Thursday, August 16, 2018
Senate Resolution 607 , introduced by Senators Brian Schatz and Chuck Schumer, and affirmed unanimously, provides:
Whereas the First Amendment to the Constitution of the United States protects the press from government control and suppression;
(1) has been recognized as integral to the democratic foundations of the United States since the beginning of the United States; and
(2) has endured and been reaffirmed repeatedly throughout the history of the United States;
Whereas Benjamin Franklin in 1722 wrote, ‘‘Whoever would overthrow the Liberty of a Nation, must begin by subduing the Freeness of Speech.’’;
Whereas Thomas Jefferson in 1786 wrote, ‘‘Our liberty de- pends on the freedom of the press, and that cannot be limited without being lost.’’;
Whereas James Madison in 1789 introduced the freedom of the press in the Bill of Rights to the Constitution of the United States;
Whereas James Madison based the freedom of the press on the Declaration of Rights of the Commonwealth of Virginia, which in 1776 declared, ‘‘The freedom of the Press is one of the greatest bulwarks of liberty, and can never be restrained but by despotic Governments.’’;
Whereas President Ronald Reagan proclaimed August 4, 1985, as Freedom of the Press Day, stating that ‘‘Freedom of the press is one of our most important freedoms and also one of our oldest.’’;
Whereas President Reagan also said, ‘‘Today, our tradition of a free press as a vital part of our democracy is as important as ever. The news media are now using modern techniques to bring our citizens information not only on a daily basis but instantaneously as important events occur. This flow of information helps make possible an informed electorate and so contributes to our national system of self-government.’’;
Whereas Justice Anthony Kennedy wrote in International Soc. for Krishna Consciousness, Inc. v. Lee, 505 U.S. 672 (1992), ‘‘The First Amendment is often inconvenient. But that is beside the point. Inconvenience does not absolve the government of its obligation to tolerate speech.’’;
Whereas the United States Supreme Court also affirmed the history and intent of the freedom of the press in New York Times Co. v. United States, 403 U.S. 713 (1971), stating, ‘‘In the First Amendment, the Founding Fathers gave the free press the protection it must have to fulfill its essential role in our democracy. The press was to serve the governed, not the governors. The Government’s power to censor the press was abolished so that the press would remain forever free to censure the Government. The press was protected so that it could bare the secrets of government and inform the people. Only a free and unrestrained press can effectively expose deception in government.’’;
Whereas tyrannical and authoritarian governments and leaders throughout history have sought to undermine, censor, suppress, and control the press to advance their undemocratic goals and actions; and
Whereas the United States, including the long-held commitment to and constitutional protection of the free press in the United States, has stood as a shining example of democracy, self-government, and freedom for the world to emulate: Now, therefore, be it
(1) the Senate—
(A) affirms that the press is not the enemy of the people;
(B) reaffirms the vital and indispensable role that the free press serves to inform the electorate, uncover the truth, act as a check on the inherent power of the government, further national discourse and debate, and otherwise advance the most basic and cherished democratic norms and freedoms of the United States; and
(C) condemns the attacks on the institution of the free press and views efforts to systematically undermine the credibility of the press as an attack on the democratic institutions of the United States; and
(2) it is the sense of the Senate that it is the sworn responsibility of all who serve the United States by taking the oath to support and defend the Constitution of the United States to uphold, cherish, and protect the entire Constitution, including the freedom of the press.
This Resolution can be seen as a rebuke to presidential statements describing the press as an "enemy of the people."
The Fake News hates me saying that they are the Enemy of the People only because they know it’s TRUE. I am providing a great service by explaining this to the American People. They purposely cause great division & distrust. They can also cause War! They are very dangerous & sick!— Donald J. Trump (@realDonaldTrump) August 5, 2018
Additionally, about 350 media outlets have also published pieces today affirming the importance of a free press and rejecting the "enemy of the people" appellation.
Thursday, August 9, 2018
In a terse written Order in Grace v. Sessions, United States District Judge for the District of Columbia, Emmet Sullivan reiterated his oral order "requiring the Defendants to return “Carmen” and her daughter to the United States FORTHWITH" (emphasis in original). Judge Sullivan's Order recounted that at the emergency hearing on August 8, "Defendants stated that they would not consent to staying the removal past 11:59 pm Thursday August 9, 2018, but specifically represented to the Court that “Carmen” and her daughter would not be removed prior to that time." The judge therefore set a hearing for 1:00pm on Thursday, during which it was learned that Carmen and her daughter were being removed from the country by plane. The Judge's Order concluded:
HEREBY ORDERED that the Defendants shall return “Carmen” and her daughter to the United States FORTHWITH; and it is
FURTHER ORDERED that in the event that the Defendants do not fully comply with this Order, Defendants Attorney General Jefferson Sessions, III; Secretary of the Department of Homeland Security Kirstjen M. Nielsen; U.S. Citizenship and Immigration Service Director Lee Francis Cissna; and Executive Office of Immigration Review Director James McHenry, preferably accompanied by their attorneys, shall be ORDERED to appear in Court to SHOW CAUSE why they should not be held in CONTEMPT OF COURT; and it is
FURTHER ORDERED that the Defendants shall file a status report on the docket in this case by no later than 5:00 pm August 10, 2018, informing the Court of the Defendants’ compliance with this Order.
[emphasis in original].
The complaint in the case challenges expanded "expedited removal" for asylum seekers whose claims are based on gang violence or domestic violence, with statutory claims for relief augmented by separation of powers arguments and a constitutional claim of violation of due process.
Thursday, August 2, 2018
In an op-ed in the Los Angeles Times Yale Law Professors David Singh Grewal, Amy Kapczynski and Issa Kohler-Hausmann argue that there is no liberal "case for Kavanaugh," the President's nominee for Supreme Court Justice.
Trump’s nominations for the high court will have grave, long-lasting effects on the nation. Let the debate over Kavanaugh’s confirmation focus on the issues, not on the pedigree or manners of a judge who, as a justice, will almost surely work to undermine decades of settled judicial precedent in a way no liberal should be willing to condone.
Moreover, they speculate that liberal voices supporting the nominee may simply be currying favor:
Perhaps liberals praise Kavanaugh in order to gain favor with him. If confirmed, he will be in a position of great power in the legal world for decades to come, able to influence whose views are cited in judicial opinions and whose clerkship candidates are hired.
