Monday, December 11, 2017
A third district judge has issued a preliminary injunction against the President's ban on transgender troops in the military. In her opinion in Karnoski v. Trump, United States District Judge Marsha Pechman of the Western District of Washington issued a preliminary injunction on the basis of the plaintiffs' likelihood to succeed on the merits of their Equal Protection, Due Process, and First Amendment claims.
Recall that after several tweets this past July, embedded 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." Recall that in October, United States District Judge for the District of Columbia Colleen Kollar-Kotelly in Doe v. Trump partially enjoined the president's actions denying the motion for preliminary injunction regarding the Sex Reassignment Directive based on a lack of standing and granting the motion for preliminary injunction regarding the Accession and Retention Directives. Recall that in November, United States District Judge Marvin Garvis of the District of Maryland in Stone v. Trump issued a preliminary injunction against the United States military's ban on transgender troops and resources for "sex-reassignment" medical procedures.
In Karnoski, Judge Pechman finds that the individual plaintiffs, the organizational plaintiffs, and the State of Washington all have standing to challenge the Presidential Memorandum and that the claims are ripe. She does grant the motion to dismiss as to the procedural due process claim.
On the merits, Judge Karnoski's analysis is succinct. She concludes that the policy "distinguishes on the basis of transgender status, a quasi-suspect classification, and is therefore subject to intermediate scrutiny." She then states that while the government defendants "identify important governmental interest including military effectiveness, unit cohesion, and preservation of military resources, they failed to show that the policy prohibiting transgender individuals from serving openly is related to the achievements of those interests." Indeed, she concludes, the reasons proffered by the President are actually contradicted by the studies, conclusions, and judgment of the military itself," quoting and citing Doe v. Trump.
Departing from the earlier cases, Judge Pechman also finds the plaintiffs have a likelihood of success on a substantive due process claim based on a fundamental liberty interest:
The policy directly interferes with Plaintiffs' ability to define and express their gender identity, and penalizes plaintiffs for exercising their fundamental right to do so openly by depriving them of employment and career opportunities.
On the First Amendment claim, Judge Pechman concludes that the "policy penalizes transgender service members but not others for disclosing their gender identity, and is therefore a content based restriction."
She then quickly finds that on balance, the equities weigh in favor of the preliminary injunction.
With this third court finding the Presidential Memorandum has constitutional deficiencies, the transgender ban is unlikely to go into effect by January 1. Additionally, the Pentagon has reportedly announced that the ban will not take effect.
Friday, December 8, 2017
WaPo's Can He Do That? podcast takes on this question, in light of John Dowd's statement earlier this week that the "president cannot obstruct justice because he is the chief law enforcement officer . . . and has every right to express his view of any case." Check it out.
Wednesday, November 29, 2017
U.S. District Judge Timothy J. Kelly (D.D.C.) ruled in favor of the President in the ongoing dispute over who is acting director of the Consumer Financial Protection Bureau. We last posted here; WaPo has a story here.
Judge Kelly ruled from the bench against Leandra English, the CFPB deputy director, and declined to unseat Mick Mulvaney, President Trump's appointee.
This is hardly the final say in the matter. We'll post on any written decision when it's released.
Monday, November 27, 2017
As has been widely reported, two acting directors of the Consumer Financial Protection Bureau showed up for work today. One told employees to ignore the other; the other sued. (Politico reports on the confusion at the Bureau here.)
Leandra English, the former deputy director appointed by outgoing Director Richard Cordray, was in line for the job under a Dodd-Frank provision that says that the deputy director becomes acting when the director leaves. But Mick Mulvaney was also in line for the job after President Trump appointed him pursuant to the Federal Vacancies Reform Act. We outlined the competing appointment provisions in a post yesterday. OLC came down on the President's side; so did the CFPB general counsel (who was appointed by Cordray)--and for the same reasons as the OLC.
English sued in the D.C. District Court seeking declaratory and injunctive relief. Here's the gist of her argument:
The President apparently believes that he has authority to appoint Mr. Mulvaney under the Federal Vacancies Reform Act of 1988. But the Vacancies Act, by its own terms, does not apply where another statute "expressly . . . designates an officer or employee to perform the functions and duties of a specified office temporarily in an acting capacity"--which is exactly what the Dodd-Frank Act does. The President's interpretation of the FVRA runs contrary to Dodd-Frank's later-enacted, more specific, and mandatory text. The President's stance is also difficult to square with the relevant legislative history: An earlier version of the Dodd-Frank Act, which would have specifically allowed the President to use the Vacancies Act to temporarily fill the office, was eliminated and replaced with the current language designating the Deputy Director as the Acting Director. And the President's attempt to appoint a still-serving White House staffer to displace the acting head of an independent agency is contrary to the overall design and independence of the Bureau.
Saturday, November 25, 2017
The Office of Legal Counsel issued a memo on Saturday concluding that the President had authority to appoint OMB Director Mick Mulvaney as acting head of the Consumer Financial Protection Bureau, even though the CFPB chain-of-succession says that CFPB Deputy Director Leandra English should take over the job.
The opinion, while significant, is not binding on the courts, where this dispute will inevitably be resolved.
