Thursday, August 16, 2018
Senate Resolution 607 , introduced by Senators Brian Schatz and Chuck Schumer, and affirmed unanimously, provides:
Whereas the First Amendment to the Constitution of the United States protects the press from government control and suppression;
(1) has been recognized as integral to the democratic foundations of the United States since the beginning of the United States; and
(2) has endured and been reaffirmed repeatedly throughout the history of the United States;
Whereas Benjamin Franklin in 1722 wrote, ‘‘Whoever would overthrow the Liberty of a Nation, must begin by subduing the Freeness of Speech.’’;
Whereas Thomas Jefferson in 1786 wrote, ‘‘Our liberty de- pends on the freedom of the press, and that cannot be limited without being lost.’’;
Whereas James Madison in 1789 introduced the freedom of the press in the Bill of Rights to the Constitution of the United States;
Whereas James Madison based the freedom of the press on the Declaration of Rights of the Commonwealth of Virginia, which in 1776 declared, ‘‘The freedom of the Press is one of the greatest bulwarks of liberty, and can never be restrained but by despotic Governments.’’;
Whereas President Ronald Reagan proclaimed August 4, 1985, as Freedom of the Press Day, stating that ‘‘Freedom of the press is one of our most important freedoms and also one of our oldest.’’;
Whereas President Reagan also said, ‘‘Today, our tradition of a free press as a vital part of our democracy is as important as ever. The news media are now using modern techniques to bring our citizens information not only on a daily basis but instantaneously as important events occur. This flow of information helps make possible an informed electorate and so contributes to our national system of self-government.’’;
Whereas Justice Anthony Kennedy wrote in International Soc. for Krishna Consciousness, Inc. v. Lee, 505 U.S. 672 (1992), ‘‘The First Amendment is often inconvenient. But that is beside the point. Inconvenience does not absolve the government of its obligation to tolerate speech.’’;
Whereas the United States Supreme Court also affirmed the history and intent of the freedom of the press in New York Times Co. v. United States, 403 U.S. 713 (1971), stating, ‘‘In the First Amendment, the Founding Fathers gave the free press the protection it must have to fulfill its essential role in our democracy. The press was to serve the governed, not the governors. The Government’s power to censor the press was abolished so that the press would remain forever free to censure the Government. The press was protected so that it could bare the secrets of government and inform the people. Only a free and unrestrained press can effectively expose deception in government.’’;
Whereas tyrannical and authoritarian governments and leaders throughout history have sought to undermine, censor, suppress, and control the press to advance their undemocratic goals and actions; and
Whereas the United States, including the long-held commitment to and constitutional protection of the free press in the United States, has stood as a shining example of democracy, self-government, and freedom for the world to emulate: Now, therefore, be it
(1) the Senate—
(A) affirms that the press is not the enemy of the people;
(B) reaffirms the vital and indispensable role that the free press serves to inform the electorate, uncover the truth, act as a check on the inherent power of the government, further national discourse and debate, and otherwise advance the most basic and cherished democratic norms and freedoms of the United States; and
(C) condemns the attacks on the institution of the free press and views efforts to systematically undermine the credibility of the press as an attack on the democratic institutions of the United States; and
(2) it is the sense of the Senate that it is the sworn responsibility of all who serve the United States by taking the oath to support and defend the Constitution of the United States to uphold, cherish, and protect the entire Constitution, including the freedom of the press.
This Resolution can be seen as a rebuke to presidential statements describing the press as an "enemy of the people."
The Fake News hates me saying that they are the Enemy of the People only because they know it’s TRUE. I am providing a great service by explaining this to the American People. They purposely cause great division & distrust. They can also cause War! They are very dangerous & sick!— Donald J. Trump (@realDonaldTrump) August 5, 2018
Additionally, about 350 media outlets have also published pieces today affirming the importance of a free press and rejecting the "enemy of the people" appellation.
Tuesday, August 14, 2018
President Trump late yesterday issued a breathtaking constitutional signing statement on the John S. McCain National Defense Authorization Act for Fiscal Year 2019. The President called out dozens of provisions for impinging on the commander-in-chief authority, the foreign affairs authority, the appointments authority, executive privilege, and the President's authority to recommend legislation.
Perhaps most alarming, the President identified 18 separate sections that require public disclosure or reports to Congress on various topics as categorically "protected by executive privilege."
My Administration will treat these provisions consistent with the President's constitutional authority to withhold information, the disclosure of which could impair national security, foreign relations, law enforcement, or the performance of the President's constitutional duties.
The move pits the President's inherent Article II powers against Congress's powers to appropriate funds, its war powers and powers over the military, its foreign-relations powers, and its oversight authority (to say nothing of any interest or right that the people have in knowing what their government is up to). But unless Congress is willing to push back (for example, by issuing and enforcing subpoenas for reports required by the Act, but over which the President has claimed a categorical "executive privilege"), or unless a person or group has standing to challenge any of the President's rejection of funding restrictions or requirements or appointments matters, these claims will never see the inside of a courtroom.
