Tuesday, June 19, 2018
Judge Julie A. Robinson (D. Kansas) ruled yesterday that Kansas's requirement that motor-voter applicants provide proof of citizenship violated the National Voter Registration Act and the constitutional right to vote. In addition, Judge Robinson took Kansas Secretary of State Kris Kobach to task for his conduct over the course of the case, and imposed a remarkable sanction against him.
The ruling should end Kansas's documentary-proof-of-citizenship law, but we'll likely see an appeal (even if almost certainly futile, given the record).
The case tests Kansas's law that motor-voters show proof of citizenship when registering to vote against the NVRA's requirement that states automatically register voters when they apply for a driver's license--and its prohibition on states requiring more information than "necessary to . . . enable State election officials to assess the eligibility of that applicant and to administer voter registration and other parts of the election process." Judge Robinson previously issued a temporary injunction against Kansas's law, upheld by the Tenth Circuit.
As to NVRA preemption, the court applied the Tenth Circuit's rule on NVRA preemption. That rule says that the attestation requirement in Section 5 presumptively satisfies the minimum-information requirement for motor-voter registration. In order to rebut the presumption, the defendant has to show that "they cannot enforce their voter qualifications because a substantial number of noncitizens have successfully registered using the Federal Form" in order to adopt more strenuous information requirements.
The court said that Kobach simply didn't prove that a substantial number of noncitizens have successfully registered using the Federal Form, and that there wasn't another, less burdensome way to enforce the state's citizenship requirement:
Defendant was given the opportunity to retain experts and marshal evidence to meet his burden of demonstrating that "a substantial number of noncitizens have successfully registered to vote under the attestation requirement" in order to rebut the presumption that attestation meets the minimum-information requirement of Section 5 and that nothing less than DPOC is sufficient to meet his eligibility-assessment and registration duties under the NVRA. As described below, the Court finds that on the trial record Defendant has failed to make a sufficient showing on the first inquiry. Moreover, even if Defendant could demonstrate a substantial number of noncitizen registrations, he has not demonstrated that nothing less than the DPOC law is sufficient to enforce the State's citizenship eligibility requirement.
As to the right to vote, Judge Robinson weighed DPOC's benefits and burdens, distinguished the balance in Crawford v. Marion County, and ruled that DPOC violated the right to vote. "Instead, the DPOC law disproportionately impacts duly qualified registration applicants, while only nominally preventing noncitizen voter registration."
Finally, Judge Robinson found that Kobach engaged in a repeated "pattern and practice . . . of flaunting disclosure and discovery rules that are designed to prevent prejudice and surprise at trial." "[G]iven the repeated instances involved, and the fact that Defendant resisted the Court's rulings by continuing to try to introduce such evidence after exclusion, the Court finds that further sanctions are appropriate . . . ." The court ordered Kobach to attend six additional CLE hours (over and above the state's regular requirements), pertaining to federal or Kansas civil rules of procedure or evidence.
Saturday, June 16, 2018
The Seventh Circuit this week denied the Justice Department's request to stay the nationwide injunction against the Department in Chicago's sanctuary cities case. The order says that the Seventh Circuit will wait until the Supreme Court rules in Trump v. Hawaii, the travel-ban case, before ruling on the issue.
Recall that a three-judge panel of the Seventh Circuit upheld a nationwide injunction issued by the district court against the Department enforcing two conditions imposed by the Attorney General on the DOJ-JAG/Byrne Grant program. DOJ filed a motion to stay the nationwide injunction pending appeal, and the full Seventh Circuit agreed to review the issue.
This latest round of jockeying came when DOJ sent a letter this week to the Seventh Circuit saying that if the Seventh Circuit didn't rule on its motion to stay the nationwide injunction by COB on June 18, DOJ would take it up with the Supreme Court. The Seventh Circuit interpreted the letter as a motion for an immediate ruling on DOJ's motion for a stay, and rejected it. The court said that it expected that the Supreme Court would have something to say about this in the travel-ban case, and it would await word from the high Court before ruling here.
The ruling makes it likely (or certain?) that DOJ will try to take this (the nationwide injunction) to the Supreme Court as early as Monday.
