Monday, January 30, 2017
Washington State Attorney General Robert Ferguson has filed suit on behalf of the State in Western District of Washington, arguing that President Trump's immigration EO violates various constitutional provisions (including equal protection, due process, and establishment of religion). The State also moved for a nationwide temporary restraining order.
As to standing, the state argues that the EO interferes with its interests in protecting the health, safety, and well-being of residents (including about 7,280 non-citizen immigrants from the seven countries identified in the EO) and its interests in economic activity and growth. (The State points out that it's the home of Microsoft, Amazon, Expedia, and Starbucks, among others, and that those companies rely on the H-1B visa program.)
Here's the NYT report on this unprecedented move.
President Trump fired Acting AG Yates for declining to defend his EO on immigration. The move is stunning, because the DOJ has by tradition enjoyed political independence from the White House. (The White House could have hired private counsel to defend the EO. Congress did just that to defend the DOMA in Windsor after DOJ declined.)
The White House released a statement that said Yates "betrayed the Department of Justice by refusing to enforce a legal order designed to protect the citizens of the United States. . . . Ms. Yates is an Obama Administration appointee who is weak on borders and very weak on illegal immigration."
The White House has maintained that the EO was cleared ("as to form and legality") by the Office of Legal Counsel at DOJ. So far, OLC hasn't posted anything.
President Trump issued an Executive Order today requiring agencies to dump two regs for every new reg they issue.
The two-for-one standard seems a little, er, blunt. But, if implemented, it will undoubtedly reduce total federal regulations, helping to fulfill a campaign promise.
In his most recent EO, President Trump wrote that "it is important that for every one new regulation issued, at least two prior regulations be identified for elimination, and that the cost of planned regulations be prudently managed and controlled through a budgeting process." The EO requires that "any new incremental costs associated with new regulations shall, to the extent permitted by law, be offset by the elimination of existing costs associated with at least two prior regulations."
The EO also requires that "the total incremental cost of all new regulations, including repealed regulations, to be finalized this year shall be no greater than zero, unless otherwise required by law or consistent with advice provided in writing by the Director of the Office of Management and Budget."
President Trump issued an EO this weekend reorganizing the National Security Council and for the first time adding a member of the President's political team to the Principals Committee. The changes have been all over the news (even if lost behind President Trump's EO on immigration); here's one of the better reports, from Kelly Magsamen at The Atlantic.
The National Security Council is established pursuant to the National Security Act of 1947, 50 U.S.C. Sec. 402. The Act names members of the Council and its committees, but also gives the President some flexibility in organizing it. Presidents have organized and used the NSC very differently, as explained in this Congressional Research Service report, but President Trump's move is the first time that a political operative gets a permanent seat at the table. Magsamen explained:
For the first time in history, a president's chief political strategist will be invited to attend any meeting of the National Security Council and will be a regular member of the highly-influential Principals Committee (PC). Now, politics finding its way into a president's national-security decision-making is nothing new. But it rarely (if ever) gets a seat in the White House Situation Room--for good reason. To place a purely political operative on the NSC--alongside actual Cabinet members with national-security responsibilities or expertise--is an unprecedented move with profound implications for how national-security policies are developed and executed. To be clear, that concern is not confined to Steve Bannon. This would be the case no matter who it was.
Under the EO, the Director of National Intelligence and the chairman of the Joint Chiefs of Staff are off the Principals Committee. Instead, they "shall attend where issues pertaining to their responsibilities and expertise are to be discussed."
Thursday, January 26, 2017
There's a new handy guide collecting resources that will come in handy for ConLawProfs, students, lawyers, and the general public.
In conjunction with the course, Presidential Power, to be offered at University of Washington School of Law by Professors Kathryn Watts and Sanne Knudsen, law librarian Mary Whisner has developed an excellent "Readings and resources concerning presidential power" library guide available here.
Some of the guide tracks the course, and is thus in development, but the "Books about Presidential Power" section is a great place to start understanding the legal, historical, and political dimensions of the issues. The "Useful Reference" portion is a good overview, with a handy link to the Federal Register feed.
