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
Monday, January 1, 2018
Recall that Chief Justice Roberts' 2017 year-end report on the judiciary included an announcement of a working group to address the "depth of sexual harassment" in the judicial workplace. One might hope that the working group also addresses the seeming backtracking of the commitment to diversify the federal bench with regards to gender, as well as other disproportionately underrepresented people. Perhaps this new working group will re-examine the plethora of gender bias in the courts reports - - - and responses to them - - - from previous decades. (For a good discussion and survey see, Rena M. Atchison, A Comparison of Gender Bias Studies: Eighth Circuit Court of Appeals and South Dakota Findings in the Context of Nationwide Studies, 43 S.D. L. Rev. 616 (1998)).
While not focusing on judicial diversity or sexual harassment specifically, Professor Susie Salmon (University of Arizona College of Law) argues that the problem of women's persistent inequality in the legal profession is rooted in classical notions of what it means to be a judge and advocate. In her article Reconstructing the Voice of Authority, 51 Akron Law Review 143 (2017), Salmon begins by quoting famous feminist classicist Mary Beard who has written tellingly about the mythic Penelope, the first woman in recorded Western history to be told to be quiet (and by her son). Salmon argues
until we stop indoctrinating law students that a “good lawyer” looks, sounds, and presents like the Classical warrior—that is, a male—these barriers will persist. For many law students, the first place they get to model what it means to look, sound, and act like a lawyer is in moot court or other oral-argument exercises. Especially in light of an overall law-school culture that reinforces the significance of inborn abilities, it is not hard to see how moot court’s frequent emphasis on “natural” oral-advocacy talent, and its implicit connection of that talent to traits traditionally associated with men, can influence how students—and later lawyers—develop rigid conceptions of what a good lawyer looks, sounds, and acts like. And continuing to uncritically teach the values of Classical rhetoric—values inherited from a culture that silenced women’s voices in the public sphere—exacerbates the problem.
Her concentration on moot court comes two decades after Mairi N. Morrison, May It Please Whose Court?: How Moot Court Perpetuates Gender Bias in the “Real World” of Practice, 6 UCLA WOMEN’S L.J. 49 (1995), and essentially asks why things have not changed.
Perhaps it is because there is a continued effort to police women's voices. As Salmon states:
And, as modern moot- court wisdom would have it, the voice of authority is still a deep and resonant one. No lesser authorities than U.S. Supreme Court Justice Antonin Scalia and noted legal-writing expert Bryan Garner advise advocates to spend time on efforts to lower their vocal pitch, opining that “a high and shrill tone does not inspire confidence.” Scalia and Garner hardly stand alone; advice about lowering vocal register pervades books and articles on effective oral advocacy. Even those oral-advocacy experts who explicitly acknowledge the sexism that may underlie the connection between low voices and authority nonetheless counsel advocates to speak in the lower end of their vocal range.
Monday, October 30, 2017
In an Order and Opinion in Doe v. Trump, United States District Judge for the District of Columbia Colleen Kollar-Kotelly partially enjoined the president's actions to limits the service of transgender persons in the United States military. Judge Kollar-Kelly denied the motion for preliminary injunction regarding the Sex Reassignment Directive, but granted the motion for preliminary injunction regarding the Accession and Retention Directives.
Recall that this lawsuit, filed by lawyers for the National Center for Lesbian Rights (NCLR) and GLBTQ Legal Advocates and Defenders (GLAD) is one of several complaints challenging the president's military action, and included claims for a violation of equal protection, due process, and a nonconstitutional argument of equitable estoppel.
Judge Kollar-Kotelly's 76 page opinion, which begins with a recitation of the President's "statement via Twitter" on July 26, 2017, announcing that “the United States Government will not accept or allow transgender individuals to serve in any capacity in the U.S. Military.” This was followed almost a month later by the President's Memorandum for the Secretary of Defense and Secretary of Homeland Security through the Office of the Press Secretary directing the halt of accession of transgender individuals into the military and the halt of all resources "to fund sex-reassignment surgical procedures for military personnel, except to the extent necessary to protect the health of an individual who has already begun a course of treatment to reassign his or her sex." The President's Twitter statement and the subsequent Presidential memorandum are the centerpiece of the Government's argument that the plaintiffs lack standing and that their claims are not ripe under Article III.