Thursday, June 14, 2018
In its opinion in Minnesota Voters Alliance v. Mansky, the Court held that a provision of a Minnesota law regulating voters' political attire violates the First Amendment. Recall from our preview that Minn. Stat. §211B.11, entitled "Soliciting near polling places," includes among its petty misdemeanor violations a prohibition of political attire: "A political badge, political button, or other political insignia may not be worn at or about the polling place on primary or election day."
The Court's majority opinion, by Chief Justice Roberts, finds that the "polling place" on election day constitutes a nonpublic forum under the First Amendment; it is "government- controlled property set aside for the sole purpose of voting" and is a "special enclave, subject to greater restriction." The question as phrased by the Court was therefore whether "Minnesota’s ban on political apparel is 'reasonable in light of the purpose served by the forum': voting." As in the oral argument, the Court considered the relevance of Burson v. Freeman (1992), in which the Court upheld a Tennessee statute which prohibited the solicitation of votes and the display or distribution of campaign materials within 100 feet of the entrance to a polling place.
Analogizing to Burson, the Court upheld Minnesota's objective in prohibiting voters from wearing particular kinds of expressive apparel or accessories while inside the polling place.
[W]e see no basis for rejecting Minnesota’s determination that some forms of advocacy should be excluded from the polling place, to set it aside as “an island of calm in which voters can peacefully contemplate their choices.” Brief for Respondents 43. Casting a vote is a weighty civic act, akin to a jury’s return of a verdict, or a representative’s vote on a piece of legislation. It is a time for choosing, not campaigning. The State may reasonably decide that the interior of the polling place should reflect that distinction.
However, the Court found that the Minnesota statute failed to satisfy the reasonable standard in the means chosen to achieve its goal: "the unmoored use of the term 'political' in the Minnesota law, combined with haphazard interpretations the State has provided in official guidance and representations to this Court, cause Minnesota’s restriction to fail even this forgiving test." The Court found "political" far too broad (citing dictionary definitions) and likewise found that "issue oriented material" was also too broad (" A rule whose fair enforcement requires an election judge to maintain a mental index of the platforms and positions of every candidate and party on the ballot is not reason- able. Candidates for statewide and federal office and major political parties can be expected to take positions on a wide array of subjects of local and national import.")
However, the Court gestured toward acceptable means chosen:
That is not to say that Minnesota has set upon an impossible task. Other States have laws proscribing displays (including apparel) in more lucid terms. See, e.g., Cal. Elec. Code Ann. §319.5 (West Cum. Supp. 2018) (prohibiting “the visible display . . . of information that advocates for or against any candidate or measure,” including the “display of a candidate’s name, likeness, or logo,” the “display of a ballot measure’s number, title, subject, or logo,” and “[b]uttons, hats,” or “shirts” containing such information); Tex. Elec. Code Ann. §61.010(a) (West 2010) (prohibiting the wearing of “a badge, insignia, emblem, or other similar communicative device relating to a candidate, measure, or political party appearing on the ballot, or to the conduct of the election”). We do not suggest that such provisions set the outer limit of what a State may proscribe, and do not pass on the constitutionality of laws that are not before us. But we do hold that if a State wishes to set its polling places apart as areas free of partisan discord, it must employ a more discernible approach.
The appendix lists thirty-four states prohibiting accessories or apparel in the polling place.
Dissenting, Justice Sotomayor, joined by Justice Breyer, would have certified the issue of the interpretation of the statute to the Minnesota Supreme Court. The Court, in footnote 7, explained its decision not to certify, including that the request came "late in the day," but Sotomayor argued that "certification is not an argument subject to forfeiture by the parties" and is instead a matter of comity. Moreover, she contended that having an interpretation of the statute, including the term "political" (which she noted the Court had "little difficulty discerning its meaning in the context of [other] statutes subject to First Amendment challenges, citing cases), would "obviate the hypothetical line-drawing problems that form the basis of the Court’s decision today."
Thus, the import of Minnesota Voters Alliance v. Mansky is that states can prohibit certain expressive apparel and accessories at the polling place on election day, but the courts must find the statutory definitions sufficiently defined as to be "reasonable."