The dispute pits two appointment authorities against each other. On the one hand, the CFPB statute says that the CFPB Deputy Director shall "serve as acting Director in the absence or unavailability of the Director." This means that English, the acting Deputy, should get the job. (Richard Cordray, the former Director, appointed English as acting Deputy shortly before he resigned on Friday.) But on the other hand, the Federal Vacancies Reform Act gives the President authority to "temporarily authoriz[e] an acting official to perform the functions and duties" of an officer of an Executive agency whose appointment "is required to be made by the President, by and with the advice and consent of the Senate." This means that Mulvaney should get the nod.
So who wins? OLC says the President does.
The Federal Vacancies Reform Act says that its process shall be the "exclusive means" for authorizing acting service "unless" another statute expressly designates an officer to serve as acting. The CFPB statute does just that. But according to OLC, this doesn't mean that the CFPB statute prevails; it simply means that both the CFPB statute and the Federal Vacancies Reform Act provide available methods for appointment:
By its terms, [the Vacancies Reform Act says that it] shall be the "exclusive means" of filling vacancies on an acting basis unless another statute "expressly" provides a mechanism for acting service. It does not follow, however, that when another statute applies, the Vacancies Reform Act ceases to be available. To the contrary, in calling the Vacancies Reform Act the "exclusive means" for designations "unless" there is another applicable statute, Congress has recognized that there will be cases where the Vacancies Reform Act is non-exclusive, i.e., one available option, together with the office-specific statute.
But even so, how do we know the President wins? According to OLC,
as with other office-specific statutes, when the President designates an individual under the Vacancies Reform Act outside the ordinary order of succession, the President's designation necessarily controls. Otherwise, the Vacancies Reform Act would not remain available as an actual alternative in instances where the office-specific statute identifies an order of succession, contrary to Congress's stated intent.
Finally, because Congress didn't include the CFPB Director in the statutory carve-outs to the Vacancies Reform Act for other independent agencies, OLC concluded that it's subject to that Act, even though Congress designed it as independent. That's because the carve-outs refer to multi-member boards (which the CFPB is not) and other specified agencies (not including the CFPB).
Tuesday, November 21, 2017
In his opinion in Stone v. Trump, United States District Judge Marvin Garvis of the District of Maryland isued a preliminary injunction against the United States military's ban on transgender troops and resources for "sex-reassignment" medical procedures.
Recall that after several tweets this past July (which Judge Garvis embeds in the opinion), 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."
Recall also that last month in Doe v. Trump, United States District Judge for the District of Columbia Colleen Kollar-Kotelly partially enjoined the president's actions denying the motion for preliminary injunction regarding the Sex Reassignment Directive based on a lack of standing and granting the motion for preliminary injunction regarding the Accession and Retention Directives.
Judge Garvis has ordered a complete preliminary injunction. Unlike Judge Kollar-Kotelly in Doe, Judge Garvis found that several plaintiffs in Stone had standing regarding the Sex Reassignment Directive which takes effect March 23. Specifically, Judge Garvis found that it highly unlikely that plaintiffs Stone and Cole would be able to complete their medical plan before that date and that it was "at the very least plausible" that any policy exceptions would be applied to their scheduled post-March-23rd surgeries.
As for the merits, and the likelihood of success, Judge Garvis agreed with Doe. Judge Garvis discussed the Fifth Amendment protection of equal protection as applied to the military and found reason not to apply military deference, specifically mentioning the presidential tweets:
There is no doubt that the Directives in the President’s Memorandum set apart transgender service members to be treated differently from all other military service members. Defendants argue that deference is owed to military personnel decisions and to the military’s policymaking process. The Court does not disagree. However, the Court takes note of the Amici of retired military officers and former national security officials, who state “this is not a case where deference is warranted, in light of the absence of any considered military policymaking process, and the sharp departure from decades of precedent on the approach of the U.S. military to major personnel policy changes.” President Trump’s tweets did not emerge from a policy review, nor did the Presidential Memorandum identify any policymaking process or evidence demonstrating that the revocation of transgender rights was necessary for any legitimate national interest. Based on the circumstances surrounding the President’s announcement and the departure from normal procedure, the Court agrees with the D.C. Court that there is sufficient support for Plaintiffs’ claims that “the decision to exclude transgender individuals was not driven by genuine concerns regarding military efficacy.”
Similarly and succinctly, Judge Garvis found an equal protection violation:
The Court finds persuasive the D.C. Court’s reasons for applying intermediate scrutiny: transgender individuals appear to satisfy the criteria of at least a quasi-suspect classification, and the Directives are a form of discrimination on the basis of gender. The Court also adopts the D.C. Court’s reasoning in the application of intermediate scrutiny to the Directives and finds that the Plaintiffs herein are likely to succeed on their Equal Protection claim.
However, Judge Garvis also based the equal protection violation on a finding of failure to satisfy "rational basis" (or perhaps rational basis "with bite") review:
Moreover, the Court finds that, based on the exhibits and declarations currently on the record, the Directives are unlikely to survive a rational review. The lack of any justification for the abrupt policy change, combined with the discriminatory impact to a group of our military service members who have served our country capably and honorably, cannot possibly constitute a legitimate governmental interest. See U. S. Dep’t of Agric. v. Moreno, 413 U.S. 528, 534 (1973).