Meanwhile, it was reported that 74 protesters objecting to the nominee were arrested at the Hart Senate Office Building for crowding the halls.
Wednesday, June 20, 2018
In the complaint in M.G.U. v. Kirstjen Nielsen, three adult plaintiffs challenge the parent-child separation policy implemented by Homeland Security for persons seeking asylum. Recall that in early June, a federal judge ruled in Li v. ICE that the constitutional claims in similar complaint survived a motion to dismiss. The complaint in M.G.U. comes after increased publicity and outcry regarding the practice, with President Trump issuing an Executive Order changing the policy. However, the EO does not mention family reuinification and it is as yet unclear whether that will occur for parents and children who have already been separated (or whether the children will now be treated as "unaccompanied minors.")
The complaint alleges that that the government actors have violated the plaintiffs Fifth Amendment Due Process rights in two ways. First, the complaint alleges that it is a violation of due process to inflict punishment on civil detainees. In this regard, the separation is alleged to be punishment and includes this allegation:
The employees and agents who Defendants deploy to interact with parents and children in immigration detention facilities sadistically tease and taunt parents and children with the prospect of separation, and do so using words and tones indicating that Defendants’ employees and agents enjoy the pain and suffering that the very idea of separation causes to parents and children.
Second, the complaint alleges that the separation violates the due process right of family integrity, similar to the judge's finding in Li v. ICE.
Most likely this is only the beginning of challenges to the parent-child separation practice.
Thursday, June 7, 2018
In his Order in L. v. United States Immigration and Customs Enforcement (ICE), Southern District of California United States District Judge Dana Sabraw denied the government's motion to dismiss the constitutional claim challenging ICE's separation of plaintiff parents and children at the border.
Judge Sabraw first found that the complaint was not moot because the government defendants "have not shown that Ms. L. was released from detention and reunited with her daughter for reasons other than this litigation," and thus "the voluntary cessation exception applies to this case."
In considering whether the complaint's allegations of a denial of due process under the Fifth Amendment should be dismissed, Judge Sabraw discussed the bedrock principles that the Constitution applies to non-citizens within the United States and that the Due Process Clause includes a "right to family integrity or to familial association." Judge Sabraw distinguished other cases in the immigration context finding that here the plaintiffs were detained with their children:
Here, the Court is faced with Plaintiffs who present different circumstances, but each Plaintiff has demonstrated that the right to family integrity encompasses her particular situation. According to the allegations in the Amended Complaint, Ms. L. did everything right. She and her child presented at the port of entry and requested asylum. She passed a credible fear screening interview, was taken out of expedited removal proceedings, and placed in removal proceedings before an IJ to pursue her asylum claim. Ms. C., by contrast, did not do everything right. She committed a crime by entering the United States illegally, and was prosecuted and imprisoned for her transgression: 25 days in custody for misdemeanor violation of 8 U.S.C. § 1325 (illegal entry). However, having served her sentence, Ms. C. was then returned to ICE detention to pursue her asylum claim, as she too had passed a credible fear screening. Ms. C., therefore, is on equal footing with Ms. L. for purposes of pursuing her due process claim. Ms. L.’s claim is based on the initial separation from her child, while Ms. C.’s claim is based on the continued separation from her child. Both claims focus on government conduct in separating families during removal proceedings.
Judge Sabraw applied the "shocks the conscience" test for due process and elaborated that due process protects against "governmental conduct that violates the “decencies of civilized conduct," interferes with rights “‘implicit in the concept of ordered liberty," and is so “‘brutal’ and ‘offensive’ that it [does] not comport with traditional ideas of fair play and decency"(citing cases).
Judge Sabraw recounted the allegations of trauma for both parents and children, and concluded:
These allegations call sharply into question the separations of Plaintiffs from their minor children. This is especially so because Plaintiffs allegedly came to the United States seeking shelter from persecution in their home countries, and are seeking asylum here. For Plaintiffs, the government actors responsible for the “care and custody” of migrant children have, in fact, become their persecutors. This is even more problematic given Plaintiffs’ allegations and assertions that there is a government practice, and possibly a forthcoming policy, to separate parents from their minor children in an effort to deter others from coming to the United States. This alleged practice is being implemented even when parents like Ms. L. and Ms. C. have passed credible fear interviews, and therefore, are positioned to present asylum claims meriting consideration by an IJ in their removal proceedings. These allegations sufficiently describe government conduct that arbitrarily tears at the sacred bond between parent and child, and is emblematic of the “exercise of power without any reasonable justification in the service of an otherwise legitimate governmental objective[.]” [citation omitted] Such conduct, if true, as it is assumed to be on the present motion, is brutal, offensive, and fails to comport with traditional notions of fair play and decency. At a minimum, the facts alleged are sufficient to show the government conduct at issue “shocks the conscience” and violates Plaintiffs’ constitutional right to family integrity. Accordingly, Defendants’ motion to dismiss Plaintiffs’ due process claim is denied.
Judge Sabraw did dismiss the counts alleging a violation of the Administrative Procedure Act (finding "Plaintiffs have failed to allege facts sufficient to show “final agency action” subject to review under the APA") and a violation of the Asylum Act (finding no authority for a private right of action).
But the claim for a Due Process Clause violation will proceed as the United States government seems to arguing family separation is a permanent policy.
[image: "Cloak of Conscience" by Anna Chromy, via]
Wednesday, May 23, 2018
In her Opinion in Knight First Amendment Institute v. Trump, United States District Judge for the Southern District of New York, Naomi Reice Buchwald, found that the President's Twitter account, @realdonaldtrump, is in violation of the First Amendment when it blocks other Twitter users based on their political views.
Judge Buchwald's 75 page opinion is well-structured and well-reasoned, proceeding through the multiple and complex issues posed by the novel issue. The parties' extensive Stipulation formed the basis of the summary judgment order.
Judge Buchwald first found that the named plaintiffs and organizational plaintiff had standing as to both the President and Dan Scavino, the White House Social Media Director with access to the Twitter account. But she granted summary judgment in favor of Defendant Sarah Huckabee Sanders, who did not have access to the Twitter account (and Hope Hicks, no longer at the White House, was dismissed as a Defendant).
