Friday, February 23, 2018

Second Circuit Upholds NYC's Premises Handgun License Restriction

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. 

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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.

[image via]

February 23, 2018 in Current Affairs, Dormant Commerce Clause, Due Process (Substantive), Equal Protection, First Amendment, Opinion Analysis, Second Amendment | Permalink | Comments (0)

Thursday, February 1, 2018

Daily Read: Presidential Proclamation on Black History Month

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.

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February 1, 2018 in Current Affairs, Executive Authority, Race | Permalink | Comments (0)

Monday, January 29, 2018

Ninth Circuit Rejects Minors' Right to Court-Appointed Counsel in Immigration Proceedings

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."

Attorney

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."

As to the third factor, the court concludes that the government's burden would be a financial one: "Requiring government-funded counsel would significantly increase the funds expended on immigration matters."
 
The court therefore found no procedural due process right to appointed counsel and further bolstered this finding with a discussion of the judicial role and separation of powers, a discussion of the merits of the other substantive claims under the INA.
 
The window left open by the concurring opinion - - - the case of unaccompanied minors - - - will most likely be the next subject of litigation.
 

January 29, 2018 in Current Affairs, Due Process (Substantive), Family, Fifth Amendment, Opinion Analysis | Permalink | Comments (0)

Wednesday, January 24, 2018

NAACP Challenges Recission of TPS Status for Haitians As Violating Equal Protection

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.

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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.

 

January 24, 2018 in Current Affairs, Equal Protection, Fifth Amendment, Race, Teaching Tips | Permalink | Comments (0)

Monday, January 15, 2018

Daily Read: MLK and Affirmative Action

For Martin Luther King day, a good read is Professor David B. Oppenheimer's article Dr. King’s Dream of Affirmative Action, available on ssrn

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.")

Martin_Luther_King_Jr_NYWTS_4Yet 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."

 

 

January 15, 2018 in Current Affairs, Equal Protection, First Amendment, Fourteenth Amendment, Race, Reconstruction Era Amendments, Scholarship | Permalink | Comments (0)

Thursday, January 11, 2018

Daily Read: Amicus Brief Supporting Summer Zervos Right to Sue Donald Trump

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.

January 11, 2018 in Courts and Judging, Current Affairs, Executive Authority, Executive Privilege, Federalism, Scholarship | Permalink | Comments (0)

Thursday, January 4, 2018

Daily Read: The Pentagon Papers Case, Prior Restraint, and Fire and Fury

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.

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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

Daily Read: The Meme of Voter Fraud

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

2674975700000578-2985770-image-m-45_1425868236814It 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:

 

January 3, 2018 in Current Affairs, Elections and Voting, Executive Authority, Fifteenth Amendment, Fourteenth Amendment, Race, Scholarship | Permalink | Comments (0)

Monday, January 1, 2018

Daily Read: Reconstructing the (Male) Voice of Authority

 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

1024px-Penelope_(the_faithful_wife_of_Odysseus) _from_Rome _Hadrianic_copy_of_Greek_work_from_5th_century_BC _Ny_Carlsberg_Glyptotek _Copenhagen_(12948415925)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.

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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)
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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)
myriad of definitions

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)
myriad of definitions

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)

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.

Salmon's article ends with a "menu of solutions" particular to moot court, but they could easily be translated to issues of sexual harassment as well as judicial diversity and constitutional equality.
 
[image: "Penelope (the faithful wife of Odysseus)" 5th C. BCE via]

 

January 1, 2018 in Courts and Judging, Current Affairs, Gender, Scholarship, Teaching Tips | Permalink | Comments (0)

Monday, October 30, 2017

District Judge Partially Enjoins President's Transgender Military Ban

 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 TG TweetsPresident'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 opinion also considered "the circumstances surrounding the announcement of the President’s policy":

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.

 

October 30, 2017 in Current Affairs, Equal Protection, Executive Authority, Fifth Amendment, Gender, Medical Decisions, Opinion Analysis, Ripeness, Sexuality, Standing | Permalink | Comments (0)

Tuesday, October 24, 2017

No Surprise: SCOTUS Vacates Trump v. Hawai'i Travel Ban Certiorari

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).

 

October 24, 2017 in Courts and Judging, Current Affairs, Establishment Clause, Executive Authority, First Amendment, Fundamental Rights, Race, Recent Cases, Religion | Permalink | Comments (0)

Wednesday, October 18, 2017

Second Federal District Judge Issues Preliminary Injunction on Muslim Ban 3.0

 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.