Thus, the Trump Administration now has two district judge opinions to appeal should it desire to pursue its new policies limiting transgender service members.
Judge William H. Orrick (N.D.Cal.) granted summary judgment for the plaintiffs and issued a nationwide permanent injunction against the defunding and enforcement provisions of President Trump's sanctuary cities executive order.
The ruling deals a serious blow to the President and his efforts to rein in sanctuary cities. This ruling goes to the EO itself, not AG Sessions's interpretation and enforcement of the EO, as the more recent temporary injunctions did. We posted most recently on the case in Philadelphia here.
Judge Orrick noted that nothing had changed from his earlier temporary injunction. He summarized his ruling this way:
The Constitution vests the spending powers in Congress, not the President, so the Executive Order cannot constitutionally place new conditions on federal funds. Further, the Tenth Amendment requires that conditions on federal funds be unambiguous and timely made; that they bear some relation to the funds at issue; and that they not be unduly coercive. Federal funding that bears no meaningful relationship to immigration enforcement cannot be threatened merely because a jurisdiction chooses an immigration enforcement strategy of which the President disapproves. Because the Executive Order violates the separation of powers doctrine and deprives the Counties of their Tenth and Fifth Amendment rights, I GRANT the Counties' motions for summary judgment and permanently enjoin the defunding and enforcement provisions of Section 9(a).
Recall that Section 9(a) says that "[i]n furtherance of [the policy to ensure that states and their subdivisions comply with 8 U.S.C. Sec. 1373], the [AG] and the Secretary [of Homeland Security] . . . shall ensure that jurisdictions that willfully refuse to comply with 8 U.S.C. Sec. 1373 (sanctuary jurisdictions) are not eligible to receive Federal grants, except as deemed necessary for law enforcement purposes . . . ." Importantly, the EO didn't specify which federal grants were at risk; it apparently applied to all federal grants.
AG Sessions tried to restrict the EO to JAG/Byrne grants from the Justice Department, but Judge Orrick had nothing of it: "The AG Memorandum not only provides an implausible interpretation of Section 9(a) but is functionally an 'illusory promise' because it does not amend Section 9(a) and does not bind the Executive Branch. It does not change the plain meaning of the Executive Order."
Judge Orrick said that a nationwide injunction was appropriate "[b]ecause Section 9(a) is unconstitutional on its face, and not simply in its application to the plaintiffs here . . . ."
Thursday, November 16, 2017
Judge Michael Baylson (E.D. Pa.) granted a preliminary injunction yesterday against the government's enforcement of it's anti-sanctuary cities moves against Philadelphia, and enjoyed AG Sessions from denying the city's Byrne JAG grant for FY 2017.
The ruling is a major victory for the city, and a significant strike against the federal crack-down on sanctuary cities. It follows a similar, but less sweeping, ruling in the Chicago case.
Judge Baylson ruled that AG Sessions's order to condition DOJ Byrne JAG grants on Philadelphia's agreement to give federal authorities notice when city officials detain an unauthorized alien (the "notice condition"), to give federal authorities access to city jails (the "access condition"), and to certify that it complies with 8 U.S.C. Sec. 1373 likely violate federal law and the Constitution.
In particular, Judge Baylson ruled that the conditions violate the Administrative Procedure Act, because they're arbitrary and capricious. He also ruled that they "are improper under settled principles of the Spending Clause, the Tenth Amendment, and principles of federalism." On the constitutional issues, he said that the conditions are not sufficiently related to the purposes of the Byrne JAG grant program (in violation of the conditioned-spending test under South Dakota v. Dole), because "[i]mmigration law [the purpose of the conditions] has nothing to do with the enforcement of local criminal laws [the purpose of Philadelphia's Byrne JAG grant]." He also said that the conditions were ambiguous (also in violation of South Dakota v. Dole), because "the Access and 48-hours Notice Conditions cannot have been unambiguously authorized by Congress if they were never statutorily authorized," and the "malleable language [of Section 1373] does not provide the 'clear notice that would be needed to attach such a condition to a State's receipt of . . . funds.'" (The court also said, but "[w]ithout specifically so holding," that "Philadelphia is likely to succeed on the merits of its Tenth Amendment challenge" to the conditions, because the notice and access conditions "impose affirmative obligations on Philadelphia, with associated costs of complying with such conditions," and because the compliance condition (on 1373) "would inherently prevent Philadelphia from, among other things, disciplining an employee for choosing to spend her free time or work time assisting in the enforcement of federal immigration laws" (and thus commandeers the city).
Finally, Judge Baylson noted that Philadelphia isn't a sanctuary city, anyway--at least not in the way defined by federal law. In particular, he wrote that the city "substantially complies with Section 1373."
Monday, October 30, 2017
In an Order and Opinion in Doe v. Trump, United States District Judge for the District of Columbia Colleen Kollar-Kotelly partially enjoined the president's actions to limits the service of transgender persons in the United States military. Judge Kollar-Kelly denied the motion for preliminary injunction regarding the Sex Reassignment Directive, but granted the motion for preliminary injunction regarding the Accession and Retention Directives.
Recall that this lawsuit, filed by lawyers for the National Center for Lesbian Rights (NCLR) and GLBTQ Legal Advocates and Defenders (GLAD) is one of several complaints challenging the president's military action, and included claims for a violation of equal protection, due process, and a nonconstitutional argument of equitable estoppel.