Additionally, here are two PBS "crash course" videos - - - from 2015 - - - that are also worth a watch:
Wednesday, January 25, 2017
President Trump's EO today threatening to revoke federal funding for sanctuary cities runs right up against NFIB v. Sebelius, the Supreme Court's Obamacare decision, penned by Chief Justice John Roberts. In other words: It is unconstitutional.
Recall that the Court in NFIB ruled that Obamacare's Medicaid expansion violated federalism principles, because Obamacare threatened a state that declined to expand Medicaid with a potential loss of all federal Medicaid funding. Chief Justice Roberts wrote that the provision was "a gun to the head" of states, and that the threatened loss of Medicaid funding "is economic dragooning that leaves the States with no real option but to acquiesce in the Medicaid expansion." The Court "saved" the provision, however, by ruling that the federal government could withhold the additional Obamacare funding for Medicaid expansion from any state that declined to expand Medicaid under Obamacare. It just couldn't withhold all Medicaid funding.
Enter Trump's policy on sanctuary cities. President Trump's EO says that it's the policy of Executive Branch to "[e]nsure that jurisdictions that fail to comply with applicable Federal law do not receive Federal funds, except as mandated by law." So far, so good, if NFIB is part of law, as it is.
But the EO goes on to say that "the Attorney General and the Secretary . . . 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 by the Attorney General or the Secretary."
This goes much farther than Obamacare's Medicaid expansion: The EO threatens to revoke all federal funding to a jurisdiction, with just a small caveat, and with no overriding "except as mandated by law" clause.
If Obamacare was a "gun to the head," this is much more. (Maybe a nuclear bomb to the head?) Moreover, most of the federal funding at stake has nothing to do with immigration, pretty clearly violating the "germaneness" or "relatedness" requirement from South Dakota v. Dole.
Whatever one thinks about NFIB, or even the animating federalism principles that the Court applied, President Trump's EO goes much, much farther. And whatever one thinks about sanctuary cities, President Trump's approach is quite clearly out of constitutional bounds.
Check out Daniel Hemel, Jonathan Masur, and Eric Posner's (all U. Chicago) piece in the NYT, arguing that Justice Scalia's opinion in Michigan v. EPA could block President Trump from building his wall.
Here's why. Scalia wrote in Michigan that the EPA's authority to issue "appropriate and necessary" regulations meant that it had to do a cost-benefit analysis on proposed rules. President Trump apparently intends to rely on the Secure Fence Act of 2006 as authority to build his wall. But that Act authorizes Homeland Security to take actions to secure the border only if they're "necessary and appropriate."
Hemel, Masur, and Posner argue that Scalia's opinion that "appropriate" includes a cost-benefit analysis should apply to President Trump's wall, too. And if so, they say it'll be very hard, even impossible, to justify it.
Check out Prof. Eric Segall's (Georgia State) piece in the LA Times, arguing that CREW has standing to sue President Trump for an Emoluments Clause violation. We posted on the case here.
Segall says that CREW's harm is greater than the plaintiffs' harms in other cases, where the Court granted standing. Citing Fisher and Massachusetts v. EPA, Segall writes that "[t]here are many examples of plaintiffs in high-profile and important cases having their cases heard despite injuries just as or even more abstract and tenuous than the ones put forward by CREW."
Monday, January 23, 2017
In short, CREW argues that the Trump corporation's business with other countries means that it takes money from them, and because President Trump hasn't divested, "[w]hen Trump the president sits down to negotiate trade deals with these countries, the American people will have no way of knowing whether he will also be thinking about the profits of Trump the businessman."
CREW's standing to sue will certainly be an issue. Here's the abridged version of what CREW has to say about its injury:
Defendant's violations of the Foreign Emoluments Clause have required CREW to divert and expend its valuable resources specifically to counteract those violations, impairing CREW's ability to accomplish its mission. CREW has had to counteract Defendant's violations because they are particularly harmful to CREW due to its status as a nonpartisan, nonprofit organization with the resources, board of directors, in-house legal team, and mission that it has.