If not, then the President will have effectively line-item vetoed a whopping 50 or more provisions of a single Act of Congress, with no check.
In its opinion in Askins v. United States Department of Homeland Security, a panel of the Ninth Circuit vacated a district judge's dismissal of a complaint alleging the confiscation and destruction of photographs by United States Customs and Border Protection (CBP) violated the First Amendment
One issue on appeal was whether the district judge incorrectly applied the "law of the case" doctrine to the amended complaint. The Ninth Circuit held the trial judge was wrong and should have evaluated the amended complaint on its own merits.
The First Amendment issue was whether the complaint stated a claim that the CBP's policies prohibiting photography even in public places was a First Amendment violation. Writing for the court, Judge Jay Bybee noted that the trial judge assumed that the areas adjacent to the ports of entry at these specific southern borders — Calexico West and San Ysidiro — were public fora and the CBP's restrictions were content based. The trial judge found that the CBP policies survived strict scrutiny because of the compelling interest of border security and in a "conclusory fashion" determined that the policies were the least restrictive means of serving the interests. The Ninth Circuit's opinion disagreed:
These conclusions are too thin to justify judgment for the government on a motion to dismiss. * * * * Without question, protecting our territorial integrity is a compelling interest that could justify reasonable restrictions on speech activities at ports of entry. * * * * But the devil lies in the details: “Even at the border, we have rejected an ‘anything goes’ approach.” United States v. Cotterman, 709 F.3d 952, 957 (9th Cir. 2013) (en banc). It is the government’s burden to prove that these specific restrictions are the least restrictive means available to further its compelling interest. They cannot do so through general assertions of national security, particularly where plaintiffs have alleged that CBP is restricting First Amendment activities in traditional public fora such as streets and sidewalks.
The Ninth Circuit did, however, stress that it was not deciding that the places at issue were in fact public fora. This should be a fact-based analysis. Yet the court in a footnote also noted that it was unclear why the CBP applied its guidelines for the press to these plaintiffs:
We are puzzled as to how these guidelines apply to members of the public, whether media or not, who take photographs outside of port of entry facilities from streets and sidewalks accessible to the general public, whether those streets and sidewalks are on or off the port of entry. On their face, the policies would not appear to apply to plaintiffs at all, much less sanction the detention of plaintiffs and the destruction of their photographs under the circumstances alleged.
As the case returns to the district judge, questions of specific geography regarding public places near border entries is sure to figure prominently.
Monday, August 13, 2018
Judge Dabney L. Friedrich (D.D.C.) today rejected challenges to Special Counsel Robert Mueller's office and authority by a defendant in the criminal case against thirteen Russian individuals and three corporations. The ruling in U.S. v. Concord Management says that the special counsel office is constitutional and that Special Counsel Mueller was acting within his authority in bringing this case. The ruling allows the case to go on.
The court first ruled that the special counsel is an "inferior" office under the Appointments Clause and was validly appointed by the Acting AG. The court said that different features of the office pointed in both the "principal officer" and "inferior officer" direction under Edmond, but ultimately the revocability of DOJ's special counsel regulations mean that the office is "inferior":
The regulations' revocability is "[t]he crucial difference" between the Special Counsel regulations and a statute that seeks to bind the executive branch from without, and it is this different that ensures the Special Counsel is an inferior officer. That is, to the extent that the regulations threaten to impair the Acting Attorney General's ability to direct and supervise the Special Counsel, the Department of Justice may simply rescind or revise the regulations at any time. This ability to rescind or revise the regulations as needed means that the Special Counsel is subject to the Acting Attorney General's plenary supervision. It also makes the Special Counsel effectively removable at will: if the for-cause provision stands in the way, the Acting Attorney General need only rescind or revise the regulation in order to remove the Special Counsel.
The court also ruled that the special counsel was an "inferior office" under Morrison v. Olson.
The court went on to say that the office didn't violate the separation of powers. In particular, the court ruled that even if the special counsel regulations are nonbinding on the special counsel (as Concord argued), then "the Special Counsel would be subject to the Acting Attorney General's plenary control by statute. Because executive power would remain wholly within the executive branch, no separation-of-powers problem would arise." Moreover, the court said that the AG had plenty of statutory authority to issue the special counsel regs.
Finally, the court said that Special Counsel Mueller wasn't acting outside of his appointment authority in bringing this particular case.