 

October 18, 2017 in Courts and Judging, Current Affairs, Establishment Clause, First Amendment, Opinion Analysis, Race, Religion | Permalink | Comments (0)

Tuesday, October 17, 2017

Federal District Judge Issues Preliminary Injunction on "Muslim Ban 3.0"

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.

 

 

October 17, 2017 in Courts and Judging, Current Affairs, Executive Authority, Foreign Affairs, Opinion Analysis, Race, Recent Cases, Standing | Permalink | Comments (0)

Tuesday, October 10, 2017

SCOTUS Vacates Fourth Circuit Opinion in Muslim Ban 2.0

 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.

 

 

October 10, 2017 in Current Affairs, Establishment Clause, Executive Authority, Family, First Amendment, Race | Permalink | Comments (0)

Monday, October 9, 2017

Daily Read: Columbus/Indigenous Peoples Day

 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.

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 image: "My World is Not Flat,"

by Margaret Bagshaw

via

 

October 9, 2017 in Current Affairs, Race, Theory | Permalink | Comments (0)

Wednesday, September 27, 2017

Sixth Circuit Finds Lack of Procedural Due Process in Title IX Disciplinary Hearing

 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.

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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.

 

September 27, 2017 in Current Affairs, Gender, Opinion Analysis, Procedural Due Process | Permalink | Comments (0)

Monday, September 11, 2017

More Challenges to DACA Rescission

 Recall that last week, fifteen states and the District of Columbia filed New York v. Trump challenging the rescission of 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. The rescission was promised by President Trump, announced by Attorney General Jefferson Sessions, now in a Memorandum from the Department of Homeland Security, although some of the details of the rescission remain murky.

Today, several other states - - - California, Maine, Maryland, and Minnesota - - - filed a complaint in the Northern District of California, California v. Department of Homeland Security, also challenging the DACA rescission making similar but not identical arguments.  In the California challenge, equal protection is the sixth of the six counts, with no mention of anti-Mexican animus in the allegations.  Instead, the equal protection claim contends that "rescission of DACA violates fundamental conceptions of justice by depriving DACA grantees, as a class, of their substantial interests in pursuing a livelihood to support themselves and fu1ther their education."

However, like New York v. Trump, the California complaint includes a challenge based on the Fifth Amendment's Due Process Clause, contending in its first cause of action that:

Given the federal government's representations about the allowable uses of information provided by DACA applicants, Defendants' change in policy on when to allow the use of information contained in DACA applications and renewal requests for purposes of immigration enforcement, including identifying, apprehending, detaining, or deporting non- citizens, is fundamentally unfair.

This "informational use" due process claim is buttressed by the California complaint's fifth cause of action sounding in equitable estoppel, a claim not made in the New York complaint. Claims similar to the New York complaint include violations of the Administrative Procedure Act and the Regulatory Flexibility Act. Factual allegations supporting these causes of action include references to the President's tweets as advancing rationales for the rescission that are absent or contrary to the Homeland Security memorandum, thus making the rescission arbitrary and capricious.

Additionally, last week in a separate complaint in Regents of the University of California v. Department Homeland Security, also filed in the Northern District of California, another challenge to the DACA rescission was filed by named plaintiff, Janet Napolitano, now Chancellor of the University of California, but also former Secretary of the Department of Homeland Security.  In the University of California (UC) complaint, there is no equal protection claim, and the due process claim is third of three claims for relief and sounds in procedural due process:

¶69.    The University has constitutionally-protected interests in the multiple educational benefits that flow from a diverse student body. Thousands of DACA students have earned prized places as undergraduate and graduate students at the University of California through their record of high— even extraordinary—personal achievement in high school and college. In reliance on DACA, the University has chosen to make scarce enrollment space available to these students and to invest in them substantial time, financial aid, research dollars, housing benefits, and other resources, on the expectation that these students will complete their course of study and become productive members of the communities in which the University operates, and other communities throughout the nation. If these students leave the University before completing their education, UC will lose the benefits it derives from their contributions, as well as the value of the time and money it invested in these students with the expectation that they would be allowed to graduate and apply their talents in the United States job market.