There is a direct conflict between Defendant's violations of the Foreign Emoluments Clause and CREW's mission of protecting the rights of citizens to be informed about the activities of government officials, ensuring the integrity of government officials, protecting our political system against corruption, and reducing the influence of money in politics. Defendant's violations create a tremendous risk of foreign governments using money to improperly influence the President, create questions about the President's motives in making foreign-policy decisions, and will likely lead to numerous conflicts and violations that the public will have insufficient information to judge.
Sunday, January 22, 2017
The New York Times reported today that a group of law profs, Supreme Court litigators, and former White House ethics lawyers will file a suit tomorrow alleging that President Trump is violating the Emoluments Clause. Here's the gist:
The suit, which will not seek any monetary damages, will ask a federal court in New York to order Mr. Trump to stop taking payments from foreign government entities. Such payments, it says, include those from patrons at Trump hotels and golf courses, as well as loans for his office buildings from certain banks controlled by foreign governments, and leases with tenants like the Abu Dhabi tourism office, a government enterprise.
The plaintiff in the case is Citizens for Responsibility and Ethics in Washington, CREW.
We've posted on the Emoluments Clause and President Trump here and here (with links to others). Prof. Andy Grewel's (Iowa) paper, recently posted, referenced in the piece, and arguing that payment to a Trump hotel wouldn't violate the Emoluments Clause, is here.
The Office of Legal Counsel memo that concludes that President Trump can hire son-in-law Jared Kushner to the White House staff is mostly statutory construction. (It concludes that the anti-nepotism statute does not apply to the President's hiring authority for the White House Office. At the same time, however, it also concludes that conflict-of-interest laws do apply.)
But it contains just a wee little bit of separation of powers, too. Check it out:
Finally, we believe this result--that the President may appoint relatives to his immediate staff of advisors in the White House Office--makes sense when considered in light of other legal principles. Congress has not blocked, and mostly likely could not block, the President from seeking advice from family members in their personal capacities. Cf. In re Cheney, 406 F.3d 723, 728 (D.C. Cir. 2005) (en banc) (referring to the President's need "[i]n making decisions on personnel and policy, and in formulating legislative proposals, . . . to seek confidential information from many sources, both inside the government and outside"); Pub. Citizen v. U.S. Dep't of Justice, 491 U.S. 440, 466 (1989) (construing the Federal Advisory Committee Act ("FACA") not to apply to the judicial recommendation panels of the American Bar Association in order to avoid "formidable constitutional difficulties"). Consequently, even if the anti-nepotism statute prevented the President from employing relatives in the White House as advisors, he would remain free to consult those relatives as private citizens.
Because conflict-of-interest laws apply to White House staff, according to the memo, this leaves the President with a choice: (1) seek the advice of a relative on an unofficial, ad hoc basis; or (2) "appoint his relative to the White House under title 3 and subject him to substantial restrictions against conflicts of interest."
Check out Seth Chandler's piece in Forbes, arguing that President Obama's unilateral executive actions on the Affordable Care Act set a precedent for President Trump's executive order scaling back the Act. "[A]ctions taken by the Obama administration to play fast and loose with administrative procedures and separation of powers have opened the door to the Trump executive branch to derail the ACA even without Congressional action." One example (of a few):
President Obama, after all, delayed enforcement of the employer mandate for a year for some large employers and delayed enforcement for two years for others. It was, the President asserted, too burdensome to comply with. President Trump might equally assert that, given the poor quality and high prices of ACA policies in many jurisdictions, it is too burdensome to comply with the individual mandate today.
Wednesday, December 28, 2016
A divided panel of the Tenth Circuit ruled yesterday that SEC Administrative Law Judges violate the Appointments Clause.
The important, pathbreaking ruling creates a circuit split--the D.C. Circuit went the other way earlier this fall--and tees the issue up for Supreme Court review.
The majority was careful to remind that its ruling extended only to SEC ALJs, not all ALJs, so it's not clear exactly how far the logic goes. It probably doesn't matter much, though, at least for now, because the case will almost surely go to the Supreme Court.