Thursday, August 9, 2018
In a terse written Order in Grace v. Sessions, United States District Judge for the District of Columbia, Emmet Sullivan reiterated his oral order "requiring the Defendants to return “Carmen” and her daughter to the United States FORTHWITH" (emphasis in original). Judge Sullivan's Order recounted that at the emergency hearing on August 8, "Defendants stated that they would not consent to staying the removal past 11:59 pm Thursday August 9, 2018, but specifically represented to the Court that “Carmen” and her daughter would not be removed prior to that time." The judge therefore set a hearing for 1:00pm on Thursday, during which it was learned that Carmen and her daughter were being removed from the country by plane. The Judge's Order concluded:
HEREBY ORDERED that the Defendants shall return “Carmen” and her daughter to the United States FORTHWITH; and it is
FURTHER ORDERED that in the event that the Defendants do not fully comply with this Order, Defendants Attorney General Jefferson Sessions, III; Secretary of the Department of Homeland Security Kirstjen M. Nielsen; U.S. Citizenship and Immigration Service Director Lee Francis Cissna; and Executive Office of Immigration Review Director James McHenry, preferably accompanied by their attorneys, shall be ORDERED to appear in Court to SHOW CAUSE why they should not be held in CONTEMPT OF COURT; and it is
FURTHER ORDERED that the Defendants shall file a status report on the docket in this case by no later than 5:00 pm August 10, 2018, informing the Court of the Defendants’ compliance with this Order.
[emphasis in original].
The complaint in the case challenges expanded "expedited removal" for asylum seekers whose claims are based on gang violence or domestic violence, with statutory claims for relief augmented by separation of powers arguments and a constitutional claim of violation of due process.
Wednesday, August 8, 2018
The D.C. Circuit yesterday rejected a habeas claim by a long-time (17 years) Guantanamo detainee who argued that the basis for his detention has "unraveled" and that the conflict that originally authorized his detention has ended. In so ruling, the court affirmed that the 2001 AUMF, along with the 2012 National Defense Authorization Act, remain in force, strong as ever, and continue to authorize his detention.
The claimant, a Yemeni who, according to the government, trained with and fought alongside the Taliban, filed an earlier habeas petition in 2005. The courts rejected that petition, concluding that "the Government's account of Al-Alwi'd Taliban-related activities was supported by a preponderance of the evidence, thereby making Al-Alwi an enemy combatant who could lawfully be detained."
This time, however, he claimed that even if his earlier detention was authorized, the authority for his ongoing detention is stale. The court rejected that argument.
The court ruled first that the "[a]uthority to detain has not unraveled." It said that the AUMF retains its original force so long as "hostilities between the United States and the Taliban and al Qaeda continue." "Both [the AUMF and the National Defense Authorization Act] authorize detention until the end of hostilities. Although hostilities have been ongoing for a considerable amount of time, they have not ended."
The court ruled next that "[a]uthority to detain has not expired." The court said that "termination" is "a political act," and that it hasn't yet occurred. "The Executive Branch represents that armed hostilities between the United States forces and those entities persist."
The ruling underscores that the AUMF will remain in full force until the political branches say that hostilities have ended.
Monday, August 6, 2018
United States District Judge Colleen Kollar-Kotelley has reaffirmed the injunction of the ban on transgender individuals in the military, first announced on Twitter by the President in Doe v. Trump in two opinions. Recall that in October, the judge issued a lengthy opinion and a preliminary injunction against the ban as likely to violate equal protection.
The case returned to Judge Kollar-Kotelley after an unsuccessful appeal and attempt to stay the preliminary injunction. The government moved to dismiss, essentially rearguing its contentions regarding standing.
In a 34 page opinion, the judge again rejected these arguments. But the government newly argued for dismissal and dissolution of the preliminary injunction because the 2018 "Mattis Implementation Plan" represents a “new policy” divorced and distinct from the President’s 2017 policy directives that were previously enjoined by this Court, and that the Mattis Implementation Plan does not harm the Plaintiffs in this case. However, the judge held that "whatever legal relevance the Mattis
Implementation Plan might have, it has not fundamentally changed the circumstances of this lawsuit such that Plaintiffs’ claims should be dismissed for lack of jurisdiction, or that the need for the Court’s preliminary injunction has dissipated." In evaluating the Mattis Implementation Plan, the judge stated:
the Mattis Implementation Plan in fact prohibits transgender military service—just as President Trump’s 2017 directives ordered. It is true that the plan takes a slightly less direct approach to accomplishing this goal than the President’s 2017 tweet and memorandum. Instead of expressly banning all “transgender individuals” from military service, the Mattis Implementation Plan works by absolutely disqualifying individuals who require or have undergone gender transition, generally disqualifying individuals with a history or diagnosis of gender dysphoria, and, to the extent that there are any individuals who identify as “transgender” but do not fall under the first two categories, only allowing them to serve “in their biological sex” (which means that openly transgender persons are generally not allowed to serve in conformance with their identity).
[emphasis in original]. In short, she concluded that "whatever legal relevance the Mattis Implementation Plan and associated documents might have, they are not sufficiently divorced from, or different than, the President’s 2017 directive."
However, in a separate and relatively brief opinion, she did grant the government's motion to dismiss Donald Trump as a defendant. The government moved to dismiss the president as a defendant and for a protective order regarding discovery. Judge Kollar-Kotelly concluded that
Through this lawsuit, Plaintiffs ask this Court to enjoin a policy that represents an official, non-ministerial act of the President, and declare that policy unlawful. Sound separation-of-power principles counsel the Court against granting these forms of relief against the President directly.