On the First Amendment issue, Judge Buchwald concluded that the Twitter account was governmental in nature as was the act of blocking other Twitter users. The judge rejected the argument that blocking was not state action because the blocking functionality was afforded every user: "but the power to exclude is also one afforded generally to every property owner. When a government acts to 'legally preserve the property under its control for the use to which it is dedicated,' it behaves 'like the private owner of property.'" She also rejected the argument that because the Twitter account was begun in 2009 it was not governmental now:
Here, the President and Scavino’s present use of the @realDonaldTrump account weighs far more heavily in the analysis than the origin of the account as the creation of private citizen Donald Trump. That latter fact cannot be given the dispositive weight that defendants would ascribe to it. Rather, because the President and Scavino use the @realDonaldTrump account for governmental functions, the control they exercise over it is accordingly governmental in nature.
Indeed, quoting from the parties' Stipulation, the Judge recounted:
With the assistance of Mr. Scavino in certain instances, President Trump uses @realDonaldTrump, often multiple times a day, to announce, describe, and defend his policies; to promote his Administration’s legislative agenda; to announce official decisions; to engage with foreign political leaders; to publicize state visits; to challenge media organizations whose coverage of his Administration he believes to be unfair; and for other statements, including on occasion statements unrelated to official government business. President Trump sometimes uses the account to announce matters related to official government business before those matters are announced to the public through other official channels.” Stip. ¶ 38. “For example, the President used @realDonaldTrump to announce on June 7, 2017, for the first time, that he intended to nominate Christopher Wray for the position of FBI director.” Stip. ¶ 38.
But the real issue for the forum analysis was not the President's tweets, which the Judge held to be "government speech" not subject to First Amendment constraints as the United States Supreme Court recently explained in Walker v. Texas Division, Sons of Confederate Veterans.
Instead, the "interactive space associated with each of the President’s tweets is not government speech and is properly analyzed under the Supreme Court’s forum precedents," and, Judge Buchwald concluded, is a "designated public forum."
As such, the designated public forum is subject to the First Amendment requirement that any governmental restrictions must be "narrowly drawn to achieve a compelling state interest.”
Here, the individual plaintiffs were indisputably blocked as a result of viewpoint discrimination. The record establishes that “[s]hortly after the Individual Plaintiffs posted the tweets . . . in which they criticized the President or his policies, the President blocked each of the Individual Plaintiffs,” Stip. ¶ 53, and defendants do “not contest Plaintiffs’ allegation that the Individual Plaintiffs were blocked from the President’s Twitter account because the Individual Plaintiffs posted tweets that criticized the President or his policies.”
This viewpoint discrimination is impermissible, Judge Buchwald concluded, and not justified by any personal First Amendment right advanced by the President. Judge Buchwald distinguished "muting" and "blocking" on Twitter - - - which the President had argued were indistinguishable - - - and concluded:
The audience for a reply extends more broadly than the sender of the tweet being replied to, and blocking restricts the ability of a blocked user to speak to that audience. While the right to speak and the right to be heard may be functionally identical if the speech is directed at only one listener, they are not when there is more than one.
Finally, Judge Buchwald rejected the argument that the court categorically lacked authority to enjoin the President: "No government official, after all, possesses the discretion to act unconstitutionally." Nevertheless, she decided that a declaratory judgment should suffice: "we must assume that the President and Scavino will remedy the blocking we have held to be unconstitutional."
Wednesday, May 2, 2018
In her complaint, Stephanie Clifford, a/k/a Stormy Daniels has sued Donald Trump in his individual capacity for defamation, based on his tweet responding to her allegations that she was threatened.
A sketch years later about a nonexistent man. A total con job, playing the Fake News Media for Fools (but they know it)! https://t.co/9Is7mHBFda— Donald J. Trump (@realDonaldTrump) April 18, 2018
The tweet was actually a "quote tweet" retweeting this reply to an earlier Trump tweet:
The one-count complaint avers that Trump is not only attacking the truthfulness of Clifford, but also accusing her of a crime: fabricating a crime and an assailant, both of which are crimes under New York law. The complaint alleges that Trump "made his statement either knowing it was false, had serious doubts about the truth of his statement, or made the statement with reckless disregard for its truth or falsity." The complaint avers that not only has Clifford's reputation been damaged, but that she is receiving threats since Trump's statement and has hired bodyguards to protect her.
Recall that in a separate lawsuit, Clifford has sued Trump's personal attorney Michael Cohen for defamation, raising the somewhat usual issues surrounding the First Amendment doctrine in defamation given that Stormy Daniels is a public figure and the matter is one of public concern.
However, the Clifford lawsuit against Trump while he is President also raises the specter of executive immunity. Recall that in Zervos v. Trump, a similar lawsuit for defamation against Trump filed in New York state court by Summer Zervos, the judge held that the lawsuit could proceed; the judge found that the rule in the United States Supreme Court's unanimous 1997 decision of Clinton v. Jones holding that then-President Clinton subject to suit in federal court extended to state court.
One difference in the Clifford suit is that Trump made the allegedly defamatory statement while President; the statement in Zervos was made as a candidate (and the acts in Clinton v. Jones occurred before Bill Clinton became President).
Wednesday, April 25, 2018
In a 60 page Memorandum Opinion in NAACP v. Trump, United States District Judge for the District of Columbia, Judge John Bates "vacated" the Department of Homeland Security's decision to rescind the DACA program, but stayed its order of vacatur for 90 days "to afford DHS an opportunity to better explain its view that DACA is unlawful."
Recall that in February Judge Nicholas Garaufis of the Eastern District of New York granted a preliminary injunction against the rescission of DACA and also recall that Judge Alsup of the Northern District of California issued a preliminary injunction in January which the government is appealing.
Judge Bates' decision rests on an application of the Administrative Procedure Act (APA), finding that the decision by DHS to rescind DACA, the Deferred Action for Childhood Arrivals program, covering 800,000 people in the United States who are not citizens but who have been residents since childhood., was "arbitrary and capricious" because the Department failed adequately to explain its conclusion that the program was unlawful. Judge Bates stated that "neither the meager legal reasoning nor the assessment of litigation risk provided by DHS to support its rescission decision is sufficient to sustain termination of the DACA program."
Judge Bates held that the "litigation risk" argument, which would would render the decision to rescind presumptively unreviewable, was not independent of the reality that the "rescission was a general enforcement policy predicated on DHS’s legal determination that the program was invalid when it was adopted." This legal determination is what raises the constitutional issue: DHS determined that DACA lacked constitutional authority. Although, as Judge Bates noted, "it seems that no court has yet passed judgment on DACA’s constitutionality."