¶70.    UC students who are DACA recipients also have constitutionally-protected interests in their DACA status and the benefits that come from that status, including the ability to work, to pursue opportunities in higher education, to more readily obtain driver’s licenses and access lines of credit, to obtain jobs, and to access certain Social Security and Medicare benefits.

¶71.    The Rescission and actions taken by Defendants to rescind DACA unlawfully deprive the University and its students of these and other constitutionally-protected interests without due process of law. Such deprivation occurred with no notice or opportunity to be heard.

 The other two causes of action in the UC complaint are based on the Administrative Procedure Act, with the first claim for relief contending the rescission is "arbitrary and capricious" and the second cause of action objecting to lack of notice and comment.  However, the "arbitrary and capricious" claim for relief does include a reference to the Fifth Amendment:"The Rescission and actions taken by Defendants to rescind DACA are arbitrary and capricious, an abuse of discretion, and not in accordance with law because, among other things, they are contrary to the constitutional protections of the Fifth Amendment."

It may be that even more constitutional and statutory challenges to DACA are forthcoming as protests against the rescission continue.

DACA_protest_at_Trump_Tower_(52692)

[image: DACA Rescission Protest at Trump Tower, NYC, September 2017, photo by Rhododendrites via]

 

 

September 11, 2017 in Cases and Case Materials, Current Affairs, Due Process (Substantive), Equal Protection, Procedural Due Process, Race, Standing | Permalink | Comments (0)

Wednesday, September 6, 2017

States Challenge DACA Rescission in New York v. Trump

 In a Complaint filed today in the Eastern District of New York in New York v. Trump, fifteen states and the District of Columbia have challenged the rescission of 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.  The rescission was promised by President Trump, announced by Attorney General Jefferson Sessions, and is now in a Memorandum from the Department of Homeland Security, although some of the details of the rescission remain murky.  The complaint describes the rescission as "animus-driven."

The first two causes of action of the five total causes of action in the 58 page Complaint allege constitutional infirmities. 

The first cause of action is based on the Equal Protection component of the Due Process Clause of the Fifth Amendment, and alleges that the rescission targets individuals based on their national origin and is based, at least in part, by the desire to harm a particular group. Paragraphs 239-252 detail the statements by Trump, both as a candidate and as President, expressing anti-Mexican sentiments.  Part of these allegations include the controversial pardon of former Maricopa County, Arizona Sheriff Joe Arpaio. As for the timing of the rescission, the complaint also contains allegations regarding Texas, alleging that a "demand that President Trump eliminate DACA is part of a history of intentional discrimination against Latinos/Hispanics by the State of Texas" (¶256) and then detailing federal court findings that Texas has been found liable for "engaging in unlawful discrimination based on race and/or national origin."  Among the cases cited is the recent Perez v. Abbott concerning redistricting.

The second cause of action sounds in Due Process, arguing a breach of "fundamental fairness" relating to information use.  Specifically, ¶278 avers:

Given the federal government’s representations about the allowable uses of information provided by DACA applicants, a refusal to prohibit the use of information contained in DACA applications and renewal requests for purposes of immigration enforcement, including identifying, apprehending, detaining, or deporting non-citizens, is fundamentally unfair.

Two other causes of action relate to the Administrative Procedure Act - - - arbitrary and capricious action and failure to follow notice and comment - - - while the final cause of action is based on the Regulatory Flexibility Act, requiring federal agencies to "analyze the impact of rules they promulgate on small entities and publish initial and final versions of those analyses for comment."

The extensive allegations in the complaint by individual states include statements regarding each state's harm if DACA were rescinded in an effort to establish each state's standing.  In addition to New York, the plaintiffs are Massachusetts, Washington, Connecticut, Delaware, District of Columbia, Hawaii, Illinois, Iowa, New Mexico, North Carolina, Oregon, Pennsylvania, Rhode Island, Vermont, and Virginia. Generally, the allegations pertaining to each states detail the effect on their state colleges and universities, state companies, and state economies.

The complaint is a serious challenge to the DACA rescission and in some ways is similar to the ongoing state challenges to the so-called Muslim travel ban, another highly controversial Trump administration action still in litigation.

Rally_Against_the_Immigration_Ban_(32487618142)[image via]

 UPDATE: Additional complaints discussed here.