Judge Kollar-Kotelly's 76 page opinion, which begins with a recitation of the President's "statement via Twitter" on July 26, 2017, announcing that “the United States Government will not accept or allow transgender individuals to serve in any capacity in the U.S. Military.” This was followed almost a month later by the President's Memorandum for the Secretary of Defense and Secretary of Homeland Security through the Office of the Press Secretary directing the halt of accession of transgender individuals into the military and the halt of all resources "to fund sex-reassignment surgical procedures for military personnel, except to the extent necessary to protect the health of an individual who has already begun a course of treatment to reassign his or her sex." The President's Twitter statement and the subsequent Presidential memorandum are the centerpiece of the Government's argument that the plaintiffs lack standing and that their claims are not ripe under Article III.
Judge Kollar-Kotelly wrote:
Defendants have moved to dismiss this case, principally on the basis that the Court lacks jurisdiction. Although highly technical, these jurisdictional arguments reduce to a few simple points: the Presidential Memorandum has not effected a definitive change in military policy; rather, that policy is still subject to review; until that review is complete, transgender service members are protected; and any prospective injuries are too speculative to require judicial intervention.
These arguments, while perhaps compelling in the abstract, wither away under scrutiny.
Judge Kollar-Kotelly's opinion then spends the majority of the opinion discussing the standing and ripeness issues. As to the Surgery challenge, the opinion concludes that "none of the Plaintiffs have demonstrated an injury in fact with respect to the Sex Reassignment Surgery Directive," because none of the "Plaintiffs have demonstrated that they are substantially likely to be impacted by the Sex Reassignment Surgery Directive" In fact, the plaintiffs' medical procedures would be performed. However, there was standing on the Accession and Retention Directives because although an Interim Guidance possibly protects some transgender service members and allows for waivers,
The President controls the United States military. The directives of the Presidential Memorandum, to the extent they are definitive, are the operative policy toward military service by transgender service members.
Moreover, "the injury in fact element of standing in an equal protection case is the denial of equal treatment resulting from the imposition of the barrier.”
Compared to the extensive analysis of the Article III issues, Judge Kollar-Ketelly's analysis of the equal protection claim based on the Fifth Amendment is much more succinct. The opinion first determines the level of scrutiny, deciding on intermediate scrutiny for two reasons.
First, "on the current record, transgender individuals—who are alone targeted for exclusion by the Accession and Retention Directives—appear to satisfy the criteria of at least a quasi-suspect classification," considering whether they have "experienced a ‘history of purposeful unequal treatment’ or been subjected to unique disabilities on the basis of stereotyped characteristics not truly indicative of their abilities," and whether they have been as a group “relegated to such a position of political powerlessness as to command extraordinary protection from the majoritarian political process," and whether the group “exhibit[s] obvious, immutable, or distinguishing characteristics that define them as a discrete group.” Judge Kollar-Ketelly found that transgendered people satisfied these criteria, noting that although there was no binding precedent on this issue, other courts had reached similar conclusions and citing Evancho v. Pine-Richland Sch. Dist.
Second, Judge Kollar-Ketelly was "also persuaded that the Accession and Retention Directives are a form of discrimination on the basis of gender, which is itself subject to intermediate scrutiny. It is well-established that gender-based discrimination includes discrimination based on non- conformity with gender stereotypes."
In the application of intermediate scrutiny, Judge Kollar-Ketelly recited the rule of United States v. Virginia (VMI) (1996), and held that the Accession and Retention Directives relied on overbroad stereotypes and were not substantially related to the Government's stated interests. The opinion then considered the question of deference in the military context:
Nonetheless, given the deference owed to military personnel decisions, the Court has not based its conclusion solely on the speculative and overbroad nature of the President’s reasons. A second point is also crucial. As far as the Court is aware at this preliminary stage, all of the reasons proffered by the President for excluding transgender individuals from the military in this case were not merely unsupported, but were actually contradicted by the studies, conclusions and judgment of the military itself. As described above, the effect of transgender individuals serving in the military had been studied by the military immediately prior to the issuance of the Presidential Memorandum. In connection with the working group chaired by the Under Secretary of Defense for Personnel and Readiness, the RAND National Defense Research Institute conducted a study and issued a report largely debunking any potential concerns about unit cohesion, military readiness, deployability or health care costs related to transgender military service. The Department of Defense Working Group, made up of senior uniformed officers and senior civilian officers from each military department, unanimously concluded that there were no barriers that should prevent transgender individuals from serving in the military, rejecting the very concerns supposedly underlying the Accession and Retention Directives. In fact, the Working Group concluded that prohibiting transgender service members would undermine military effectiveness and readiness. Next, the Army, Air Force and Navy each concluded that transgender individuals should be allowed to serve. Finally, the Secretary of Defense concluded that the needs of the military were best served by allowing transgender individuals to openly serve. In short, the military concerns purportedly underlying the President’s decision had been studied and rejected by the military itself. This highly unusual situation is further evidence that the reasons offered for the Accession and Retention Directives were not substantially related to the military interests the Presidential Memorandum cited.
the President abruptly announced, via Twitter—without any of the formality or deliberative processes that generally accompany the development and announcement of major policy changes that will gravely affect the lives of many Americans—that all transgender individuals would be precluded from participating in the military in any capacity. These circumstances provide additional support for Plaintiffs’ claim that the decision to exclude transgender individuals was not driven by genuine concerns regarding military efficacy.