Thus, Judge Bates gave DHS more time to make it arguments that DACA lacked constitutional (and statutory) authority to support its rescission decision, and also deferred ruling on the plaintiffs' constitutional challenges to the rescission as violating due process and equal protection.
Saturday, April 14, 2018
In her opinion and Order in Karnoski v. Trump, United States District Judge Marsha Pechman of the Western District of Washington has reaffirmed her previous preliminary injunction (December 2017) on the basis of the plaintiffs' likelihood to succeed on the merits of their Equal Protection, Due Process, and First Amendment claims in their challenge to the President's ban on transgender troops in the military, and further decided that the military ban is subject to strict scrutiny. (Recall that previous to Judge Pechman's preliminary injunction, United States District Judge for the District of Columbia Colleen Kollar-Kotelly in Doe v. Trump partially enjoined the president's actions and United States District Judge Marvin Garvis of the District of Maryland in Stone v. Trump issued a preliminary injunction against the United States military's ban on transgender troops and resources for "sex-reassignment" medical procedures).
The government's motion for summary judgment and to dissolve the preliminary injunction relied in large part on the President's new policy promulgated in March 2018. As Judge Pechman phrased it, the 2018 Presidential Memorandum
purports to "revoke" the 2017 Memorandum and “any other directive [he] may have made with respect to military service by transgender individuals,” and directs the Secretaries of Defense and Homeland Security to “exercise their authority to implement any appropriate policies concerning military service by transgender individuals.”
Rejecting the government defendants' argument that the controversy was now moot, Judge Pechman concluded that the 2018 Memorandum and Implementation Plan "do not substantively rescind or revoke the Ban, but instead threaten the very same violations that caused it and other courts to enjoin the Ban in the first place." The judge acknowledged that there were a few differences, but was not persuaded by the government defendants' argument that the 2018 policy did not now mandate a “categorical” prohibition on service by openly transgender people.
Similarly, Judge Pechman found that the individual plaintiffs, the organizational plaintiffs, and the plaintiff State of Washington continued to have standing.
Most crucial in Judge Pechman's order is her decision that transgender people constitute a suspect class and thus the ban will be subject to strict scrutiny. (Recall that in the previous preliminary injunction, Judge Pechman ruled that transgender people were at a minimum a quasi-suspect class). In this opinion, she considers four factors:
- whether the class has been “[a]s a historical matter . . . subjected to discrimination,”
- whether the class has a defining characteristic that “frequently bears [a] relation to ability to perform or contribute to society,
- whether the class exhibits “obvious, immutable, or distinguishing characteristics that define [it] as a discrete group,"
- whether the class is “a minority or politically powerless.”
After a succinct analysis, she concludes that suspect class status is warranted and because the "Ban specifically targets one of the most vulnerable groups in our society," it "must satisfy strict scrutiny if it is to survive."
However, Judge Pechman did not decide on the level of deference the government defendants should be accorded. Instead, she concluded that
On the present record, the Court cannot determine whether the DoD’s deliberative process—including the timing and thoroughness of its study and the soundness of the medical and other evidence it relied upon—is of the type to which Courts typically should defer.
However, she did agree with the government defendants that President Trump was not subject to injunctive relief, but did remain as a defendant for the purpose of declaratory relief.
Thus, Judge Pechman directed the parties to "proceed with discovery and prepare for trial on the issues of whether, and to what extent, deference is owed to the Ban and whether the Ban violates equal protection, substantive due process, and the First Amendment."
[image, Revolutionary War era soldier, NYPL, via]
April 14, 2018 in Courts and Judging, Current Affairs, Due Process (Substantive), Equal Protection, Executive Authority, Fifth Amendment, First Amendment, Gender, Mootness, Opinion Analysis, Sexuality, Standing | Permalink | Comments (0)
Wednesday, April 4, 2018
The United States Commerce Department's announcement that the 2020 Decennial Census Questionnaire will include a citizenship question, which the census has not included since 1950, continues to provoke litigation. Recall that soon after the late March announcement, California v. Ross challenged the constitutionality of the change as violating the Constitution's requirement of “actual Enumeration” of all people in each state every ten years for the sole purpose of apportioning representatives among the states. U.S. Const. art. I, § 2, cl. 3, and amend. XIV, § 2.
An additional complaint filed in the Southern District of New York, New York v. United States Department of Commerce, raises the same constitutional objection on behalf of seventeen state plaintiffs, the District of Columbia, as well as six cities and the United States Conference of Mayors. The first count of the complaint is based on the "actual enumeration" requirement and avers that adding a citizenship question will "deter participation." The allegations in the complaint regarding the link between a citizenship demand and lower participation interestingly rely on the Census Bureau's own arguments and findings. The complaint alleges that consequences of lower participation is "an undercount" that will not reflect the accurate population of the plaintiffs, effecting their representation in the House of Representatives and the Electors. Two additional counts are based on the Administration Procedure Act, with the second count regarding the government's decision as contrary to the constitution and law including arguments regarding the "actual enumeration" requirement.
Additionally, the NAACP has filed a complaint in the District of Maryland, NAACP v. Bureau of the Census, with one count based on the "actual enumeration" requirement. The NAACP complaint stresses the risks of an undercount of racial and ethnic minorities, and opens thusly:
Article I, Section 2 of the United States Constitution imposes one of the few affirmative obligations on the federal government: to conduct an “actual Enumeration” of all residents every ten years. Despite this duty, the United States has undercounted people of color since the nation’s founding, starting with the decision to treat African American slaves as only three-fifths of a person. The Three-Fifths Clause appeared in the same constitutional provision that mandates a decennial census.
The Government's 53 page Memorandum (with an additional 230 pages of exhibits), Response in Opposition to Motion to Dismiss, in United States v. Manafort provides another window into the prosecution of Paul Manafort. In his motion to dismiss, Manafort challenges the validity of the Acting Attorney General’s order appointing the Special Counsel and defining the Special Counsel’s jurisdiction (Office of the Deputy Att’y Gen., Order No. 3915-2017, Appointment of Special Counsel to Investigate Russian Interference with the 2016 Presidential Election and Related Matters, May 17, 2017), available here.
