adviser, Stephen Miller, stated, “Fundamentally, [despite “technical” revisions meant to address the Ninth Circuit’s concerns in Washington,] you’re still going to have the same basic policy outcome [as the first].” SAC ¶ 74.
In a footnote, Judge Watson lists "many more" examples.
Moreover, Judge Watson engaged with the plaintiffs' arguments that the EO was contextual, including pointing out that the security rationales listed in the EO included an incident involving an Iraqi national when Iraq was no longer included in the EO; the delayed timing of the EO; and the focus on nationality rather than residence. But Judge Watson noted that while such "assertions certainly call the motivations behind the Executive Order into greater question, they are not necessary to the Court's Establishment Clause determination."
Judge Watson does note that context could change and that the Executive is not forever barred, but as it stands the purpose of the EO is one that has a primary religious discriminatory purpose and will most likely not survive the Establishment Clause challenge.
Having found a likelihood of success on the merits of the Establishment Clause claim, Judge Watson easily found there was irreparable harm and that a temporary restraining order was appropriate.
Judge Watson's injunction against Sections 2 and 6 of the EO applies "across the Nation." Should an emergency appeal be sought, Judge Watson's order already denies a stay of the TRO, but does direct the parties to submit a briefing schedule for further proceedings.