Judge Kollar-Kotelly wrote:
Defendants have moved to dismiss this case, principally on the basis that the Court lacks jurisdiction. Although highly technical, these jurisdictional arguments reduce to a few simple points: the Presidential Memorandum has not effected a definitive change in military policy; rather, that policy is still subject to review; until that review is complete, transgender service members are protected; and any prospective injuries are too speculative to require judicial intervention.
These arguments, while perhaps compelling in the abstract, wither away under scrutiny.
Judge Kollar-Kotelly's opinion then spends the majority of the opinion discussing the standing and ripeness issues. As to the Surgery challenge, the opinion concludes that "none of the Plaintiffs have demonstrated an injury in fact with respect to the Sex Reassignment Surgery Directive," because none of the "Plaintiffs have demonstrated that they are substantially likely to be impacted by the Sex Reassignment Surgery Directive" In fact, the plaintiffs' medical procedures would be performed. However, there was standing on the Accession and Retention Directives because although an Interim Guidance possibly protects some transgender service members and allows for waivers,
The President controls the United States military. The directives of the Presidential Memorandum, to the extent they are definitive, are the operative policy toward military service by transgender service members.
Moreover, "the injury in fact element of standing in an equal protection case is the denial of equal treatment resulting from the imposition of the barrier.”
Compared to the extensive analysis of the Article III issues, Judge Kollar-Ketelly's analysis of the equal protection claim based on the Fifth Amendment is much more succinct. The opinion first determines the level of scrutiny, deciding on intermediate scrutiny for two reasons.
First, "on the current record, transgender individuals—who are alone targeted for exclusion by the Accession and Retention Directives—appear to satisfy the criteria of at least a quasi-suspect classification," considering whether they have "experienced a ‘history of purposeful unequal treatment’ or been subjected to unique disabilities on the basis of stereotyped characteristics not truly indicative of their abilities," and whether they have been as a group “relegated to such a position of political powerlessness as to command extraordinary protection from the majoritarian political process," and whether the group “exhibit[s] obvious, immutable, or distinguishing characteristics that define them as a discrete group.” Judge Kollar-Ketelly found that transgendered people satisfied these criteria, noting that although there was no binding precedent on this issue, other courts had reached similar conclusions and citing Evancho v. Pine-Richland Sch. Dist.
Second, Judge Kollar-Ketelly was "also persuaded that the Accession and Retention Directives are a form of discrimination on the basis of gender, which is itself subject to intermediate scrutiny. It is well-established that gender-based discrimination includes discrimination based on non- conformity with gender stereotypes."
In the application of intermediate scrutiny, Judge Kollar-Ketelly recited the rule of United States v. Virginia (VMI) (1996), and held that the Accession and Retention Directives relied on overbroad stereotypes and were not substantially related to the Government's stated interests. The opinion then considered the question of deference in the military context:
Nonetheless, given the deference owed to military personnel decisions, the Court has not based its conclusion solely on the speculative and overbroad nature of the President’s reasons. A second point is also crucial. As far as the Court is aware at this preliminary stage, all of the reasons proffered by the President for excluding transgender individuals from the military in this case were not merely unsupported, but were actually contradicted by the studies, conclusions and judgment of the military itself. As described above, the effect of transgender individuals serving in the military had been studied by the military immediately prior to the issuance of the Presidential Memorandum. In connection with the working group chaired by the Under Secretary of Defense for Personnel and Readiness, the RAND National Defense Research Institute conducted a study and issued a report largely debunking any potential concerns about unit cohesion, military readiness, deployability or health care costs related to transgender military service. The Department of Defense Working Group, made up of senior uniformed officers and senior civilian officers from each military department, unanimously concluded that there were no barriers that should prevent transgender individuals from serving in the military, rejecting the very concerns supposedly underlying the Accession and Retention Directives. In fact, the Working Group concluded that prohibiting transgender service members would undermine military effectiveness and readiness. Next, the Army, Air Force and Navy each concluded that transgender individuals should be allowed to serve. Finally, the Secretary of Defense concluded that the needs of the military were best served by allowing transgender individuals to openly serve. In short, the military concerns purportedly underlying the President’s decision had been studied and rejected by the military itself. This highly unusual situation is further evidence that the reasons offered for the Accession and Retention Directives were not substantially related to the military interests the Presidential Memorandum cited.