According to the Government, any constitutional claims underlying Manafort's arguments regarding the current Special Counsel Appointment Order result from a "fundamental misunderstanding of the way in which this regime differs from the former Independent Counsel Act." In Morrison v. Olson, 487 U.S. 654 (1988), while the Court sustained the constitutionality of the Independent Counsel Act in which independent counsel was appointed by the judicial branch, the Court held that the power of the judicial branch to determine that independent counsel's own powers (and jurisdiction) was valid only to the extent of the appointment power. Thus, as the Government's memo phrases it, to "ensure that the court’s jurisdiction-defining power remained “truly ‘incidental’” to its constitutional justification," the Court in Morrison held that “the jurisdiction that the court decides upon must be demonstrably related to the factual circumstances that gave rise to the Attorney General’s investigation and request for the appointment of the independent counsel in the particular case.”
But the Independent Counsel Act is expired. And the Special Counsel was not appointed by a court, but by the Justice Department. Thus, according to the Government's Memorandum, "Unlike the former statutory scheme that authorized court-appointed independent counsels, the definition of the Special Counsel’s authority remains within the Executive Branch and is subject to ongoing dialogue based on sensitive prosecutorial considerations" In other words, there are no constitutional considerations - - - and certainly no separations of powers issues - - - in "the wholly Executive-Branch regime created by the Special Counsel regulations" under which Special Counsel was appointed and directed.
For LawProfs looking for a relatively succinct discussion of the Special Counsel, this Government memo is a good example, especially given its clear and crisp writing style.
[image: Caricature of Paul Manafort by Donkey Hotey via]
Monday, March 26, 2018
In an amended complaint Stephanie Clifford, better known as Stormy Daniels, has added a count of defamation against President Trump's attorney, Michael Cohen, for defamation.
Recall that Ms. Daniels filed a complaint in state court against Trump and a LLC, Essential Consultants, which mentioned Michael Cohen, seeking a declaratory judgment regarding "hush money" and an agreement not to divulge certain facts. That lawsuit has been removed to federal court. But the day after Ms. Daniels' widely watched interview on the news show "60 Minutes" aired, Daniels' attorney has filed an amended complaint adding Cohen as a defendant and alleging defamation:
On or about February 13, 2018, Mr. Cohen issued a public statement. The entirety of the statement is attached hereto as Exhibit 3. In it, he states in part: “Just because something isn’t true doesn’t mean that it can’t cause you harm or damage. I will always protect Mr. Trump.” (emphasis added). Mr. Cohen’s statement was made in writing and released by Mr. Cohen to the media with the intent that it be widely disseminated and repeated throughout California and across the country (and the world) on television, on the radio, in newspapers, and on the Internet.
It was reasonably understood by those who read or heard the statement that Mr. Cohen’s defamatory statement was about Ms. Clifford.
Both on its face, and because of the facts and circumstances known to persons who read or heard the statement, it was reasonably understood Mr. Cohen meant to convey that Ms. Clifford is a liar, someone who should not be trusted, and that her claims about her relationship with Mr. Trump is “something [that] isn’t true.” Mr. Cohen’s statement exposed Mr. Clifford to hatred, contempt, ridicule, and shame, and discouraged others from associating or dealing with her.
Mr. Cohen’s defamatory statement was false.
Mr. Cohen made the statement knowing it was false or had serious doubts about the truth of the statements.
As a result, Plaintiff Ms. Clifford has suffered damages in an amount to be proven at trial according to proof, including but not limited to, harm to her reputation, emotional harm, exposure to contempt, ridicule, and shame, and physical threats of violence to her person and life.
Unlike any claims against President Trump, there is no question of executive immunity, but the First Amendment contours of defamation will undoubtedly be relevant. Given that Stormy Daniels is clearly a public figure, much more so than Summer Zervos who is suing President Trump for defamation, Daniels will need to satisfy the actual malice standard. (Recall that a state judge has held that Zervos's lawsuit against Trump is not barred by executive immunity.)
[Image: Stormy Daniels via]
Friday, February 23, 2018
In its opinion in New York State Rifle & Pistol Ass'n v. City of New York, a unanimous panel of the Second Circuit, affirming the district judge, rejected a constitutional challenge to a New York City regulation regarding "premises license" for a handgun. Under 38 RCNY § 5-23, a person having a premises license “may transport her/his handgun(s) directly to and from an authorized small arms range/shooting club, unloaded, in a locked container, the ammunition to be carried separately.” The definition of "authorized" range/shooting club, however, includes a limit to facilities located in New York City and is the essence of the plaintiffs' challenge. The New York State Rifle & Pistol Ass'n, as well as three individual plaintiffs, argued that this limitation is unconstitutional pursuant to the Second Amendment, the dormant commerce clause, the right to travel, and the First Amendment. Their specific arguments centered on the two instances: that one plaintiff was prohibited from taking his handgun to his second home in Hancock, New York; and that all plaintiffs wanted to take their handguns to firing ranges and competitions outside of New York City.
On the Second Amendment challenge, the opinion for the panel by Judge Gerald Lynch tracked the analytic structure articulated by the Second Circuit in New York State Rifle & Pistol Ass'n v. Cuomo, decided in 2015. Assuming that the Second Amendment applied, the court concluded that intermediate scrutiny was the appropriate standard based on its analysis of two factors: "(1) ‘how close the law comes to the core of the Second Amendment right’ and (2) ‘the severity of the law’s burden on the right.' " The court found that the prohibition of a plaintiff from taking the handgun to his second home was not a substantial burden: he could have a handgun at his second home if he applied to that county and noted that the plaintiff did not even estimate the money or time it would cost to obtain a second premises license and handgun. Likewise, the court found that limiting their training opportunities to New York City - - - given that there are at least 7 training facilities in New York and one in each borough - - - was not a substantial burden. Moreover, "nothing in the Rule precludes the Plaintiffs from utilizing gun ranges or attending competitions outside New York City, since guns can be rented or borrowed at most such venues for practice purposes."
In applying intermediate scrutiny, the court found that public safety was an important interest served by the regulation. The court referred to a detailed affidavit by the Commander of the License Division who
explained that premises license holders “are just as susceptible as anyone else to stressful situations,” including driving situations that can lead to road rage, “crowd situations, demonstrations, family disputes,” and other situations “where it would be better to not have the presence of a firearm.” Accordingly, he stated, the City has a legitimate need to control the presence of firearms in public, especially those held by individuals who have only a premises license, and not a carry license.