Finding a likelihood of success on the merits of the equal protection claim, the opinion quickly dispatched the other considerations used in evaluating the issuance of a preliminary injunction, finding them met.
Expect the government to appeal as well as opinions in the other pending cases.
Wednesday, October 25, 2017
Judge Vince Chhabria (N.D. Cal.) today denied the states' motion for a preliminary injunction in the their case against the Trump administration for halting cost-sharing reduction ("CSR") payments to insurance companies on the Obamacare exchanges. We posted on the complaint here.
Judge Chhabria ruled that the plaintiff-states did not demonstrate a likelihood of success on the merits, because Congress didn't appropriate funds for the CSRs, even though the ACA requires that the government pay them:
In sum, the [ACA] requires the federal government to pay insurance companies to cover the cost-sharing reductions. The federal government is failing to meet that obligation. If there was no permanent appropriation in the Act, Congress is to blame for the failure, because it has not been making annual appropriations for CSR payments. The Administration cannot fix Congress's error, because the Constitution prevents the Administration from making payments on its own. In contrast, if the Act created a permanent appropriation, the Administration is legally at fault for the federal government's failure to meet its obligation under the Act to make CSR payments. On the merits, it's a close and complicated question, even if the Administration may seem to have the better argument at this stage.
As to the other preliminary injunction factors, Judge Chhabria noted that most of the states in the lawsuit have taken measures with the insurance companies to offset the impact of the administration's decision not to pay CSRs to the consumers. States did this by encouraging insurance companies to increase premiums in certain plans so that consumers would qualify for higher premium tax credits (which, unlike the CSRs, have a permanent appropriation under the ACA). For most consumers, the court said, the higher premium tax credits would well offset any harm based on the administration's decision not to pay CSRs.
The ruling means that the court won't require the administration to make CSR payments, at least for now.
Tuesday, October 24, 2017
In an Order today the Court brought the litigation in Hawai'i v. Trump on Muslim Ban/Travel ban 2.0 to a close. The Order provides:
We granted certiorari in this case to resolve a challenge to the temporary suspension of entry of aliens and refugees under Section 2(c) and Section 6 of Executive Order No. 13,780. Because those provisions of the Order have “expired by [their] own terms,” the appeal no longer presents a “live case or controversy.” Burke v. Barnes, 479 U. S. 361, 363 (1987). Following our established practice in such cases, the judgment is therefore vacated, and the case is remanded to the United States Court of Appeals for the Ninth Circuit with instructions to dismiss as moot the challenge to Executive Order No. 13,780. United States v. Munsingwear, Inc., 340 U. S. 36, 39 (1950). We express no view on the merits.
Justice Sotomayor dissents from the order vacating the judgment below and would dismiss the writ of certiorari as improvidently granted.
This Order replicates the Court's previous dismissal in IRAP v. Trump on October 10.
This does not end litigation on the issues.
Recall that so-called Muslim Ban/Travel Ban 2.0 has been replaced by so-called Muslim Ban/Travel Ban 3.0, Presidential Proclamation 9645, entitled “Enhancing Vetting Capabilities and Processes for Detecting Attempted Entry Into the United States by Terrorists or Other Public-Safety Threats”of September 24, 2017. Like the previous iterations, this has been enjoined by federal judges in Hawai'i (Hawai'i v. Trump) and in Maryland (IRAP v. Trump).
Wednesday, October 18, 2017
Check out Prof. Abbe Gluck's piece at Vox setting out the case that President Trump is violating the Take Care Clause by purposefully undermining Obamacare (which, after all, is still federal law).
We posted on the states' case against President Trump for dropping the cost-sharing reduction payments to insurance companies. The complaint cites the myriad ways that the President is actively undermining the ACA (and thus violating the Take Care Clause), but only seeks relief with regard to the CSRs. Gluck's piece takes it a step farther and says why the President's several efforts violate the Take Care Clause.
Tuesday, October 17, 2017
In the third iteration of the "Muslim Ban" or "Travel Ban" before the courts, federal District Judge Derrick Watson has issued an Order granting a nationwide preliminary injunction in Hawai'i v. Trump.
Recall that Judge Watson previously issued a preliminary injunction in Hawai'i v. Trump regarding a previous incarnation of the travel ban and that the United States Supreme Court has not yet disposed of the case to which it granted certiorari although it did vacate a similar Fourth Circuit case.
In today's Order and Opinion, Judge Watson began pointedly:
Professional athletes mirror the federal government in this respect: they operate within a set of rules, and when one among them forsakes those rules in favor of his own, problems ensue. And so it goes with EO-3.
The constitutional issues before the court involved standing of the States and of the individual plaintiffs. Given that the judge had previously held there was standing and there had been no substantial changes, Judge Watson unsurprisingly held there was standing. Judge Watson also held the claims were ripe and justiciable, rejecting the government's "troubling" contentions that the statutory challenges were not reviewable.