the President abruptly announced, via Twitter—without any of the formality or deliberative processes that generally accompany the development and announcement of major policy changes that will gravely affect the lives of many Americans—that all transgender individuals would be precluded from participating in the military in any capacity. These circumstances provide additional support for Plaintiffs’ claim that the decision to exclude transgender individuals was not driven by genuine concerns regarding military efficacy.
Finding a likelihood of success on the merits of the equal protection claim, the opinion quickly dispatched the other considerations used in evaluating the issuance of a preliminary injunction, finding them met.
Expect the government to appeal as well as opinions in the other pending cases.
Tuesday, October 24, 2017
In an Order today the Court brought the litigation in Hawai'i v. Trump on Muslim Ban/Travel ban 2.0 to a close. The Order provides:
We granted certiorari in this case to resolve a challenge to the temporary suspension of entry of aliens and refugees under Section 2(c) and Section 6 of Executive Order No. 13,780. Because those provisions of the Order have “expired by [their] own terms,” the appeal no longer presents a “live case or controversy.” Burke v. Barnes, 479 U. S. 361, 363 (1987). Following our established practice in such cases, the judgment is therefore vacated, and the case is remanded to the United States Court of Appeals for the Ninth Circuit with instructions to dismiss as moot the challenge to Executive Order No. 13,780. United States v. Munsingwear, Inc., 340 U. S. 36, 39 (1950). We express no view on the merits.
Justice Sotomayor dissents from the order vacating the judgment below and would dismiss the writ of certiorari as improvidently granted.
This Order replicates the Court's previous dismissal in IRAP v. Trump on October 10.
This does not end litigation on the issues.
Recall that so-called Muslim Ban/Travel Ban 2.0 has been replaced by so-called Muslim Ban/Travel Ban 3.0, Presidential Proclamation 9645, entitled “Enhancing Vetting Capabilities and Processes for Detecting Attempted Entry Into the United States by Terrorists or Other Public-Safety Threats”of September 24, 2017. Like the previous iterations, this has been enjoined by federal judges in Hawai'i (Hawai'i v. Trump) and in Maryland (IRAP v. Trump).
Wednesday, October 18, 2017
A few hours after Hawai'i District Judge Derrick Watson granted a nationwide preliminary injunction in Hawai'i v. Trump in an extensive order based largely on statutory grounds, Maryland District Judge Theodore Chuang has also issued a nationwide injunction against the so-called "Muslim Ban 3.0" in an almost 100 page opinion in International Refugee Assistance Project (IRAP) v. Trump.
Recall that Judge Chuang had issued an injunction against the enforcement of Muslim Ban 2.0, which the en banc Fourth Circuit had affirmed 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. The United States Supreme Court, having granted certiorari to the case (as well as Hawai'i v. Trump), had recently vacated the Fourth Circuit opinion given the Government's suspension of version 2.0 of the "Muslim Ban" (President's March 6, 2017 Executive Order "Protecting The Nation From Foreign Terrorist Entry Into The United States" (now numbered EO 13,780), with Presidential Proclamation 9645, entitled “Enhancing Vetting Capabilities and Processes for Detecting Attempted Entry Into the United States by Terrorists or Other Public-Safety Threats”of September 24, 2017, known colloquially as "Muslim Ban" or "Travel Ban" or EO "3.0."
In short, although there are some differences in this third iteration, including the addition of nationals from the countries of Chad, North Korea, and Venezuela, as well as Iran, Libya, Somalia, Syria, Yemen, Judge Chuang concluded that "Muslim Ban 3.0" suffered from the same constitutional infirmities as the previous bans.
Judge Chuang found that the Plaintiffs had standing and that parts on the Proclamation conflicted with the Immigration and Nationality Act, similar to the conclusions of Judge Watson in Hawai'i v. Trump. However, because the statutory claims were not sufficient to enjoin the challenge to nonimmigrantion visas, Judge Chuang proceeded to the constitutional claims.