The case arose when David Bandimere challenged an SEC ruling against him, in part because the ALJ that issued the initial decision was appointed in violation of the Appointments Clause. The SEC rejected the argument, but the Tenth Circuit agreed with Bandimere. (The SEC ruled that the ALJ was an "employee," not subject to the Appointments Clause.)
The court ruled that SEC ALJs look just like the Tax Court Special Trial Judges at issue in Freytag v. Commissioner. In Freytag, the Supreme Court used a functional analysis to conclude that the STJs were inferior officers, to be appointed by "the President alone, in the Court of Law, or in the Heads of Department." The court said that SEC ALJs, like the STJs, (1) were "established by Law," (2) had "duties, salary, and means of appointment . . . specified by statute," and (3) "exercise significant discretion" in "carrying out . . . important functions." As inferior officers, the court said that they had to be appointed by the President, the courts, or a head of a department, and, because they weren't (this point wasn't contested), they violate the Appointments Clause.
The court parted ways with the D.C. Circuit on the same question, because, it said, the D.C. Circuit put too much emphasis on the third part of the Freytag analysis--in particular, that the ALJs didn't exercise final decisionmaking power: "We disagree with the SEC's reading of Freytag and its argument that final decision-making power is dispositive to the question at hand."
Judge McKay dissented, focusing on the differences between SEC ALJs and the STJs in Freytag ("Most importantly, the special trial judges at issue in Freytag had the sovereign power to bind the Government and third parties," while "the Commission is not bound--in any way--by an ALJ's recommendations") and the potentially sweeping implications of the ruling ("all federal ALJs are at risk of being declared inferior officers," and therefore in violation of the Appointments Clause).
Saturday, December 17, 2016
Check out this Brookings brief, The Emoluments Clause: Its text, meaning, and application to Donald J. Trump, just published by Norman Eisen, Richard Painter, and Laurence Tribe. From the intro:
Foreign interference in the American political system was among the gravest dangers feared by the Founders of our nation and the framers of our Constitution. . . .
As careful students of history, the Framers were painfully aware that entanglements between American officials and foreign powers could pose a creeping, insidious risk to the Republic. The Emoluments Clause was forged of their hard-won wisdom. It is no relic of a bygone era, but rather an expression of insight into the nature of the human condition and the preconditions of self-governance. . . .
While holding office, Mr. Trump will receive--by virtue of his continued interest in the Trump Organization and his stake in hundreds of other entities--a steady stream of monetary and other benefits from foreign powers and their agents.
Thursday, December 15, 2016
President Obama's 2016 Proclamation regarding Bill of Rights Day stresses the evolving nature of the Bill of Rights protections:
As it was originally created, the Bill of Rights safeguarded personal liberties and ensured equal justice under the law for many -- but not for all. In the centuries that followed its ratification, courageous Americans agitated and sacrificed to extend these rights to more people, moving us closer to ensuring opportunity and equality are not limited by one's race, sex, or circumstances. The desire and capacity to forge our own destinies have propelled us forward at every turn in history. The same principles that drove patriots to choose revolution over tyranny, a country to cast off the stains of slavery, women to reach for the ballot, and workers to organize for their rights still remind us that our freedom is intertwined with the freedom of others. If we are to ensure the sacred ideals embodied in the Bill of Rights are afforded to everyone, each generation must do what those who came before them have done and recommit to holding fast to our values and protecting these freedoms.
Two and a quarter centuries later, these 10 Constitutional Amendments remain a symbol of one of our Nation's first successful steps in our journey to uphold the rights of all citizens. On Bill of Rights Day, we celebrate the long arc of progress that transformed our Nation from a fledgling and fragile democracy to one in which civil rights are the birthright of all Americans. This progress was never inevitable, and as long as people remain willing to fight for justice, we can work to swing open more doors of opportunity and carry forward a vision of liberty and equality for generations to come.
As for how "Bill of Rights Day" became a named day - - - if not a true holiday - - - my previous discussion is here.