Judge Watson rests the likelihood to succeed on the merits conclusion on the statutory claims and did not discuss any constitutional issues. However, embedded in the statutory analysis is the question of Executive powers. For Judge Watson, EO-3 "improperly uses nationality as a proxy for risk" and its findings are "inconsistent with and do not fit the restrictions that the order actually imposes."
Judge Watson repeats the Plaintiffs' assertion that the President has never repudiated his early calls for a Muslim ban and that the "record has only gotten worse." In support, the Order's footnote 9 reads:
For example, on June 5, 2017, “the President endorsed the ‘original Travel Ban’ in a series of tweets in which he complained about how the Justice Department had submitted a ‘watered down, politically correct version’” to the Supreme Court. TAC ¶ 86 (quoting Donald J. Trump (@realDonaldTrump), Twitter (June 5, 2017, 3:29 AM EDT) https://goo.gl/dPiDBu). He further tweeted: “People, the lawyers and the courts can call it whatever they want, but I am calling it what we need and what it is, a TRAVEL BAN!” TAC ¶ 86 (quoting Donald J. Trump (@realDonaldTrump), Twitter (June 5, 2017, 3:25 AM EDT), https://goo.gl/9fsD9K). He later added: “That’s right, we need a TRAVEL BAN for certain DANGEROUS countries, not some politically correct term that won’t help us protect our people!” TAC ¶ 86 (quoting Donald J. Trump (@realDonaldTrump), Twitter (June 5, 2017, 6:20 PM EDT), https://goo.gl/VGaJ7z). Plaintiffs also point to “remarks made on the day that EO-3 was released, [in which] the President stated: ‘The travel ban: The tougher, the better.’” TAC ¶ 94 (quoting The White House, Office of the Press Sec’y, Press Gaggle by President Trump, Morristown Municipal Airport, 9/24/2017 (Sept. 24, 2017), https://goo.gl/R8DnJq).
Judge Watson enjoined the federal defendants from
"enforcing or implementing Sections 2(a), (b), (c), (e), (g), and (h) of the Proclamation issued on September 24, 2017, entitled “Enhancing Vetting Capabilities and Processes for Detecting Attempted Entry into the United States by Terrorists or Other Public-Safety Threats” across the Nation. Enforcement of these provisions in all places, including the United States, at all United States borders and ports of entry, and in the issuance of visas is prohibited, pending further orders from this Court."
The Judge also preemptively denied a stay in the case of emergency appeal - - - which will surely follow.
Monday, October 16, 2017
As soon as President Trump announced last week that his administration would halt cost-sharing reimbursement payments to insurers on the Obamacare exchanges, 18 states and the District of Columbia sued, arguing that the move violates federal law and the Take Care Clause of the Constitution.
The cost-sharing reimbursements ("CSRs") are designed to reimburse insurers for extending insurance to low- and moderate-income individuals and families on the Obamacare exchanges. Recall that while the ACA requires the government to pay CSRs, Congress failed to appropriate funds for them under President Obama. The President nevertheless paid them, and the House of Representatives sued. Judge Rosemary Collyer (D.D.C.) ruled in favor of the House and stopped the payments. The D.C. Circuit, however, held the case in abeyance as the Trump administration decided whether to stop the payments. We posted most recently here.
The Trump administration continued the CSRs--until last week.
Eighteen states and the District of Columbia immediately brought suit in the Northern District of California. The complaint points out that 42 U.S.C. Sec. 18071(c)(3)(A) says that the Secretary "shall make periodic and timely payments [CSRs]" to the insurers and argues that the President's decision not to make payments violates the Administrative Procedure Act and the Take Care Clause. The complaint also catalogues the familiar and many ways that the Trump administration is actively undermining the ACA, and argues that these, too, violate the Take Care Clause.
The lawsuit pits the fact that the ACA requires CSRs against the fact that Congress declined to fund them, against the backdrop of the well-integrated and complementary provisions in the ACA, which could all fall apart without the CSRs. When Judge Collyer address these issues, she wrote,
Nothing in Section 1402 prescribes a "periodic and timely payment" process, however. Nor does Section 1402 condition the insurers' obligation to reduce cost sharing on the receipt of offsetting payments.
Such an appropriation [for CSRs] cannot be inferred [from the integration between refundable tax credits, which were funded by Congress, and CSRs, which were not], no matter how programmatically aligned the Secretaries may view [those sections]. . . .
Payment out [CSRs] without an appropriation thus violates the Constitution. Congress authorized reduced cost sharing but did not appropriate monies for it, in the FY 2014 budget or since. Congress is the only source for such an appropriation, and no public money can be spent without one.
Tuesday, October 10, 2017
The United States Supreme Court issued an Order in Trump v. International Refugee Assistance Project (IRAP) bring the case to a close:
We granted certiorari in this case to resolve a challenge to“the temporary suspension of entry of aliens abroad under Section 2(c) of Executive Order No. 13,780.” Because that provision of the Order “expired by its own terms” on September 24, 2017, the appeal no longer presents a “live case or controversy.” Burke v. Barnes, 479 U. S. 361, 363 (1987). Following our established practice in such cases, the judgment is therefore vacated, and the case is remanded to the United States Court of Appeals for the Fourth Circuit with instructions to dismiss as moot the challenge to Executive Order No. 13,780. United States v. Munsingwear, Inc., 340 U. S. 36, 39 (1950). We express no view on the merits.