Additionally, the city had an interest in enforcing the premises license - - - which again is distinct from a carry license - - - and under a prior rule allowing transport to ranges outside the city the Commander's affidavit concluded this had made it “too easy for them to possess a licensed firearm while traveling in public, and then if discovered create an explanation about traveling for target practice or shooting competition.”
After finding the regulations survived the Second Amendment, the court's treatment of the dormant commerce clause, right to travel, and First Amendment issues was more succinct. For both the dormant commerce clause and right to travel arguments, one of the most obvious problems in the plaintiffs' arguments was their failure to convincingly allege issues regarding crossing state lines. Under the commerce clause analysis, there was no showing that the city or state was engaging in protectionist measures and, as in the Second Amendment analysis, the plaintiffs were "free to patronize firing ranges outside of New York City, and outside of New York State; they simply cannot do so with their premises-licensed firearm." Similarly, the plaintiffs could travel, they simply could not bring their handgun licensed for a specific premises with them.
On the First Amendment, the court rejected the argument that being "forced" to join a gun club in New York City or not being allowed to join a gun club outside of the city qualified as expressive association. But even if it did, the rule does not mandate or forbid joining a specific club, again, the New York City rule "only their ability to carry the handgun that is licensed for a specific premises outside of those premises."
Thus, the Second Circuit rejected constitutional challenges that essentially sought to broaden a premises-only license into a carry-license for handguns.
Thursday, February 1, 2018
The President's Proclamation of February as National African American History Month for 2018 provides that:
This annual observance is an opportunity to remember the challenges of our past, but also to honor countless African-American heroes who inspire us to shape our country’s future. This year’s theme, “African Americans in Times of War,” calls our attention to the heroic contributions of African Americans during our Nation’s military conflicts, from the Revolutionary War to present-day operations.
This focus on war-time includes a reference to President Harry S. Truman in 1948 who "ordered desegregation of the military providing 'equality of treatment and opportunity for all persons in the Armed Forces without regard to race, color, religion or national origin.'" It mentions the "obligation to the self-evident truth of equality written into the Declaration of Independence," but interestingly does not mention the Constitution. It specifically mentions three members of the military.
It ends thusly:
These and countless other African Americans triumphed over ignorance, oppression, and injustice to make indelible contributions, not only to our military history, but even more importantly to our American history. They are an integral part of our Nation’s story. We are indebted to the individual and collective perseverance and patriotism of these outstanding men and women, as we are to all African Americans who have served, and continue to serve in the Armed Forces of this great Nation.
Monday, January 29, 2018
In its opinion in C.J.L.G. v. Sessions, a panel of the Ninth Circuit held that neither the Due Process Clause of the Fifth Amendment nor the Immigration & Nationality Act includes a right to court-appointed counsel for minors.
C.J., a thirteen year old, fled Honduras with his mother after being threatened at gunpoint to join a gang, and arrived in the United States without documentation. Neither spoke English. In the removal proceedings, his mother was informed she could obtain an attorney, but she stated that she could not afford one. She filled out forms to request relief. Eventually an immigration judge held a brief hearing and issued a written denial of the application for asylum. withholding of removal, and relief under the Convention Against Torture, finding the minor had not demonstrated a well-founded fear of persecution or membership in a protected group, and that there was fear of torture or acquiescence of the government.
In a very brief concurring opinion, Judge John Owens notes that C.J., who was with his mother, was not an unaccompanied minor: "The opinion does not hold, or even discuss, whether the Due Process Clause mandates counsel for unaccompanied minors. That is a different question that could lead to a different answer."
Nevertheless, in the opinion by Judge Consuelo M. Callahan for what is essentially a unanimous panel, C.J.'s mother is not an advantage for C.J. Indeed, as the court's opinion states,
In C.J.’s case, the onus was almost entirely on the IJ [immigration judge] to develop the record. C.J.’s mother was ill-equipped to understand the proceedings or to comprehend C.J.’s burden in establishing eligibility for relief, and the government asked no questions. Thus, it was up to the IJ to discover any facts that might support C.J.’s asylum claim.
Judge Callahan notes that "alien minors" have the same Due Process rights as any other persons, and that there is a right to counsel under the federal statute and regulations, it is a different question whether C.J. is "entitled to court- appointed counsel at government expense—a privilege that Congress has not conferred." Additionally, to prevail C.J. must demonstrate that the denial of an attorney "prejudiced the outcome of his removal proceeding."
The court distinguished previous Ninth Circuit precedent regarding counsel who was inadequate, concluding that this did not include a right to court-appointed counsel. The court also refused to extend In re Gault (1967), holding that minors are entitled to court appointed counsel in some juvenile proceedings:
Nothing in Gaultor its progeny compels the outcome that minors in civil immigration proceedings who do not face the threat of incarceration are categorically entitled to court-appointed counsel. Indeed, “the [Supreme] Court has [never] determined that due process principles of fundamental fairness categorically require counsel in any context outside criminal proceedings.” Turner[ v. Rogers], 564 U.S. at 454 (Thomas, J., dissenting). We therefore hold that it is not established law that alien minors are categorically entitled to government- funded, court-appointed counsel.
The court then engaged in a Matthews v. Eldridge balancing test for procedural due process, to “determine what process is due by balancing (1) the private interest at stake, (2) ‘the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional safeguards,’ and (3) the government’s interest, including the burdens of any additional process.” The court found some appeal with the government's argument that there was only a slight private interest because C.J. had only been in the United States a few days, but concluded that C.J. did meet the first factor because the gang "attempted to recruit him under duress—at gunpoint no less—before he fled provides reason to believe that C.J. would encounter similar threats and perhaps worse upon his return."
As to the second Matthews factor, the court acknowledged that an attorney usually makes a difference in removal proceedings for minors, but considered whether here the Immigration Judge provided a "full and fair hearing" but considering the elements of the claim and the evidence. Although the court stated that "To be sure, C.J.’s removal proceeding was not a paragon of procedural decorum" and the "IJ should have more clearly explained the standard for asylum relief," the court nevertheless concluded that "C.J. falls well short of accomplishing this Herculean task [of satisfying this factor] because he fails to show that the process Congress prescribed is categorically inadequate to vindicate an alien minor’s right to due process. The second Mathews factor favors the government."