Thursday, June 7, 2018
Senior Judge Michael M. Baylson (E.D. Pa.) ruled in favor of Philadelphia yesterday in its sanctuary-cities case against the Trump Administration. The court held that the three immigration-enforcement conditions that Attorney General Jeff Sessions imposed on sanctuary cities as conditions of receipt of federal DOJ JAG grants violated federal law and the Constitution.
The ruling goes farther than the Seventh Circuit case also striking the conditions, in that Judge Baylson also ruled Section 1373 unconstitutional. Notably, that portion of the court's decision was based on the Supreme Court's recent ruling in Murphy v. NCAA.
Philadelphia challenged the three conditions that AG Sessions unilaterally imposed on sanctuary cities in exchange for federal JAG grant money--(1) the requirement that local jurisdictions provide ICE officials access to local prisons, (2) the requirement that local jurisdictions notify ICE when they release aliens from local prisons, and (3) the requirement that local jurisdictions certify compliance with 8 U.S.C. Sec. 1373. (1373 says that a local government can't restrict its officers from communicating with ICE about the citizenship or immigration status of a person.)
The court held that the first two conditions amounted to ultra vires conduct not authorized by Congress and violated the separation of powers and the Spending Clause (similar to the Seventh Circuit ruling). The court also held that these conditions were arbitrary and capricious under the Administration Procedure Act (because the government failed to support the putative public-safety reasons for the conditions).
The court went on to strike Section 1373 under the Court's approach in Murphy:
8 U.S.C. Secs. 1373(a) and 1373(b) by their plain terms prevent "Federal, State, or local government entit[ies] or official[s] from" engaging in certain activities. These provisions closely parallel the anti-authorization condition in [the Professional and Amateur Sports Protection Act] which was at issue in Murphy. Specifically, the PASPA provision violated the Tenth Amendment because it "unequivocally dictates what a state legislature may and may not do." Sections 1373(a) and (b) do the same, by prohibiting certain conduct of government entities or officials.
The court said that AG Sessions couldn't condition the receipt of federal funds on compliance with an unconstitutional provision like Section 1373, so the third condition, like the first and second, was also invalid.
Monday, May 14, 2018
The Supreme Court ruled today that federal law prohibiting states from authorizing sports gambling violates the anticommandeering principle. The ruling in Murphy v. NCAA strikes the prohibition the federal Professional and Amateur Sports Protection Act (PASPA) and opens the door to state-authorized sports gambling across the country.
While the ruling is potentially quite significant with regard to sports gambling, it does not restrict Congress from regulating or prohibiting sports gambling directly. Congress could enact a new law doing just that.
As to the constitutional law: The ruling says that the anticommandeering principle applies both when Congress requires states to act (which we already knew), and when Congress prohibits states from acting (which we didn't yet know, at least not for sure). That could have implications in the sanctuary cities litigation, which involves, among other things, the federal prohibition against state and local governments from restricting their officers in cooperating with federal immigration agents.
The case arose when New Jersey challenged the prohibition on state-authorized sports gambling in the PASPA under the anticommandeering principle. New Jersey sought to revoke its law prohibiting sports gambling, but the NCAA sued, arguing that New Jersey's proposed revocation violated the PASPA's provision that forbids a state "to sponsor, operate, advertise, promote, license, or authorize by law or compact . . . a lottery, sweepstakes, or other betting, gambling, or wagering scheme" based on a competitive sporting events and forbids "a person to sponsor, operate, advertise, or promote" those gaming schemes if done "pursuant to the law or compact of a governmental entity." (New Jersey did this once before, but was stopped in the lower courts. The Supreme Court denied cert. in that earlier challenge.) (Importantly, PASPA does not make sports betting a federal crime. Instead, it authorizes the Attorney General and professional and amateur sports organizations to sue to halt violations.) New Jersey countered that PASPA violated the anticommandeering principle insofar as it prohibited the state from repealing its ban on sports betting. The lower courts ruled against the state, but the Supreme Court reversed. Justice Alito wrote for the Court.
The Court first held that New Jersey's repeal fell within PASPA's ban on "authorizing" sports betting: "When a State completely or partially repeals old laws banning sports gambling, it 'authorize[s]' that activity."