She noted that confrontation between the judicial and executive branch should be avoided whenever possible, but such confrontation
can be easily avoided here, because dismissing the President will have little or no substantive effect on this litigation. Plaintiffs argue that the acts of the President himself are central to this case, and the Court agrees. But dismissing the President as a Defendant does not mean that those acts will not be subject to judicial review. The Court can still review those acts and, if Plaintiffs are successful in proving that they are unconstitutional, Plaintiffs can still obtain all of the relief that they seek from the other Defendants.
Given that the President is no longer a defendant, the judge ruled the motion for a protective order regarding discovery was moot, but
the Court reiterates that dismissing the President as a party to this case does not mean that Plaintiffs are prevented from pursuing discovery related to the President. The Court understands that the parties dispute whether discovery related to the President which has been sought by Plaintiffs is precluded by the deliberative process or presidential communication privileges, and the Court makes no ruling on those disputes at this point.
While the plaintiffs had argued that dismissing the president was not warranted, Judge Kollar-Kotelly's dismissal has little bearing on the ultimate resolution of the case, a conclusion she reiterated several times. It also has little effect on the present status of the case; the accompanying order emphasized that "The injunction remains in force as it applies to all other Defendants" (italics in original).
Saturday, August 4, 2018
In his opinion in NAACP v. Trump, United States District Judge for the District of Columbia John Bates reaffirmed his earlier decision that the Presidential Order rescinding the DACA program was unlawful. Recall that Judge Bates' decision in April rested on an application of the Administrative Procedure Act (APA) finding that the decision by DHS to rescind DACA, the Deferred Action for Childhood Arrivals program, covering 800,000 people in the United States who are not citizens but who have been residents since childhood, was "arbitrary and capricious" because the Department failed adequately to explain its conclusion that the program was unlawful. Judge Bates stated that "neither the meager legal reasoning nor the assessment of litigation risk provided by DHS to support its rescission decision is sufficient to sustain termination of the DACA program."
Judge Bates stayed the ruling, providing the United States Government 90 days to remedy the inadequacies of its rescission decision. The Government relied on a new Memorandum from Secretary Kirstjen M. Nielsen, but Judge Bates found that while the “Nielsen Memo”
purports to offer further explanation for DHS’s decision to rescind DACA, it fails to elaborate meaningfully on the agency’s primary rationale for its decision: the judgment that the policy was unlawful and unconstitutional. And while the memo offers several additional “policy” grounds for DACA’s rescission, most of these simply repackage legal arguments previously made, and hence are “insufficiently independent from the agency’s evaluation of DACA’s legality” to preclude judicial review or to support the agency’s decision. Finally, the memo does offer what appears to be one bona fide (albeit logically dubious) policy reason for DACA’s rescission, but this reason was articulated nowhere in DHS’s prior explanation for its decision, and therefore cannot support that decision now.
The "bona fide" but "logically dubious" rationale is a sentence in Secretary Nielsen's Memo that expresses a
judgment that DACA’s benefits—whatever they may be—are outweighed by the fact that, in Secretary Nielsen’s view, the policy encourages noncitizen children and their parents to enter the United States illegally. Of course, this rationale is not without its logical difficulties: after all, DACA is available only to those individuals who have lived in the United States since 2007, so the “tens of thousands of minor aliens” who Secretary Nielsen asserts have illegally entered the United States “in recent years” would not even be eligible under the program.
Yet for Judge Bates, this is improperly post-hoc and cannot rescue the DACA rescission from being arbitrary and capricious under the APA.
While other judges have reached the constitutional issues ( Recall that in February Judge Nicholas Garaufis of the Eastern District of New York granted a preliminary injunction against the rescission of DACA and also recall that Judge Alsup of the Northern District of California issued a preliminary injunction in January which the government is appealing), Judge Bates explicitly does not, stating that the decision does not hold "that DHS lacks the statutory or constitutional authority to rescind the DACA program," but only if it does so, it must provide a "rational explanation for its decision" under the APA rather than a "conclusory assertion that a prior policy is illegal, accompanied by a hodgepodge of illogical or post hoc policy assertions."
In an interesting footnote, Judge Bates notes there is an ongoing debates regarding "the propriety of so-called nationwide injunctions," but then states that this "debate is not implicated here" because the court "is vacating an agency action pursuant to the APA, as opposed to enjoining it as a violation of the Constitution or other applicable law. " Judge Bates did continue the stay of the injunction, however, for an additional 20 days to allow the government to appeal.
Friday, August 3, 2018
A group of cities and a couple individuals filed suit yesterday against the Trump Administration, arguing that the Administration's efforts to sabotage the Affordable Care Act violate the Administrative Procedure Act and the Take Care Clause.