On the Establishment Clause challenge, Judge Chuang ultimately concluded that the Plaintiffs had a likelihood of prevailing on the merits. The central question, as it had been previously, is the extent to which the President's motivation is a "Muslim Ban" and thus comes within the First Amendment's prohibition as most exemplified by McCreary County. v. ACLU of Kentucky (2005) and the first prong of the well-established test from Lemon v. Kurtzman (1971), essentially requiring a government act to have a secular purpose. Given that courts had previously held that the two previous iterations of the travel ban were motivated by anti-Muslim sentiment, Judge Chuang considered whether this new Proclamation was still tainted by that motivation or if it had been replaced by nuetral considerations such as national security. The "taint" does not persist forever, but neither should courts be "absentminded" as to the context.
Judge Chuang wrote:
Thus, while Defendants assert that the Proclamation’s travel ban was arrived at through the routine operations of the government bureaucracy, the public was witness to a different genealogy, one in which the President—speaking “straight to the American people,” — announced his intention to go back to and get even tougher than in EO-1 and EO-2. Notably, the June 5 tweet calling for a “much tougher version” reveals that even before President Trump had received any reports on the DHS Review that ostensibly identified the need for a travel ban, the first of which he received over a month later on July 9, 2017, the President had already decided that the travel ban would continue. His September 15, 2017 tweet calling for a “far larger, tougher” travel ban, issued the same day that that the final report was received, reinforced this position. . . . [The President's] statements
Here, those statements do not offer “persuasive” rejection of the President’s prior calls for a Muslim ban, or his stated intention to use a ban on certain “dangerous territory” to effectuate a Muslim ban, nor do they show that the stated intention to impose a Muslim ban has been “repealed or otherwise repudiated.” Rather, they cast the Proclamation as the inextricable re-animation of the twice-enjoined Muslim ban, and, in echoes of McCreary, convey the message that the third iteration of the ban—no longer temporary—will be the “enhanced expression” of the earlier ones.
[citations omitted]. Thus, Judge Chuang concluded that
where the Proclamation itself is not sufficiently independent of EO-2 to signal a purposeful, persuasive change in the primary purpose of the travel ban, and there were no other public signs that “as persuasively” as the original violation established a different primary purpose for the travel ban, it cannot find that a “reasonable observer” would understand that the primary purpose of the Proclamation’s travel ban is no longer the desire to impose a Muslim ban.
Having concluded that the Plaintiffs would likely prevail on the merits of the First Amendment claim, Judge Chuang did not discuss the Equal Protection challenge.
Judge Chuang issued an Order enjoining enforcement of section 2 of the Proclamation.
Like the injunction issued in Hawai'i v. Trump, this is sure to be appealed by the Trump Administration.
Tuesday, October 17, 2017
In the third iteration of the "Muslim Ban" or "Travel Ban" before the courts, federal District Judge Derrick Watson has issued an Order granting a nationwide preliminary injunction in Hawai'i v. Trump.
Recall that Judge Watson previously issued a preliminary injunction in Hawai'i v. Trump regarding a previous incarnation of the travel ban and that the United States Supreme Court has not yet disposed of the case to which it granted certiorari although it did vacate a similar Fourth Circuit case.
In today's Order and Opinion, Judge Watson began pointedly:
Professional athletes mirror the federal government in this respect: they operate within a set of rules, and when one among them forsakes those rules in favor of his own, problems ensue. And so it goes with EO-3.
The constitutional issues before the court involved standing of the States and of the individual plaintiffs. Given that the judge had previously held there was standing and there had been no substantial changes, Judge Watson unsurprisingly held there was standing. Judge Watson also held the claims were ripe and justiciable, rejecting the government's "troubling" contentions that the statutory challenges were not reviewable.
Judge Watson rests the likelihood to succeed on the merits conclusion on the statutory claims and did not discuss any constitutional issues. However, embedded in the statutory analysis is the question of Executive powers. For Judge Watson, EO-3 "improperly uses nationality as a proxy for risk" and its findings are "inconsistent with and do not fit the restrictions that the order actually imposes."