Tuesday, November 29, 2016
The United States Supreme Court has held that flag burning as expressive speech is protected by the First Amendment and that loss of citizenship is not a constitutional punishment for a crime.
In Texas v. Johnson (1989), the Court declared:
If there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable. . . . In short, nothing in our precedents suggests that a State may foster its own view of the flag by prohibiting expressive conduct relating to it.. . . There is, moreover, no indication -- either in the text of the Constitution or in our cases interpreting it -- that a separate juridical category exists for the American flag alone. Indeed, we would not be surprised to learn that the persons who framed our Constitution and wrote the Amendment that we now construe were not known for their reverence for the Union Jack. The First Amendment does not guarantee that other concepts virtually sacred to our Nation as a whole -- such as the principle that discrimination on the basis of race is odious and destructive -- will go unquestioned in the marketplace of ideas. . . .
We are tempted to say, in fact, that the flag's deservedly cherished place in our community will be strengthened, not weakened, by our holding today. Our decision is a reaffirmation of the principles of freedom and inclusiveness that the flag best reflects, and of the conviction that our toleration of criticism such as Johnson's is a sign and source of our strength. Indeed, one of the proudest images of our flag, the one immortalized in our own national anthem, is of the bombardment it survived at Fort McHenry. It is the Nation's resilience, not its rigidity, that Texas sees reflected in the flag -- and it is that resilience that we reassert today.
The way to preserve the flag's special role is not to punish those who feel differently about these matters. It is to persuade them that they are wrong.
To courageous, self-reliant men, with confidence in the power of free and fearless reasoning applied through the processes of popular government, no danger flowing from speech can be deemed clear and present unless the incidence of the evil apprehended is so imminent that it may befall before there is opportunity for full discussion. If there be time to expose through discussion the falsehood and fallacies, to avert the evil by the processes of education, the remedy to bee applied is more speech, not enforced silence.
Whitney v. California(1927) (Brandeis, J., concurring). And, precisely because it is our flag that is involved, one's response to the flag-burner may exploit the uniquely persuasive power of the flag itself. We can imagine no more appropriate response to burning a flag than waving one's own, no better way to counter a flag burner's message than by saluting the flag that burns, no surer means of preserving the dignity even of the flag that burned than by -- as one witness here did -- according its remains a respectful burial. We do not consecrate the flag by punishing its desecration, for in doing so we dilute the freedom that this cherished emblem represents.
During the oral argument in Texas v. Johnson, the late Justice Scalia, who joined the Court's opinion, expressed scorn for the notion that the flag should be insulated from the First Amendment protections of speech. In a colloquy with the attorney for the State of Texas, Justice Scalia wondered if Texas could similarly criminalize desecration of the state flower, the blue bonnet. Scalia then remarked:
Well, how do you pick out what to protect?
I mean, you know, if I had to pick between the Constitution and the flag, I might well go with the Constitution.
As for the constitutionality of "loss of citizenship" as punishment for a criminal violation, the United States Supreme Court, in Trop v. Dulles (1958), declared that "Citizenship is not a license that expires upon misbehavior." In considering a statute that revoked citizenship for desertion by a member of the armed forces, the Court stated that the
use of denationalization as a punishment is barred by the Eighth Amendment. There may be involved no physical mistreatment, no primitive torture. There is instead the total destruction of the individual's status in organized society. It is a form of punishment more primitive than torture, for it destroys for the individual the political existence that was centuries in the development. The punishment strips the citizen of his status in the national and international political community. His very existence is at the sufferance of the country in which he happens to find himself. While any one country may accord him some rights, and presumably as long as he remained in this country he would enjoy the limited rights of an alien, no country need do so because he is stateless. Furthermore, his enjoyment of even the limited rights of an alien might be subject to termination at any time by reason of deportation. In short, the expatriate has lost the right to have rights.