Wednesday, January 24, 2018
In a Complaint filed in the United States District of Maryland in National Association for the Advancement of Colored People v. United States Department of Homeland Security, the NAACP challenges the Trump Administration's decision to rescind Temporary Protective Status (“TPS”) for Haitian immigrants, as a violation of equal protection. The complaint argues that the rescission springs from an intent to discriminate on the basis of race and/or ethnicity.
Essentially COUNT I of the Complaint, based on the equal protection component of the Fifth Amendment, contents that there is sufficient governmental intent so that the classification should be deemed as a racial one. As ¶88 provides:
The inference of race and/or ethnicity discrimination is supported by the Administration’s departure from the normal decision-making process; the fact that the decision bears more heavily on one race than another; the sequence of events leading to the decision; the contemporaneous statements of decisionmakers; and the historical background of the decision. The Supreme Court has recognized these factors as probative of intentional discrimination. See Vill. of Arlington Heights v. Metro. Hous. Development Corp., 429 U.S. 252 (1977).
Subsequent paragraphs of the complaint track these Arlington Heights factors with more specificity. Earlier, the complaint in ¶ 79 mentions the President's notorious comments:
On January 11, 2018, during a White House meeting with several U.S. Senators, the President is alleged to have disparaged a draft immigration plan that protected people from Haiti, El Salvador, and some African countries, asking, “Why are we having all these people from shithole countries come here?”President Trump is alleged to have further disparaged Haitians in particular, asking “Why do we need more Haitians?” and ordered the bill’s drafters to “take them out.”In this meeting, the President is further alleged to have expressed his preference for more immigrants from places like Norway, where the population is over 90 percent white. Haiti’s population, by contrast, is over 95 percent Black.
[footnotes omitted]. If there is a racial classification, the court would apply strict scrutiny requiring a compelling governmental interest that is served by narrowly tailored means.
Interestingly, the equal protection count also includes this simple statement and citation: "The Due Process Clause of the Fifth Amendment also prohibits irrational government action. U.S. Dep’t of Agric. v. Moreno, 413 U.S. 528 (1973)." Recall that the Court in Moreno found that a Congressional statute defining households for foodstamp eligibility as only including relatives - - - in order to exclude "hippie communes" - - - was irrational because a bare "desire to harm a politically unpopular group" could not constitute a legitimate government interest. This "animus" doctrine, also evident in cases like Romer v. Evans and United States v. Windsor, is another way that the challengers could prevail on their equal protection claim. Thus, even if the court does not find there is a racial (or ethnic) classification meriting strict scrutiny, the court could decide that there is sufficient animus here to negate the legitimate interest required under rational basis, the most lenient standard.
It will be interesting to see how the Department of Justice responds. Meanwhile, ConLawProfs teaching equal protection this semester could use this as the basis for a great problem.
Monday, January 15, 2018
Oppenheimer mentions the plans of the President and Attorney General Sessions to challenge affirmative action policies in higher education as a form of discrimination against white people and predicts that they will eventually use Dr. King’s “I Have A Dream” speech as evidence that Dr. King would be supporting their position if he were still alive. The President's Proclamation for MLK Day does not mention affirmative action (or civil rights), but does allude to King's most famous speech by including the arguably "color-blind" rejecting judgment based on "color of their skin" in favor of "content of their character." (The Proclamation states "Dr. King advocated for the world we still demand — where the sacred rights of all Americans are protected, rural and urban communities are prosperous from coast to coast, and our limits and our opportunities are defined not by the color of our skin, but by the content of our character.")
Yet as Professor Oppenheimer argues it is simplistic - - - and incorrect - - - to conclude that Martin Luther King's political theorizing can be reduced to a convenient "color-blind" position. Oppenheimer writes:
While I have found no instance of Rev. Dr. Martin Luther King, Jr. ever using the term “affirmative action,” forty-eight years after his assassination his name is often invoked in the affirmative action debate by opponents of race-based affirmative action, who cite Dr. King’s “I have a dream” speech as evidence that he supported “color-blind” policies, and thus presumably would have opposed race-conscious affirmative action. But when we examine the historical record it is clear that while Dr. King dreamed of a time when racism – and thus race – would be irrelevant, he was a supporter of both of these forms of affirmative action. On the one hand, he spent much of the last six years of his life actively promoting what we would describe today as race-conscious affirmative action, including the use of racial quotas in employment. Specifically, from 1962-68 Dr. King orchestrated and implemented “Operation Breadbasket,” a civil rights boycott campaign that demanded employment quotas for Black American workers based on their numbers in a workforce, neighborhood or city. Yet on the other hand, with regard to class-based affirmative action, Dr. King supported a massive war on poverty. In advocating for special benefits for poor Americans he sometimes used color-blind language and pointed out that it would benefit poor whites as well as poor Blacks, while at other times he justified it as an example of the kind of reparations to which Black Americans were entitled under the equitable remedy of restitution for unpaid wages.
In his discussion of the constitutional law doctrine and theory surrounding affirmative action, Oppenheimer includes the United States Supreme Court's reaction to organized efforts to mandate affirmative action in Hughes v. Superior Court for Contra Costa County (1948) in which the Court stated:
that the picketing here involved, and upon which the judgment of contempt is based, was for the attainment of an unlawful objective, viz.: not to induce Lucky [grocery store] not to discriminate against, but, rather, expressly to compel Lucky to discriminate arbitrarily in favor of, one race as against all others in the hiring of a portion of its clerks; and that therefore the injunction was properly issued and the judgment of contempt should stand. With this position, upon the record here, we must agree.
Oppenheimer writes that while the Supreme Court was willing to affirm the legitimacy of protesting discrimination, but unwilling to give any approval to demands for proportional hiring, the demands for "proportional hiring nonetheless persisted, and would become a critical part of Dr. King’s campaign for racial justice in the last six years of his life."
It seems pretty clear that MLK supported what is now known as "affirmative action."
Thursday, January 11, 2018
Recall the lawsuit by Summer Zervos against Donald Trump for defamation. It's filed in New York state court and Trump has argued that Clinton v. Jones, the 1997 case in which the United States Supreme Court held that President Clinton was not immune from being sued, should not apply to state court proceedings.
In an amicus brief filed in Zervos v. Trump, and available on ssrn, three law professors who submitted an amicus brief in Clinton v. Jones in support of a plaintiffs' right to sue the sitting President in federal court,now argue that the rule should apply to state court as well. The professors - - - Stephen Burbank, Richard Parker, and Lucas Powe, Jr. - - - argue that a President should be amenable to suit in state as well as federal court, with appropriate docket-management accommodations made in light of the demands on a President's time and attention.