The Court then ruled that PASPA's prohibition violated the anticommandeering principle. The Court said that it didn't make a difference whether Congress directed a state to act, or prohibited a state from acting; either way, "state legislatures are put under the direct control of Congress."
The PASPA provision at issue here--prohibiting state authorization of sports gambling--violates the anticommandeering rule. That provision unequivocally dictates what a state legislature may and may not do. And this is true under either our interpretation or that advocated by the respondents and the United States. In either event, state legislatures are put under the direct control of Congress. It is as if federal officers were installed in state legislative chambers and were armed with the authority to stop legislators from voting on any offending proposals. A more direct affront to state sovereignty is not easy to imagine.
It was a matter of happenstance that the laws challenged in New York and Printz commanded "affirmative" action as opposed to imposing a prohibition. The basic principle--that Congress cannot issue direct orders to state legislatures--applies in either event.
The Court said that PASPA's prohibition on state "licensing" of sports betting similarly violates the anticommandeering principle.
Finally, the Court said that PASPA's prohibition on states from "operat[ing]," "sponsor[ing]," or "promot[ing]" sports gambling schemes, its provisions that prohibit a private actor from "sponsor[ing], operat[ing], advertis[ing], or promot[ing]" sports gambling schemes "pursuant to" state law, and its provisions prohibiting the "advertis[ing]" of sports gambling all cannot be severed and therefore go down, as well.
Justice Thomas concurred in full, but wrote separately "to express [his] growing discomfort with . . . modern severability precedents." In particular, Justice Thomas argued that the Court's severability "precedents appear to be in tension with traditional limits on judicial authority."
Justice Breyer concurred, except to the severability holding on the provision regulating private actors.
Justice Ginsburg, joined by Justice Sotomayor and in part by Justice Breyer, dissented. Justice Ginsburg argued that (assuming arguendo that the state-authorization provision amounted to commandeering) the Court improperly failed to sever the prohibition on state and private-party operations, because they can stand alone.
Thursday, May 3, 2018
Ninth Circuit Says California Medical Waste Management Act Violates Dormant Commerce Clause (but Officials get Qualified Immunity)
The Ninth Circuit ruled in Daniels Sharpsmart, Inc. v. Smith that California's Medical Waste Management Act likely violates the Dormant Commerce Clause, but that officials who imposed a fine under the Act enjoy qualified immunity against a money-damages suit.
The case arose when Daniels, a sharps-container developer, shipped its medical waste out of California for disposal. Daniels originally shipped to another state and incinerated the waste, but later switched to states that permitted waste disposal using other methods.
This didn't sit well with California regulators, who sought to enforce the state Act's requirements that all medical waste be treated by incineration and that "[m]edical waste transported out of state shall be consigned to a permitted medical waste treatment facility in the receiving state." Regulators told Daniels that his waste had to be incinerated, even if the law of another state permitted an alternative method, and that Daniels would be penalized it if didn't incinerate all of its biohazardous waste that originated in California. Daniels continued to ship waste out of California and dispose of it in other ways, and the California regulators imposed a hefty penalty. Daniels sued.
The Ninth Circuit ruled that the Act likely violated the Dormant Commerce Clause. The court applied the "direct regulation emanation" of the Dormant Commerce Clause, which forbids a state from regulating transactions that take place across state lines or entirely outside of the state's borders. Referencing circuit precedent, the court wrote:
Rather, California has attempted to regulate waste treatment everywhere in the country, just as it tried to regulate art sales and Nevada tried to regulate rules violations procedures everywhere in the country. Of course, that could also have the effect of requiring Daniels to run afoul of other states' regulation of medical waste disposal within their jurisdictions, if California law directed something different from their requirements.
Therefore, Daniels will likely succeed on its claim that the Department officials' application of the [Act] constitutes a "per se violation of the Commerce Clause." Were it otherwise, California could purport to regulate the use or disposal of any item--product or refuse--everywhere in the country if it had its origin in California.
But the court went on to hold that state officials enjoyed qualified immunity against Daniels's suit for monetary damages. That's because "a reasonable official, who is not knowledgeable about the arcane considerations lurking within the dormant Commerce Clause doctrine, could reasonably, if erroneously, believe that the Department could control what was done with California waste in another state."