September 6, 2017 in Courts and Judging, Current Affairs, Due Process (Substantive), Equal Protection, Fifth Amendment, Standing | Permalink | Comments (0)

Tuesday, August 29, 2017

Alito Stays Three-Judge Court Ruling on Texas Redistricting Violations

 In an exceedingly brief Order signed only by Associate Justice Samuel Alito, the United States Supreme Court in Abbott v. Perez, stated:

UPON CONSIDERATION of the application of counsel for the applicants,

IT IS ORDERED that the order of the United States District Court for the Western District of Texas, case No. SA-11-CV-360, entered August 15, 2017, is hereby stayed pending receipt of a response, due on or before Tuesday, September 5, 2017, by 3 p.m., and further order of the undersigned or of the Court.

Recall that the three-judge court, after an extensive opinion, ultimately directed the Texas Attorney General to provide a "written advisory within three business days stating whether the Legislature intends to take up redistricting in an effort to cure these violations and, if so, when the matter will be considered." 

As we discussed, the extensive opinion by the three judge court found constitutional violations, including intentional discrimination, but also rejected several of the challengers' claims.

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[image: Caricature of Associate Justice Alito by Donkey Hotey via ]

 

August 29, 2017 in Current Affairs, Elections and Voting, Equal Protection, Race, Reconstruction Era Amendments, Supreme Court (US) | Permalink | Comments (0)

Monday, August 28, 2017

Lawsuits Filed Against Transgender Troop Ban

 Late Friday August 25, President Trump issued a 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."  By Monday, there were at least three lawsuits challenging the action on constitutional grounds.

A month before, Trump had tweeted his thoughts regarding transgender individuals in the military, reportedly taking military officials by surprise.

TWEETS

Soon after the tweets, the complaint in Doe v. Trump was filed by lawyers for the National Center for Lesbian Rights (NCLR) and GLBTQ Legal Advocates and Defenders (GLAD) in the District Court for the District of Columbia, challenging any military action on the basis of a violation of equal protection, due process, and a nonconstitutional argument of equitable estoppel.

This complaint is now joined by two others: The complaint in Stone v. Trump was filed by lawyers for the ACLU in the United States District Court for the District of Maryland, challenging the 3 policies of the military ban - - - existing troops, enlistment of new troops, and medical care - - - as well as the policies taken as a whole.  Again, the two constitutional issues are equal protection and due process. The complaint in Karnoski v. Trump was filed by lawyers for Lambda Legal Defense and Education Fund in the United States District Court for the Western District of Washington, challenging the policy on the basis of equal protection, due process, as well as the First Amendment's free speech clause.

On the core challenge of equal protection - - - as applied to the federal government through the Fifth Amendment - - - the complaints vary in their detail and possible theories.  In Doe, the NCLR and GLAD complaint, paragraph 71 reads: "The categorical exclusion of transgender people from military service lacks a rational basis, is arbitrary, and cannot be justified by sufficient federal interests." In Stone, the ACLU complaint, paragraph 140 contends that transgender classifications should be treated as sex classifications, deserving heightened scrutiny, and additionally in the next paragraph that transgender status itself warrants heightened scrutiny because "men and women who are transgender, as a class" have historically been subject to discrimination, have a defining characteristic that frequently bears no relation to an ability to contribute to society, exhibit immutable or distinguishing characteristics that define them as a discrete group, and are a minority with relatively little political power.  In Karnoski, the complaint contends that in addition to sex-discrimination, discrimination on the basis of transgender status "bears all the indicia of a suspect classification requiring strict scrutiny by the courts," enumerating similar criteria including history of discrimination, discrete and insular minority, no relation to ability to contribute to society, and arguing the characteristic sometimes expressed as immutability in stating that "gender identity is a core, defining trait" so "fundamental to one's identity and conscience that a person should not be required to abandon it as a condition of equal treatment."

However, whatever standard of scrutiny is applied, all the complaints contend that there is not a sufficient government interest in the policy - - - an argument that may well lead into judicial inquiry into Trump's unorthodox announcement on Twitter as well as any details of thoughtful decision-making.

While there has been some reporting that military officials have discretion in implementing Trump's directives, professors of military law have issued a worth-reading policy statement that the discretion is quite limited; they also argue that the directives are discriminatory and based on inaccuracies.

This litigation is certain to accelerate. Expect more action from the NCLR and GLAD action filed before the Friday policy announcement and requests for preliminary relief. 

 

August 28, 2017 in Current Affairs, Due Process (Substantive), Equal Protection, First Amendment, Gender, Sexuality, Speech, Theory | Permalink | Comments (0)