At issue is footnote 13 of Clinton v. Jones which might be read to distinguish state court proceedings from the federal one involved in Clinton:
Because the Supremacy Clause makes federal law “the supreme Law of the Land,” Art. VI, cl. 2, any direct control by a state court over the President, who has principal responsibility to ensure that those laws are “faithfully executed,” Art. II, §3, may implicate concerns that are quite different from the interbranch separation of powers questions addressed here. Cf ., e.g. , Hancock v. Train , 426 U.S. 167, 178 -179 (1976); Mayo v. United States , 319 U.S. 441, 445 (1943). See L. Tribe, American Constitutional Law 513 (2d ed. 1988) (“[A]bsent explicit congressional consent no state may command federal officials . . . to take action in derogation of their . . . federal responsibilities”).
The amicus brief contends that the footnote is best read as limited to the problem of direct control of presidential activities by a state court. That, they argue, is not the Zervos suit, since Zervos' lawsuit has nothing to do with the president's duties. They conclude that the best reading of the Constitution, the requirements of federalism and the rule of law, and the Supreme Court's decision in Clinton v. Jones direct that state courts be permitted to entertain suits against sitting Presidents for conduct arising from their pre-Presidential conduct, just as federal courts can.
Judge Jennifer Schecter has yet to issue a ruling.
Thursday, January 4, 2018
Today brings the news that the President is contemplating litigation to halt the publication of Fire and Fury:Inside the Trump White House by Michael Wolff. This followed a reported cease and desist letter to former White House "chief strategist" and insider Steve Bannon for talking with Wolff in alleged violation of a nondisclosure agreement.
The letter to the book's publisher is reportedly based on a claim of defamation:
“Actual malice (reckless disregard for the truth) can be proven by the fact that the Book admits in the Introduction that it contains untrue statements. Moreover, the Book appears to cite to no sources for many of its most damaging statements about Mr. Trump. Also, many of your so-called ‘sources’ have stated publicly that they never spoke to Mr. Wolff and/or never made the statements that are being attributed to them. Other alleged ‘sources’ of statements about Mr. Trump are believed to have no personal knowledge of the facts upon which they are making statements or are known to be unreliable and/or strongly biased against Mr. Trump.”
But behind the obvious relevance of New York Times v. Sullivan (1964) which set the doctrine of actual malice for defamation under the First Amendment, lurks another case involving the New York Times: New York Times v. United States (1971), often called the "Pentagon Papers Case."
It is the Pentagon Papers Case that solidified the disfavor for prior restraint.
The brief per curiam opinion in the 6-3 decision stated that there is "a heavy presumption against its constitutional validity," and the government "thus carries a heavy burden of showing justification for the imposition of such a restraint." While it is certainly the United States government that is a party to the Pentagon Papers Case, most commentators and scholars believe that it was President Nixon who was at the forefront of the attempt to stop publication of the papers. Arguably, the Pentagon Papers involved "state secrets," but President Trump, like Nixon, has been criticized as conflating his own interests with that of the government.
It's thus a good time to reconsider the continuing relevance of the case and its litigation. One perspective is available in the movie The Post involving the Pentagon Papers and starring Meryl Streep as Katharine Graham, the publisher of The Washington Post.
Another good perspective is a recent conversation between James C. Goodale, author of Fighting for the Press: the Inside Story of the Pentagon Papers and Other Battles and Jeremy Scahill, one of the founders of The Intercept and author of Dirty Wars: The World Is a Battlefield, which I moderated at CUNY School of Law.
Here's the video:
January 4, 2018 in Books, Campaign Finance, Conferences, Current Affairs, Executive Authority, First Amendment, News, Separation of Powers, State Secrets, Supreme Court (US) | Permalink | Comments (0)
Wednesday, January 3, 2018
With the termination by Executive Order of the Presidential Advisory Commission on Election Integrity, also known as the "voter fraud commission," it's a good time to (re)read Atiba Ellis's article from 2014, The Meme of Voter Fraud.
Professor Ellis argues that "meme theory" offers a useful methodology to analyze the origins, evolution, and persistence of voter fraud rhetoric. For Ellis, a "meme" is not only a cute internet cat photo with changing words, but an "idea that spreads from person to person within a culture and replicates along with other ideas to form an ideology or worldview." The meme of "voter fraud" on his account is the latest iteration of the ideology that some people are deemed “unworthy” of the vote.
Ellis addressed the relevancy of the meme of voter fraud as it was being deployed by Trump shortly after the 2016 election (and which led to the creation of the commission). Ellis wrote that the problem with Trump's use of the voter fraud meme is that
It seeks to rig our thinking about democracy. Because a meme persuades through appeal and not logic, makes facts completely irrelevant when the story is too good. This doesn’t matter much with cat videos, but Mr. Trump’s rigged election meme are dangerous because they detach us from facts as our basis for making real-world decisions.
To believe that millions of certain voters are illegitimate simply because someone says so is to trade in an ideology of exclusion. America did this for the majority of its history with the effect of excluding women, African Americans, and naturalized immigrants in favor of property-holding white men.
While the termination of the presidential commission might be seen as a rejection of the voter fraud meme, the official Statement of the Press Secretary is less than a disavowal:
Despite substantial evidence of voter fraud, many states have refused to provide the Presidential Advisory Commission on Election Integrity with basic information relevant to its inquiry. Rather than engage in endless legal battles at taxpayer expense, today President Donald J. Trump signed an executive order to dissolve the Commission, and he has asked the Department of Homeland Security to review its initial findings and determine next courses of action.
This claim of "substantial evidence" seems to indicate that meme persists.
UPDATE: The President's tweets, which arguably have the status of official statements, confirm that the meme of voter fraud has not been abandoned:
Many mostly Democrat States refused to hand over data from the 2016 Election to the Commission On Voter Fraud. They fought hard that the Commission not see their records or methods because they know that many people are voting illegally. System is rigged, must go to Voter I.D.— Donald J. Trump (@realDonaldTrump) January 4, 2018
As Americans, you need identification, sometimes in a very strong and accurate form, for almost everything you do.....except when it comes to the most important thing, VOTING for the people that run your country. Push hard for Voter Identification!— Donald J. Trump (@realDonaldTrump) January 4, 2018