The court reversed the lower court on this point, noting that the lower court wrongly applied law "at a high level of generality" when it concluded that "[t]he extraterritoriality doctrine has been clearly established for decades."
Thursday, April 26, 2018
Wednesday, April 4, 2018
The United States Commerce Department's announcement that the 2020 Decennial Census Questionnaire will include a citizenship question, which the census has not included since 1950, continues to provoke litigation. Recall that soon after the late March announcement, California v. Ross challenged the constitutionality of the change as violating the Constitution's requirement of “actual Enumeration” of all people in each state every ten years for the sole purpose of apportioning representatives among the states. U.S. Const. art. I, § 2, cl. 3, and amend. XIV, § 2.
An additional complaint filed in the Southern District of New York, New York v. United States Department of Commerce, raises the same constitutional objection on behalf of seventeen state plaintiffs, the District of Columbia, as well as six cities and the United States Conference of Mayors. The first count of the complaint is based on the "actual enumeration" requirement and avers that adding a citizenship question will "deter participation." The allegations in the complaint regarding the link between a citizenship demand and lower participation interestingly rely on the Census Bureau's own arguments and findings. The complaint alleges that consequences of lower participation is "an undercount" that will not reflect the accurate population of the plaintiffs, effecting their representation in the House of Representatives and the Electors. Two additional counts are based on the Administration Procedure Act, with the second count regarding the government's decision as contrary to the constitution and law including arguments regarding the "actual enumeration" requirement.
Additionally, the NAACP has filed a complaint in the District of Maryland, NAACP v. Bureau of the Census, with one count based on the "actual enumeration" requirement. The NAACP complaint stresses the risks of an undercount of racial and ethnic minorities, and opens thusly:
Article I, Section 2 of the United States Constitution imposes one of the few affirmative obligations on the federal government: to conduct an “actual Enumeration” of all residents every ten years. Despite this duty, the United States has undercounted people of color since the nation’s founding, starting with the decision to treat African American slaves as only three-fifths of a person. The Three-Fifths Clause appeared in the same constitutional provision that mandates a decennial census.
Thursday, March 29, 2018
The Second Circuit ruled that New York's practice of using surplus revenue from highway tolls to fund its canal system did not violate the Dormant Commerce Clause. The ruling means that New York can continue this practice.
The court ruled that Congress specifically approved the practice in the Intermodal Surface Transportation Efficiency Act of 1991. That Act authorizes state authorities to collect highway tolls without repaying the federal government (for federal financial aid to construct and improve highways in the first place) so long as it first used those funds for specified purposes under the Act. If so, then a state could use all excess toll revenues "for any purpose for which Federal funds may be obligated by a State under [Title 23]." This includes "historic preservation, rehabilitation and operation of historic transportation buildings, structures, or facilities (including historic railroad facilities and canals)." A separate provision--a "Special Rule"--paralleled this rule and added specific conditions for the New York State Thruway.
The court said that the ISTEA "permitted the Thruway Authority to allocate excess toll revenues (1) to any transportation facilities under the Thruway Authority's jurisdiction or (2) for any project eligible to receive federal assistance under Title 23." According to the court, this "plain language of the ISTEA manifestly contains . . . 'unmistakably clear' evidence of an intent to authorize the Thruway Authority to use excess highway toll revenues for canal purposes."
Because Congress validly authorized this under its Commerce Clause authority, it can't violate the Dormant Commerce Clause.
Tuesday, March 27, 2018
Who needs a professional license? In California, anyone wishing to be an accountant, acupuncturist, cosmetologist, court reporter, bedding salesperson, landscape architect, pharmacist, teacher, real estate agent, pest control operator, or teacher, among many others. Yet the type of immigration status that should be a prerequisite for obtaining a state professional license has not been consistent, at least until California did implement a remedy. And in New York, with a different array of immigration regulations for professional licensing, a different type of remedy was eventually decided upon.