This punishment is offensive to cardinal principles for which the Constitution stands. It subjects the individual to a fate of ever-increasing fear and distress. He knows not what discriminations may be established against him, what proscriptions may be directed against him, and when and for what cause his existence in his native land may be terminated. He may be subject to banishment, a fate universally decried by civilized people. He is stateless, a condition deplored in the international community of democracies. It is no answer to suggest that all the disastrous consequences of this fate may not be brought to bear on a stateless person. The threat makes the punishment obnoxious.
The civilized nations of the world are in virtual unanimity that statelessness is not to be imposed as punishment for crime.
Thus it seems that the president-elect's sentiment is at odds with our constitutional precedent.
Nobody should be allowed to burn the American flag - if they do, there must be consequences - perhaps loss of citizenship or year in jail!— Donald J. Trump (@realDonaldTrump) November 29, 2016
Tuesday, November 22, 2016
Judge Amos L. Mazzant (E.D. Tex.) granted a nationwide injunction today against the Obama Administration in enforcing its new overtime rules.
The ruling is a blow to President Obama's effort to update the overtime requirements through administrative rulemaking, and not legislation. The nationwide injunction seems extreme, but, as Judge Mazzant noted, this district-court-issuing-a-nationwide-injunction-thing seems to be a growing trend among district court judges striking President Obama's administrative initiatives.
At the same time, the new Trump Administration will almost surely undo these rules, anyway.
So the big loser is the lower-income (between $23,660 to $47,892 per year), salaried worker. That person, covered by the now-enjoined rule, won't qualify for overtime. (The court said that the FLSA requires a "duties" test. So if DOL can reissue regs around duties, some of these workers may still qualify. But don't count on this with the new administration.)
The government can appeal, but the conservative Fifth Circuit seems likely to affirm. And again: The Trump Administration will almost surely undo this, anyway.
Recall that DOL issued rules raising the "executive, administrative, and professional" exemption from the FLSA requirement that employers pay overtime to workers. In particular, DOL issued rules that said that employees who earn up to $47,892 per year (up from $23,660 per year) fell outside the exemption, and therefore qualified for mandatory overtime. The new rules also set an automatic update that adjusts the minimum salary level every three years.
States and business organizations sued, arguing that the rules violated the Administrative Procedures Act, because they weren't authorized by the FLSA. The state plaintiffs threw in a claim that the new rules and the entire FLSA violated the Tenth Amendment and federalism principles. Because this claim ran headlong into Garcia (which upheld the application of the FLSA to the states), the states, for good measure, went ahead and boldly argued that the court should overturn Garcia.
The court agreed with the APA claim, but disagreed about Garcia. As to the APA, the court said that the language of the FLSA--"executive, administrative, and professional" employees are exempt from the overtime mandate, and that DOL can promulgate regs to implement this exemption--required that the government consider employees' duties, and not just income, in determining whether an employee qualifies. Because the new regs only considered income, they violated the FLSA.
As to Garcia: the court flatly rejected the call to overturn it. This is hardly a surprise: It's still good law, after all. It seems the states were banking on a favorable ruling from the Fifth Circuit and a split Supreme Court. (That sounds familiar.)
Or they were banking on a differently comprised Court entirely--one friendly to their anti-Garcia claim. And who knows? Now they might get it.
The House of Representatives last week filed a motion at the D.C. Circuit to delay the government's appeal of a district court ruling that the Obama Administration spent money on reimbursements to insurers under the Affordable Care Act without congressional authorization of funds. We posted on that ruling here.
The move seeks to halt the appeal and give President-Elect Trump and House Republicans time to figure out what to do next.
Recall that the district court ruled that the Obama Administration could not spend money on reimbursements for insurers on the ACA exchanges without an authorization from Congress. Because Congress hadn't authorized the expenditure, the Administration couldn't spend the money. (The ACA provision providing for insurer reimbursement is important, even critical, to the success of the exchanges--it's designed to keep insurance rates affordable. Congress zero-funded the line-item, though.)
If the appeals court affirms the district court ruling, and if (as expected) Congress declines to fund the line-item for insurer reimbursement, insurers would have to dramatically increase rates or drop out of the exchange markets. On the other hand, the D.C. Circuit could rule that the House lacks standing, or it could rule for the Administration on the merits.