Judge Watson repeats the Plaintiffs' assertion that the President has never repudiated his early calls for a Muslim ban and that the "record has only gotten worse." In support, the Order's footnote 9 reads:
For example, on June 5, 2017, “the President endorsed the ‘original Travel Ban’ in a series of tweets in which he complained about how the Justice Department had submitted a ‘watered down, politically correct version’” to the Supreme Court. TAC ¶ 86 (quoting Donald J. Trump (@realDonaldTrump), Twitter (June 5, 2017, 3:29 AM EDT) https://goo.gl/dPiDBu). He further tweeted: “People, the lawyers and the courts can call it whatever they want, but I am calling it what we need and what it is, a TRAVEL BAN!” TAC ¶ 86 (quoting Donald J. Trump (@realDonaldTrump), Twitter (June 5, 2017, 3:25 AM EDT), https://goo.gl/9fsD9K). He later added: “That’s right, we need a TRAVEL BAN for certain DANGEROUS countries, not some politically correct term that won’t help us protect our people!” TAC ¶ 86 (quoting Donald J. Trump (@realDonaldTrump), Twitter (June 5, 2017, 6:20 PM EDT), https://goo.gl/VGaJ7z). Plaintiffs also point to “remarks made on the day that EO-3 was released, [in which] the President stated: ‘The travel ban: The tougher, the better.’” TAC ¶ 94 (quoting The White House, Office of the Press Sec’y, Press Gaggle by President Trump, Morristown Municipal Airport, 9/24/2017 (Sept. 24, 2017), https://goo.gl/R8DnJq).
Judge Watson enjoined the federal defendants from
"enforcing or implementing Sections 2(a), (b), (c), (e), (g), and (h) of the Proclamation issued on September 24, 2017, entitled “Enhancing Vetting Capabilities and Processes for Detecting Attempted Entry into the United States by Terrorists or Other Public-Safety Threats” across the Nation. Enforcement of these provisions in all places, including the United States, at all United States borders and ports of entry, and in the issuance of visas is prohibited, pending further orders from this Court."
The Judge also preemptively denied a stay in the case of emergency appeal - - - which will surely follow.
Tuesday, October 10, 2017
The United States Supreme Court issued an Order in Trump v. International Refugee Assistance Project (IRAP) bring the case to a close:
We granted certiorari in this case to resolve a challenge to“the temporary suspension of entry of aliens abroad under Section 2(c) of Executive Order No. 13,780.” Because that provision of the Order “expired by its own terms” on September 24, 2017, the appeal no longer presents a “live case or controversy.” Burke v. Barnes, 479 U. S. 361, 363 (1987). Following our established practice in such cases, the judgment is therefore vacated, and the case is remanded to the United States Court of Appeals for the Fourth Circuit with instructions to dismiss as moot the challenge to Executive Order No. 13,780. United States v. Munsingwear, Inc., 340 U. S. 36, 39 (1950). We express no view on the merits.
Justice Sotomayor dissents from the order vacating the judgment below and would dismiss the writ of certiorari as improvidently granted.
Recall that the en banc Fourth Circuit concluded 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. The main opinion was authored by Chief Judge Roger Gregory with six other judges joining in full. The case had proceeded directly to en banc from Maryland District Judge Theodore Chuang's Opinion and nationwide injunction .
Most likely, a similar order disposing on Hawai'i v. Trump will follow.
However, the new "travel ban" - - - the third attempt by the Trump Administration - - - has already been challenged.
Monday, October 9, 2017
The second Monday in October is designated as Columbus Day, the day that Italian mariner Christopher Columbus allegedly first saw the "New World," but is increasingly commemorated as Indigenous Peoples Day, recognizing that Native Americans did not necessarily benefit from European colonization.