The complaint takes aim at the "2019 Rule," a final rule promulgated by the Centers for Medicare and Medicaid Services that "roll[s] back protections that the Act guarantees, make[s] it more difficult to enroll in ACA-compliant plans, and drive[s] up the cost of ACA-compliant plans." The plaintiffs argue the Rule violates the APA, because Administration officials "have failed to provide adequate reasons, and failed to adequately respond to comments, for many provisions of the 2019 Rule, such that they are 'arbitrary' and 'capricious.' In addition, as detailed above, many provisions of the 2019 Rule violate the [ACA], and therefore are not 'in accordance with law.'"
The plaintiffs also challenge various other well publicized Administrative efforts to undermine, sabotage, and eviscerate the Act, and argue that these violate the President's duty to "take care that the laws be faithfully executed."
The plaintiffs argue that they have standing, because the Administration's actions have increased insurance rates caused cities to pay more for uncompensated care.
Check it Out: Tillman and Blackman on Why the Special Counsel may be an Employee (but still invalidly appointed)
For yet a different take on Mueller's constitutionality, check out Seth Barrett Tillman and Josh Blackman's piece on Lawfare, Is Robert Mueller an "Officer of the United States" or an "Employee of the United States?"
They argue that under Lucia, the special counsel is really an "employee," not subject to the Appointments Clause:
The Supreme Court's recent decision in Lucia v. SEC explains that if a federal position is only "temporary," then such a position is likely not an "office of the United States." . . . Therefore, [the special counsel] may not be an "officer of the United States" under the rule in Lucia.
As an employee, they argue, the special counsel is subject to the ordinary appointment requirements for any (non-officer) civil servant.
Still, they argue that there are four reasons to question Mueller's appointment, including that he wasn't appointed pursuant to civil-servant rules, that he may exercises outsized power for an employee, and that his for-cause termination protection runs into Justice Scalia's dissent in Morrison. (On that last point, they say: Lucia may afford a potentially soon-to-be-more-conservative Supreme Court the opportunity to do what Judge Brett Kavanaugh speculated about in 2016: make Justice Scalia's Morrison dissent into a majority opinion.")
Thursday, August 2, 2018
Chief Judge Beryl A. Howell (D.D.C.) rejected a challenge to Special Counsel Robert Mueller's appointment under the Appointments Clause. The ruling, which came in response to a witness's challenge to a grand jury subpoena issued by Mueller, means that the witness--identified by several sources as Andrew Miller, a former associate of Roger Stone--will have to comply with the subpoena.
The ruling aligns with other district court rulings that upheld Mueller's appointment.
Miller challenged a grand jury subpoena issued by Mueller, arguing that Mueller was invalidly appointed under the Appointments Clause. Judge Howell rejected that claim. The court, relying on the factors in Morrison v. Olson, ruled that Mueller was an "inferior officer" and was validly appointed, pursuant to federal statute, by the head of a department. As to Miller's claim that DAG Rod Rosenstein wasn't the "Head of Department" for purposes of the Appointments Clause (because he was the DAG, not the AG), the court said that federal law authorizes the DAG to serve as Acting AG when the AG is recused, and that a different statutory provision allows the AG to delegate to the DAG authority to appoint the Special Counsel.
Wednesday, August 1, 2018
The Ninth Circuit struck another blow today against the administration's anti-sanctuary cities policy, ruling in San Francisco v. Trump that the President can't unilaterally withhold federal grants from sanctuary jurisdictions without Congress's say-so.
The ruling is just the latest in a line of similar rulings, and aligns broadly with the Seventh Circuit's ruling in the spring. This ruling is just a little bit different, however, in that it focuses principally on President Trump's original and sweeping Executive Order (and not AG Sessions's interpretive memo). The court rejects the government's attempt to narrow the test of the EO by focusing instead on AG Sessions's memo as the actual government policy. It said that the memo doesn't align with the EO (and is therefore itself ultra vires), and that in any event it's only a post-hoc justification to get the EO to pass muster in the courts.
While the ruling is an outright win for San Francisco and Santa Clara County, the court threw a bone to the administration by vacating the district court's nationwide injunction and remanding the case for reconsideration and further findings on that issue.
The facts--or at least their general outline--is all too familiar by now: In an effort to clamp down on sanctuary jurisdictions, the President ordered that sanctuary jurisdictions come into line with 8 U.S.C. Sec. 1373, which prohibits state and local jurisdictions from restricting their officers from communicating with federal immigration officials. (Other cases have also involved the "notice" and "access" conditions that AG Sessions purported to put on receipt of a certain federal grant in his memo. Those conditions required jurisdictions to provide notice to federal immigration enforcement officials of any detention, and access to state and local facilities for federal immigration enforcement. This ruling didn't deal with those, because it focused on the EO itself.)
The court simply held that under the separation of powers and Congress's Article I, Section 8, power of the purse, it's for Congress, not the Executive, to put conditions on federal spending. The court said that "because Congress has the exclusive power to spend and has not delegated authority to the Executive to condition new grants on compliance with Section 1373, the President's 'power is at its lowest ebb,'" under Justice Jackson's Youngstown framework. And at the lowest ebb, "[b]ecause the Executive Order directs Executive Branch administrative agencies to withhold funding that Congress has not tied to compliance with Section 1373, there is no reasonable argument that the President has not exceeded his authority." In sum:
Absent congressional authorization, the Administration may not redistribute or withhold properly appropriated funds in order to effectuate its own policy goals. Because Congress did not authorize withholding of funds, the Executive Order violates the constitutional principle of the Separation of Powers.