Justice Sotomayor dissents from the order vacating the judgment below and would dismiss the writ of certiorari as improvidently granted.
Recall that the en banc Fourth Circuit concluded that the plaintiffs have standing and that the plaintiffs are likely to succeed on the merits of their Establishment Clause challenge to the Executive Order. The main opinion was authored by Chief Judge Roger Gregory with six other judges joining in full. The case had proceeded directly to en banc from Maryland District Judge Theodore Chuang's Opinion and nationwide injunction .
Most likely, a similar order disposing on Hawai'i v. Trump will follow.
However, the new "travel ban" - - - the third attempt by the Trump Administration - - - has already been challenged.
Thursday, September 28, 2017
Check out Linda Greenhouse's take on the travel ban case at the NYT, the case's likely mootness, and what it all means. Here's a link to Robert Loeb's piece at Lawfare (cited by Greenhouse) on the "presumption of regularity"--the basis for the administration's argument that the Court should grant it deference, and not look behind the stated purposes of the travel ban to the President's and surrogates' anti-Muslim statements.
Tuesday, August 8, 2017
The City of Chicago filed suit this week against the U.S. Department of Justice over the Department's conditions on a federal law-enforcement grant designed to clamp down on sanctuary cities. The suit is just the latest escalation in the running disputes between "sanctuary" jurisdictions and the Trump Administration. We posted most recently here.
Chicago challenges DOJ-added conditions on the Byrne Justice Assistance Grant program that, it says, exceed DOJ authority, violate federalism principles, and interfere with the City's long-standing and effective Welcoming Policy, now codified as the Welcoming City Ordinance. DOJ announced some time ago that it would require grant recipients to comply with Section 1373 (which requires state and local authorities to communicate with federal authorities regarding the immigration status of individuals in their custody). More recently, DOJ announced that it would also require recipients to give the federal government notice of release of any individual at least 48 hours before the scheduled release (the notice condition) and to give federal immigration officials unlimited access to local police stations and law enforcement facilities to interrogate any suspected non-citizen held there (the access condition).
Chicago claims as an initial matter that it complies with Section 1373. That's because its Welcoming Policy prohibits officers from collecting immigration information from individuals in the first place, not from communicating information to federal officers. "[T]hus there is no information for the City to share (or restrict from sharing)." And "[m]oreover, if Chicago officials happen to come across immigration status information, they are not restricted from sharing it with federal officials."
As to the conditions themselves, Chicago argues that they exceed the grant requirements that Congress wrote into the Byrne JAG program; that only Congress, and not the Executive Branch, can add or change the statutory conditions on the program; and that the conditions violate federal conditioned-spending rules. As to the last, Chicago says that the conditions "are not germane to the Byrne JAG funds it has received for over a decade," that the notice and access conditions would require the City to violate the Fourth Amendment (by requiring that the City continue to hold individuals without probable cause for 48 hours, that the access condition, that the conditions are ambiguous, and that they are unconstitutionally coercive. The City also argues that each condition unconstitutionally commandeers it and its officers.
The case is in the Northern District of Illinois.
Friday, August 4, 2017
The D.C. Circuit earlier this week allowed 17 states and the District of Columbia to intervene in the suit challenging federal subsidies to insurance companies under the Affordable Care Act.
The development keeps the appeal alive, even as President Trump considers halting the payments. Such a move before this week's ruling would have mooted the appeal. But now that the states can defend the payments, and oppose Judge Collyer's ruling, it's not entirely clear whether President Trump can stop the payments, or whether the D.C. Circuit might stop him if he tried.
Recall that House Republicans sued the Obama Administration for making payments to insurance companies under the ACA, even though the line-item for those payments was zero funded. The payments were designed under the ACA to subsidize insurance companies for providing affordable plans on the exchanges. But Congress allocated no money to the line-item designated for the subsidies. The Obama Administration nevertheless made payments, drawing money from another, related account. (Without the payments, insurance rates would skyrocket on the exchanges, or insurers would have pulled out, or both.)
House Republicans sued, and Judge Rosemary Collyer (D.D.C.) ruled in their favor. But she stayed her injunction pending appeal. President Trump then inherited the appeal from the Obama Administration, allowing him to drop the appeal, leave Judge Collyer's decision in place, and stop the payments. (If President Trump dropped the appeal, Judge Collyer's stay pending appeal would have gone away.) He could even have cited Judge Collyer's ruling as a reason for stopping payments, perhaps diffusing some of the political blow-back from such a move.
But President Trump didn't drop the appeal. Moreover, he has continued the payments, even as he repeatedly suggests that he might stop. Bipartisan lawmakers have encouraged him to continue payments. A final decision is due from the White House this week.
Now, with this most recent order from the D.C. Circuit, allowing states to join the suit, the appeal will continue (with the states now defending the payments, even as the Trump Administration doesn't), and Judge Collyer's stay will remain in place, at least until the D.C. Circuit rules on the case. While the stay itself doesn't prevent the President from halting payments, the states' intervention might: Because the D.C. Circuit said that the states demonstrated sufficient harm if the subsidies stop (a condition of intervention), it's not entirely clear that President Trump can stop them. And even if he can, it's not clear that the D.C. Circuit might not prevent him from stopping them (in order not to harm the states).