In her article Professional Licensing and Teacher Certification for Non-Citizens: Federalism, Equal Protection and a State’s Socio-Economic Interests, in Columbia Journal of Race and Law, Professor Janet Calvo analyzes the intersection of Equal Protection doctrine and the Tenth Amendment to argue that states have the constitutional responsibility as well as the constitutional power to remove immigration barriers to state licensing requirements. Distinguishing among categories of immigration status raises equal protection concerns and, as the Second Circuit has held, constitutional violations. Additionally, licensing is a traditional state function which Congress can regulate to some extent but not totally commandeer.
As Calvo argues, California and New York each took a unique path to solving the licensing issue, yet taken together, they offer a map to other states, organizations, and communities seeking to address similar problems.
Tuesday, March 20, 2018
In her opinion in Zervos v. Trump, New York County Supreme Court Justice Jennifer Schecter ruled that the lawsuit for defamation by Summer Zervos against now-President Trump could proceed, denying a motion to dismiss or to stay by Trump based on his presidential status.
Recall that Summer Zervos filed the law suit a few days before Trump was inaugurated. Recall also that one of the major issues was whether or not a sitting president was amenable to suit in state court: In other words, did the rule in the United States Supreme Court's unanimous 1997 decision of Clinton v. Jones holding that then-President Clinton was subject to suit in federal court extend to state court?
Justice Schecter's first paragraph answers the question without hesitation, beginning with a citation to Clinton v. Jones and stating that the case left open the question of whether "concerns of federalism and comity compel a different conclusion for suits brought in state court," but adding "they do not." Her analysis is relatively succinct, beginning with a simple statement: "No one is above the law" and concluding that "In the end, there is absolutely no authority for dismissing or staying a civil action related purely to unofficial conduct because defendant is the President of the United States."
Justice Schecter also denied the motion to dismiss for failure to state a claim and thus discussed the defamation claim which obliquely raises First Amendment issues. (The first 8 pages of the 19 page opinion detail the allegations of the complaint.) The motion to dismiss had essentially argued that Mr. Trump's statements were mere hyperbole. Justice Schecter disagreed:
Defendant--the only person other than plaintiff who knows what happened between the two of them--repeatedly accused plaintiff of dishonesty not just in his opinion but as a matter of fact. He not only averred that plaintiff told "phony stories" and issued statements that were "totally false" and "fiction," he insisted that the events "never happened" and that the allegations were "100% false [and] made up.”
A reader or listener, cognizant that defendant knows exactly what transpired, could reasonably believe what defendant's statements convey: that plaintiff is contemptible because she "fabricated" events for personal gain. . . . . Defendant used "specific, easily understood language to communicate" that plaintiff lied to further her interests . . . His statements can be proven true or false, as they pertain to whether plaintiff made up allegations to pursue her own agenda. Most importantly, in their context, defendant's repeated statements--which were not made through op-ed pieces or letters to the editor but rather were delivered in speeches, debates and through Twitter, a preferred means of communication often used by defendant- -cannot be characterized simply as opinion, heated rhetoric, or hyperbole. That defendant's statements about plaintiff's veracity were made while he was campaigning to become President of the United States, does not make them any less actionable. . . .
Thus, it seems that the lawsuit against the President, now joined by a declaratory judgment suit by Stormy Daniels which we discussed here and since removed to federal, will proceed apace. Assuming, of course, that the President's lawyers do not attempt an interlocutory appeal.
image: Hans Makart, Allegory of the Law and Truth of Representation, circa 1881 via
Thursday, March 15, 2018
The Fifth Circuit earlier this week upheld most of Texas's SB4, the state law banning local jurisdictions from adopting sanctuary-city policies. The ruling means that most of SB4 stays in place and applies to Texas jurisdictions.
The ruling is a victory for Texas, which adopted the measure in order to crack-down on sanctuary cities in the state. It's only preliminary--so goes to the plaintiffs' likelihood of success on the merits, and not (necessarily) the merits themselves--but, given the nature of the (facial challenge) case, is certainly the same as a ruling on the merits.
SB4 has three provisions at issue in the case: (1) the "materially limit" provision, which bans local jurisdictions from "prohibit[ing] or materially limit[ing]" an officer from asking a lawfully detained individual's immigration status, from sharing that status with federal agencies, and from assisting federal agencies in enforcement; (2) the "detainer" provision, which requires local officers to comply with federal immigration detainers; and the "endorsement" provision, which prohibits local officers from endorsing sanctuary policies.