The court flatly rejected the administration's (pretty incredible) argument that its move to condition funds "is all bluster and no bite, representing a perfectly legitimate use of the presidential 'bully pulpit,' without any real meaning . . . .":
[E]ven if we ignore the statements made by and on behalf of the Administration outside the context of this litigation, the Administration's interpretation of the Executive Order strains credulity. And consideration of those statements suggests that the Administration's current litigation position is grounded not in the text of the Executive Order but in a desire to avoid legal consequences.
(Interestingly, the court said nothing about the constitutionality of Section 1373 itself. That provision is now questionable, in light of Murphy v. NCAA, as a possible "commandeering" of state governments in violation of the anti-commandeering principle. Judge Fernandez, in dissent, distinguished Murphy in a footnote by saying that the Court's articulated "principles behind the anticommnadeering rule" don't apply to Section 1373. But it's not clear how the plain ruling itself doesn't apply to Section 1373. More to come on this, I'm sure.)
The court then vacated the district court's nationwide injunction, because "the present record does not support a nationwide injunction." The court remanded "for a more searching inquiry into whether this case justifies the breadth of the injunction imposed."
(Along the way, the court also ruled that the plaintiffs had standing and that the case was ripe for judicial review.)
Judge Fernandez dissented, arguing that the case wasn't ripe and, in any event, that the EO was constitutional, because, by its plain terms, it only applies "to the fullest extent of the law."
Wednesday, July 25, 2018
Court Says Maryland, D.C. Plausibly Alleged Emoluments Claims Against President, Case Can Go Forward
Judge Peter J. Messitte (D. Md.) ruled today that Maryland and D.C. sufficiently alleged emoluments claims against President Trump. The court denied the President's motion to dismiss the case, and will allow the case to move forward.
Recall that Maryland and D.C. sued President Trump for violations of the Foreign and Domestic Emoluments Clauses for payments by foreign and federal and state governments in connection with the President and the Trump Organization's ownership of the Trump International Hotel on Pennsylvania Avenue. The President moved to dismiss for failure to state a claim, arguing that indirect and direct payments to him aren't "emoluments." The court disagreed.
President Trump's motion required the court to define "emolument": Is it a broad term that could encompass the direct and indirect benefits that President Trump receives from his hotel (as the plaintiffs would have it), or is it much narrower, only prohibiting particular kinds of additional, outside compensation for the President? But before the court came to that question, it took a beat to broadly explain its options for constitutional interpretation. The court concluded that it should use text, original public meaning and executive branch practice as precedent to sort it out.
The court said that the text favored the broad interpretation of the term offered by the plaintiffs (and not the much narrower definition offered by the President):
As Plaintiffs point out, the Foreign Clause bans, without Congressional approval, "any present, Emolument, Office, or Title, of any kind whatever . . . . Use of such expansive modifiers significantly undermines the President's argument that this Clause was meant to prohibit only payment for official services rendered in an employment-type relationship. . . .
The phrase "any other Emolument" in the Domestic Emoluments Clause suggests the same broad interpretation of the term.
As to original public meaning, the court said that "[t]he clear weight of the evidence shows that an 'emolument' was commonly understood by the founding generation to encompass any 'profit,' 'gain,' or 'advantage,'" not limited to particular kinds of salary supplements. "Though the Court agreed that mere counting of dictionaries may not be dispositive, is nonetheless remains highly remarkable that "every English dictionary definition of 'emolument' from 1604 to 1806 relies on one or more of the elements of the broad definition DOJ rejects in its brief."
As to purpose, the court said that it "does not see how the historical record reflects anything other than an intention that the Emoluments Clauses function as broad anti-corruption provisions," and not a more limited purpose that would simply prohibit the President from receiving only "specifically identified categories of compensation."
Finally, the court said that executive branch precedent and practice also--and "overwhelmingly"--pointed toward a broad definition of "emoluments."
With respect to the Foreign Emoluments Clause, Plaintiffs have alleged that foreign governments or their instrumentalities have patronized the Trump International Hotel, spending government funds to stay at the Hotel, eat at its restaurant, and sponsor events in the Hotel's event spaces. They have done so in some cases with the express intention to cater to the good graces of the President. . . .
[Plaintiffs plausibly plead] that the GSA's abrupt about-face position [first concluding that the President was, and later that the President was not, in violation of his GSA lease for failing to divest] was and is in direct contradiction of the plain terms of the Lease and that, by determining that the Hotel was and is in compliance with the Lease, the Federal Government bestowed upon the President an emolument in violation of the Domestic Emoluments Clause.