In other words, the states' intervention might tie the President's hands by forcing him to continue payments, even though the parties to the lawsuit might otherwise agree to stop the payments and let the case go moot.
The uncertainty here comes, on the one hand, from the fact that the President can probably stop the payments whenever he wants, irrespective of the states' intervention or Judge Collyers' ruling and stay. But on the other hand if the states argue that the President has to make payments under the ACA (and not just that he can't be prevented from making payments), then the D.C. Circuit could stop the President from halting payments. This week's ruling suggests, but does not specifically say, that the D.C. Circuit is leaving this latter option open.
But it gets even weirder. The D.C. Circuit might not even rule on the merits. That's because the states will surely challenge the House's standing to bring the case in the first place. If the D.C. Circuit kicks the case on standing grounds, that'll undue Judge Collyer's decision against the payments.
For now, the ball's in the President's court.
Attorney General Jeff Sessions announced yesterday that DOJ will "tak[e] . . . into account" a city's "sanctuary" status in determining eligibility for the Department's new Public Safety Partnership program. AG Sessions accompanied the announcement with letters to Albequerque, Baltimore, San Bernadino, and Stockton--cities that had expressed an interest in participating in the PSP--asking for information related to their sanctuary policies.
The move adds a new program, the PSP, to some other Justice programs that are also unavailable to "sanctuary" jurisdictions--those jurisdictions that restrict their officers from communicating with federal authorities regarding the citizenship or immigration status of individuals in detention. In this way, the move is yet one more attempt by DOJ to encourage jurisdictions to drop their sanctuary policies.
AG Sessions initiated the PSP program in June. It provides training and technical assistance to local jurisdictions "to address violent crime in their communities." The Department initially selected twelve jurisdictions to participate in the program.
Earlier, the Department moved to clamp down on "sanctuary" jurisdictions by requiring them to drop their sanctuary policies as a condition of qualification for certain Justice grants. (In particular, DOJ said that jurisdictions that failed to comply with Section 1373 would not qualify for certain DOJ and DHS grants. Section 1373 says that "a Federal, State, or local government entity or official may not prohibit, or in any way restrict, any government entity or official from sending to, or receiving from, the Immigration and Naturalization Service information regarding the citizenship or immigration status, lawful or unlawful, of any individual.") DOJ adopted this policy as a way to implement President Trump's facially overbroad sanctuary cities executive order.
AG Sessions didn't go so far as to categorically deny sanctuary jurisdictions from the PSP program, however. Instead, he said that "[b]y taking simple, common-sense considerations into account, we are encouraging every jurisdiction in this country to cooperate with federal law enforcement." Specifically:
In determining which jurisdictions to select, the Department will ask interested jurisdictions the following questions:
1. Does your jurisdiction have a statute, rule, regulation, policy, or practice that is designed to ensure that U.S. Department of Homeland Security (DHS) personnel have access to any correctional or detention facility in order to meet with an alien (or an individual believed to be an alien) and inquire as to his or her right to be or to remain in the United States?
2. Does your jurisdiction have a statute, rule, regulation, policy, or practice that is designed to ensure that your correctional and detention facilities provide at least 48 hours advance notice, where possible, to DHS regarding the scheduled release date and time of an alien in the jurisdiction's custody when DHS requests such notice in order to take custody of the alien?
3. Does your jurisdiction have a statute, rule, regulation, policy, or practice that is designed to ensure that your correctional and detention facilities will honor a written request from DHS to hold a foreign national for up to 48 hours beyond the scheduled release date, in order to permit DHS to take custody of the foreign national?
AG Sessions tied the PSP program to the no-sanctuary-policies condition by arguing that sanctuary cities threaten public safety: "By protecting criminals from immigration enforcement, cities and states with so-called "sanctuary" policies make all of us less safe." AG Sessions presumably drew the connection at least in part in order to satisfy the relatedness requirement for federal conditioned spending programs under South Dakota v. Dole. (Under South Dakota, a federal conditioned spending program must (1) be in the "general welfare," (2) state the condition clearly, (3) be related to the condition, and (4) not turn pressure to participate into compulsion to participate.)
Thursday, August 3, 2017
The Hill reports that Senator Lisa Murkowski (R-Alaska) set nine pro forma sessions for the Senate over the August recess. The move means that the body will be in session every three days, even if only very briefly (just to gavel in, then immediately gavel out), so that it won't formally adjourn for the recess. Without an adjournment (more particularly, without formally going into a "recess"), President Trump can't use his recess appointment power.
Senate Republicans effectively used this tactic to frustrate President Obama's efforts to fill key executive slots. In 2014, the Supreme Court sided with the Senate on the practice in NLRB v. Noel Canning. The Court in that case held as a general matter that the Senate is in session when it says it is, and it's not when it says it's not. In particular, it held that a Senate schedule with a pro forma session every three days does not constitute a "recess" under the Recess Appointments Clause (unless the Senate says so). So when the Senate sets an every-three-day pro forma schedule over the August "recess," it similarly isn't in "recess" under the Recess Appointments Clause. And President Trump therefore can't make recess appointments.