A good read is Oneida Nation scholar Doug Kiel's article, Bleeding Out: Histories and Legacies of Indian Blood ” in The Great Vanishing Act: Blood Quantum and the Future of Native Nations (2017). Kiel writes of the European preoccupation with "blood" as a source of identity - - - and white supremacy - - - tracing it to the Spanish Inquisition and anxieties about"Christian blood" being contaminated by Jewish and Muslim blood. Moreover, he contrasts Native racial status to the "one-drop rule” of "African American hypodescent, according to which individuals of mixed ancestry only inherit the status of their black kin, with “African blood” polluting all other types of 'blood.'" On the other hand, “white blood” has the capacity to fully absorb “Indian blood" according to early cases, as well as more recent ones. For example, Kiel notes that Justice Alito's opinion for the Court in Adoptive Couple v. Baby Girl (the "Baby Veronica" case), begins by describing the blood quantum of the child: " (Baby Girl) who is classified as an Indian because she is 1.2% (3/256) Cherokee." Other possibilities for identity, including nationality and culture, are flattened.
The erasure of Native identity is one argument against the celebration of Columbus Day. Last year, in the Presidential Proclamation for Columbus Day, then-President Obama expressed recognition for the rationales of Indigenous People's Day:
As we mark this rich history, we must also acknowledge the pain and suffering reflected in the stories of Native Americans who had long resided on this land prior to the arrival of European newcomers. The past we share is marked by too many broken promises, as well as violence, deprivation, and disease. It is a history that we must recognize as we seek to build a brighter future -- side by side and with cooperation and mutual respect. We have made great progress together in recent years, and we will keep striving to maintain strong nation-to-nation relationships, strengthen tribal sovereignty, and help all our communities thrive.
In the Presidential Proclamation for Columbus Day this year, current-President Trump does not acknowledge Native or Indigenous peoples.
image: "My World is Not Flat,"
Wednesday, September 27, 2017
In its opinion in Doe v. University of Cincinnati, a Sixth Circuit panel affirmed a district judge's grant of a preliminary injunction against the university suspension of student John Doe. The university suspended graduate student John Doe after a finding of a sexual offense in a Title IX hearing at which the complaintant did not appear.
Using the well-established criteria for procedural due process claims, Judge Richard Griffin's relatively succinct opinion found that the risk of erroneous deprivation of Doe's acknowledged interest was great. Doe claimed that his inability to cross-examine the complaintant in a context in which the basic issue was one of credibility - - - a choice of believing Doe's assertion that the sex was consensual and Jane Roe's complaint that it was not consensual - - - was a fundamental flaw. The court agreed, even though the university had no ability to compel Jane Roe's appearance. The court also found the time lapse troubling: the university waited a month after the complaint to interview Jane Roe, four months after that to notify John Doe, and four months after that to hold the hearing.
The court did consider the potential for "emotional trauma" to Jane Roe, but concluded that when there is an issue of credibility, there must be a mutual test of credibility as part of the process "where the stakes are this high." The court did seek to qualify its rationale as not requiring John Doe be allowed to cross-examine Jane Roe during the hearing:
However, we emphasize that UC’s obligations here are narrow: it must provide a means for the ARC [the university’s Administrative Review Committee] panel to evaluate an alleged victim’s credibility, not for the accused to physically confront his accuser.
The University has procedures in place to accommodate this requirement. A month before the ARC hearing, Mitchell informed Doe and Roe that they could “participate via Skype . . . if they could not attend the hearing.” Doe did not object to Roe’s participation by Skype, and he does not object to this practice on appeal. To the contrary, the record suggests that he or one or more of the ARC panelists in fact appeared at the hearing via Skype. What matters for credibility purposes is the ARC panel’s ability to assess the demeanor of both the accused and his accuser. Indisputably, demeanor can be assessed by the trier of fact without physical presence, especially when facilitated by modern technology.
The court's opinion added that it was "sensitive" to the "competing concerns" of the case: the goal of reducing sexual assault is more than laudable, it is necessary; but the elimination of "basic procedural protections" may not be a "fair price" to achieve that goal.
These "competing concerns" are likewise the subject of debate as controversial Secretary of Education Betsy De Vos has acted to rescind the previous guidelines for educational institutions dealing with sexual assault based in part on the perceived "deprivation of rights" for accused students. While the new memo does not mandate cross-examination (unless it is provided to one party and then must be provided to both), no doubt the Sixth Circuit's opinion in Doe v. University of Cincinnati will be used to bolster Secretary de Vos's decision.