In addition to foreign governments patronizing the Hotel, Plaintiffs claim that at least one State--Maine--has patronized the Hotel, spending state funds for its Governor and his entourage to stay at the Hotel and to frequent its facilities during an official visit of those officials to Washington, including an encounter with the President where Presidential action of interest to the Governor good place.
[Plaintiffs plausibly plead] that, in connection with the Hotel, the President has received substantial tax concessions from the District of Columbia.
The court's ruling went to the President acting in his official capacity, not individual capacity. "The Court will address the President's Motion to Dismiss the individual capacity claims against him in a subsequent Opinion."
Before the court ruled on President Trump's motion, it took on Prof. Seth Barrett Tillman's argument that the Foreign Emoluments Clause doesn't extend to the President. The court said that the text, the original public meaning and purpose, and executive branch precedent and practice all point to the conclusion that the Clause does apply to the President.
Monday, July 16, 2018
Check out Jonathan Adler's piece at the NYT, Will Kavanaugh Curb Sloppy White House Deregulation? Adler argues that Judge Kavanaugh "has expressed concerns about the Chevron doctrine," and "is not one to give [agencies] a pass." Still, Adler argues that "Judge Kavanaugh's concern about overbroad applications of Chevron should not be misinterpreted as hostility to regulation."
Thursday, July 12, 2018
President Trump issued an executive order earlier this week that created a new hiring process for administrative law judges, excepting them from competitive hiring rules and examinations and authorizing their appointments to the newly created "Schedule E" of the excepted service by department heads. (H/t to conlaw student Sahil Malhotra.)
The move abolishes the centralized process currently in place for the competitive selection of ALJs and places their appointments in department heads. The move has been criticized because it could politicize the appointments of ALJs, and thus politicize their work.
The EO says that the move is in response to the Supreme Court's recent ruling in Lucia. Recall that the Court held that SEC ALJs aren't mere employees, but instead are "officers" subject to the Appointments Clause. This means that they need to be appointed by the President or the department head (or the courts). It doesn't (necessarily) mean that they need to be excepted from competitive hiring altogether, though. Still, the EO appears to take the position that competitive hiring might be a violation of the Appointments Clause, and, for that reason, excepts ALJs from competitive hiring altogether. From the EO:
As evident from recent litigation, Lucia may also raise questions about the method of appointing ALJs, including whether competitive examination and competitive selection procedures are compatible with the discretion an agency head must possess under the Appointments Clause in selecting ALJs. Regardless of whether those procedures would violate the Appointments Clause as applied to certain ALJs, there are sound policy reasons to take steps to eliminate doubt regarding the constitutionality of the method of appointing officials who discharge such significant duties and exercise such significant discretion.
The EO applies Lucia to all ALJs across the Executive Branch, even though Lucia doesn't necessarily reach that far (which the EO itself recognizes). (Lucia was based on the roles and functions of SEC ALJs, which may be different than other agencies' ALJs.)
The EO doesn't apply to current ALJs. Under Lucia, some or all of these will require re-appointment by their agency head--again, depending on how similar they are to the SEC ALJs in Lucia (an question that agencies are currently working out). And notably the EO only changes ALJs' appointment, not their removal.
Wednesday, July 4, 2018
Saturday, June 30, 2018
Check out Victoria Nourse's American Constitution Society Issue Brief on The Special Counsel, Morrison v. Olson, and the Dangerous Implications of the Unitary Executive Theory.
The unitary executive theory is dangerous. . . . Once taken from the law journals and legal societies and handed to political agents, [it] appears to grant presidents license to dismiss the law, all based on a lonely dissent.
Friday, June 29, 2018
Judge T.S. Ellis III (E.D. Va.) earlier this week rejected a motion by Paul Manafort to dismiss Special Counsel Robert Mueller's superseding indictment for bank fraud and tax charges.
Recall that Judge Berman Jackson (D.D.C.) earlier rejected a similar move by Manafort. The D.C. court's earlier ruling came in Manafort's civil challenge to Mueller's authority. In contrast, Judge Ellis's ruling this week came as a defense in Manafort's criminal case.
Judge Ellis ruled that the superseding indictment fell squarely within DOJ special-counsel regulations and Rod Rosenstein's memo authorizing Mueller's investigation and prosecution.
Judge Ellis also ruled that Mueller's appointment was valid, and that he had legal authority to issue the indictment. (This analysis came in response to Manafort's argument that Manafort had standing to challenge Mueller's indictment, notwithstanding the fact that DOJ regs specifically do not "create any rights . . . by any person . . . in any matter, civil, criminal, or administrative," based on the theory that Mueller lacks legal authority.)
The Special Counsel's legal authority is not grounded in the procedural regulations at issue here, but in the Constitution and in the statutes that vest the authority to conduct criminal litigation in the Attorney General and authorize the Attorney General to delegate these functions when necessary. And because the Special Counsel was appointed in a manner consistent with both these sources of legal authority, there is no basis for dismissal of the Superseding Indictment.