A halt to the appeal would allow the incoming administration some time to decide how to deal with the suit, insurer reimbursements, and Obamacare in general.
Julie Silverbrook of The Constitutional Sources Project has a worthwhile "brief history" of the Emoluments Clause, including the text and this excerpt from The Federalist No. 22: "Evils of this description ought not to be regarded as imaginary. One of the weak sides of republics, among their numerous advantages, is that they afford too easy an inlet to foreign corruption." The passage goes on to contrast monarchies with republican governments, the former being less susceptible to corruption because the hereditary monarch "has so great a personal interest in the government, and in the external glory of the nation, that it is not easy for a foreign power to give him an equivalent for what he would sacrifice by treachery to the State."
Scholar Zephyr Teachout has also been discussing Emoluments, as we noted here; And now might be a good time to reread Teachout's 2014 book Corruption in America). [update: If you don't have the book handy, her 2012 essay, Gifts, Offices, and Corruption is available on ssrn.]
While it has been argued that the Emoluments Clause should not apply to the President as we noted here, its application to a President-Elect is even more uncertain.
Law professors looking for a class exercise (or perhaps a paper topic) could use any number of examples, although a "hypothetical" based on an Argentina construction project might be useful. Here is the situation courtesy of a storify of tweets and here is the piece from The Hill.
Monday, November 21, 2016
Judge Colleen Kollar-Kotelly today dismissed Smith v. Obama, a case by a service-member challenging President Obama's authority to fight ISIS. The ruling ends the case, with little chance of a successful appeal, and frustrates anyone waiting for a court ruling on whether President Obama can use the AUMF to fight ISIS.
The plaintiff, a U.S. Army Captain, sued President Obama, arguing that neither the 2001 AUMF nor the 2002 AUMF authorized the President to order a military campaign against ISIS (Operation Inherent Resolve), and that the President violated the War Powers Resolution and the Take Care Clause in ordering the campaign.
The plaintiff, a supporter of Operation Inherent Resolve (not an opponent of the campaign, as is more usually the case in these kinds of challenges) who was deployed as part of that campaign, argued that he had standing, because President Obama's orders forced him to choose between two untenable options--following illegal orders (on the one hand) and disobey orders (on the other). The court rejected this claim. The court said that the plaintiff could follow orders without fear of punishment, even if the President acted illegally in ordering the campaign. The court also rejected the plaintiff's oath claim (that he'd violate his oath to protect the constitution by complying with illegal orders), again because he'd face no punishment.
The court went on to rule that the case raised a nonjusticiable political question:
Resolving this dispute would require the Court to determine whether the legal authorizations for the use of military force relied on by President Obama--the 2001 and 2002 AUMFs--in fact authorize the use of force against ISIL. With regard to the 2001 AUMF, the Court would have to determine whether the President is correct that ISIL is among "those nations, organizations, or persons" that "planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons," and that Operation Inherent Resolve represents "necessary and appropriate force" against that group. With regard to the 2002 AUMF, the Court would have to determine whether the President is correct that operations against ISIL are "necessary and appropriate in order to . . . defend the national security of the United States against the continuing threat posed by Iraq." For the reasons set out below, the Court finds that these are political questions under the first two Baker factors: the issues raised are primarily ones committed to the political branches of government, and the Court lacks judicially manageable standards, and is otherwise ill-equipped to resolve them.
The belt-and-suspenders ruling (dismissing for lack of standing and political question) seems unnecessary, given that the standing problems alone would seem to comfortably support dismissal. Moreover, the application of the political question doctrine seems at odds with the D.C. Circuit's post-Boumediene habeas cases. The court had something to say about this, in footnote 17:
Those courts were not asked to declare that an ongoing military operation, about which there appears to be no dispute between Congress and the President, was "illegal." They were asked to determine whether an individual should be accorded habeas corpus relief because his detainment had become illegal. This is a far more traditional and appropriate judicial role, which does not raise the same separation of powers issues present in this case.