Along the way, Judge Ellis gave something of a (often highly critical) tutorial in the constitutional issues--Appointments Clause and separation of powers--involved in independent counsel and special counsel authorities, offering some scathing comments about the design of the special counsel office (though not about Mueller in particular). Here's just a flavor:
The Constitution's system of checks and balances, reflected to some extent in the regulations at issue, are designed to ensure that no single individual or branch of government has plenary or absolute power. The appointment of special prosecutors has the potential to disrupt these checks and balances, and to inject a level of toxic partisanship into the investigation of matters of public importance. This case is a reminder that ultimately, our system of checks and balances and limitations on each branch's powers, although exquisitely designed, ultimately works only if people of virtue, sensitivity, and courage, not affected by the winds of public opinion, choose to work within the confines of the Law. Let us hope that the people in charge of this prosecution, including the Special Counsel and the Assistant Attorney General, are such people. Although this case will continue, those involved should be sensitive to the danger unleashed when political disagreements are transformed into partisan prosecutions.
Thursday, June 28, 2018
The Seventh Circuit earlier this week narrowed the nationwide injunction against AG Sessions's crackdown on Chicago's sanctuary-cities practices so that it now only applies "as to the imposition of the conditions on the City of Chicago," and not the "geographic areas in the United States beyond the City of Chicago pending the disposition of the case by the en banc court."
The ruling means that the injunction now applies only to Chicago, and not nationwide.
The ruling gave no reasons for restricting the injunction. Recall that on Tuesday, in the travel ban case, the Court declined to address the issue of whether a lower court can issue a nationwide injunction. (It didn't have to rule on this, because it upheld the travel ban.)
Wednesday, June 27, 2018
In an opinion and order in Ms. L. v. United States Immigration and Enforcement (ICE), United States District Judge Dana Sabraw has found that the current Administration policies regarding separation of parents and children and reunification likely violate due process meriting a preliminary injunction.
Recall that in early June, Judge Sabraw denied a motion to dismiss in the same case finding that that there was sufficient claim of a due process violation, applying the "shocks the conscience" test.
This opinion reasserts that conclusion:
This practice of separating class members from their minor children, and failing to reunify class members with those children, without any showing the parent is unfit or presents a danger to the child is sufficient to find Plaintiffs have a likelihood of success on their due process claim. When combined with the manner in which that practice is being implemented, e.g., the lack of any effective procedures or protocols for notifying the parents about their childrens’ whereabouts or ensuring communication between the parents and children, and the use of the children as tools in the parents’ criminal and immigration proceedings, a finding of likelihood of success is assured. A practice of this sort implemented in this way is likely to be “so egregious, so outrageous, that it may fairly be said to shock the contemporary conscience,” interferes with rights “‘implicit in the concept of ordered liberty[,]’” Rochin v. Cal., 342 U.S. 165, 169 (1952) (quoting Palko v. State of Conn., 302 U.S. 319, 325 (1937)), and is so “‘brutal’ and ‘offensive’ that it [does] not comport with traditional ideas of fair play and decency.” Breithaupt v. Abram, 352 U.S. 432, 435 (1957).
Judge Sabraw relied on the fact of separation and the government's failure to have a reunification plan, despite the June 23 Administration "Fact Sheet," that addressed not only removal but also"reunification for other purposes, such as immigration or asylum proceedings, which can take months." He stated that there was
no genuine dispute that the Government was not prepared to accommodate the mass influx of separated children. Measures were not in place to provide for communication between governmental agencies responsible for detaining parents and those responsible for housing children, or to provide for ready communication between separated parents and children. There was no reunification plan in place, and families have been separated for months.
Judge Sabraw's opinion clearly rests on the substantive due process claim violated by the governmental family separation policy, but also sounds in procedural due process:
the practice of separating these families was implemented without any effective system or procedure for (1) tracking the children after they were separated from their parents, (2) enabling communication between the parents and their children after separation, and (3) reuniting the parents and children after the parents are returned to immigration custody following completion of their criminal sentence. This is a startling reality. The government readily keeps track of personal property of detainees in criminal and immigration proceedings. Money, important documents, and automobiles, to name a few, are routinely catalogued, stored, tracked and produced upon a detainees’ release, at all levels—state and federal, citizen and alien. Yet, the government has no system in place to keep track of, provide effective communication with, and promptly produce alien children. The unfortunate reality is that under the present system migrant children are not accounted for with the same efficiency and accuracy as property. Certainly, that cannot satisfy the requirements of due process. See Santosky v. Kramer, 455 U.S. 745, 758-59 (1982) (quoting Lassiter v. Dept. of Soc. Services of Durham County, N.C., 452 U.S. 18, (1981)) (stating it is “‘plain beyond the need for multiple citation’ that a natural parent’s ‘desire for and right to the companionship, care, custody, and management of his or her children’ is an interest far more precious than any property right.”) (internal quotation marks omitted).
Judge Sabraw found that the government's procedures which place "the burden on the parents to find and request reunification with their children under the circumstances presented here is backwards," and that under the present circumstances, "the Government has an affirmative obligation to track and promptly reunify these family members."