Here's what the court said:
The "Materially Limit" Provision
The court rejected the plaintiffs' claims that federal law preempted these prohibitions and that "materially limit" is unconstitutionally vague. As to preemption, the court said that federal law didn't field-preempt, because "SB4 and the federal statutes involve different fields": "Federal law regulates how local entities may cooperate in immigration enforcement; SB4 specifies whether they cooperate." The court said that it "could perhaps define the field broadly enough to include both SB4 and federal legislation, but the relevant field should be defined narrowly." It also said that Congress didn't state a clear purpose to field-preempt. Finally, the court said that the Tenth Amendment points against field preemption:
The plaintiffs acknowledge that the Tenth Amendment prevents Congress from compelling Texas municipalities to cooperate in immigration enforcement. Congress could not pass a federal SB4. But if that is so, it seems impossible that Congress has occupied the field that SB4 regulates.
The court also held that the requirements weren't conflict preempted, because, under the requirements, local officers could comply with both federal law and SB4. In particular, the court said that any authority (or requirement) that SB4 imposed upon local officers did not conflict with the allowable cooperation between local and federal officers under federal immigration law, and the authority of federal immigration officials.
Finally, the court held that "materially limit" isn't unconstitutionally vague, especially in the context of this facial challenge.
The "Detainer" Provision
The court held that this provision, which requires local officers to notify federal officials when they release an alien and to maintain custody of the alien up to 48 hours after the preexisting release date so that DHS can assume custody, did not violate the Fourth Amendment on its face (although the court didn't, and couldn't, say whether it might violate the Fourth Amendment in any particular case).
The "Endorse" Prohibition
The court held that SB4's provision that a "local entity or campus police department" may not "endorse a policy under which the entity or department prohibits or materially limits the enforcement of immigration laws" violated the First Amendment. The court rejected a narrowing construction of "endorse" offered by the state. The court noted, however, that "[t]his conclusion does not . . . insulate non-elected officials and employees, who may well be obliged to follow the dictates of SB4 as 'government speech.'" But this issue wasn't before the court (because the plaintiffs "do not represent the public employees putatively covered by Garcetti and the government speech doctrine.")
Wednesday, March 7, 2018
The Justice Department filed suit yesterday against California seeking declaratory and injunctive relief against the enforcement of three state provisions that, says DOJ, frustrate the federal government's enforcement of immigration laws. The government argues that the three state provisions violate the Supremacy Clause and thus are preempted and invalid.
AG Sessions has previously moved to clamp down on sanctuary jurisdictions through withholding of the federal JAG Grant. This is the first time DOJ has sued a jurisdiction for sanctuary policies.
The first provision, AB 450, prohibits private employers in the state from providing consent to federal immigration officers to search a workplace or employment records without a subpoena or warrant. DOJ contends that this "interfer[es] with the enforcement of the INA and IRCA's prohibition on working without authorization," and thus is preempted.
The next one, AB 103, requires the state AG "to engage in reviews of county, local, or private locked detention facilities in which noncitizens are being housed or detained for purposes of civil immigration proceedings in California" and to examine the "due process provided" to civil immigration detainees. DOJ argues that this "commands an improper, significant intrusion into federal enforcement of the immigration laws."
The final provision, SB 54, prohibits state and local law enforcement officials (other than employees of the California Department of Corrections) from "[p]roviding information regarding a person's release date or responding to requests for notification by providing release dates or other information." The provision also requires that federal officials get a "judicial warrant or judicial probable cause determination" before the state or locality may transfer an immigrant to DHS for enforcement. DOJ says this about these requirements:
These provisions impermissibly prohibit even the most basic cooperation with federal officials. As noted above, federal law contemplates that criminal aliens in state custody who may be subject to removal will complete their state or local sentences first before being detained by the United States, but that federal immigration detention for immigration proceedings or for removal will begin upon the alien's release from state custody. Additionally, federal law contemplates that DHS will be able to inspect all applicants for admission and take all appropriate action against those found to be inadmissible to the United States, even those that may have been transferred to the custody of state and local law enforcement pending such a state and local prosecution. And, to facilitate coordination between state and local officials and the United States, Congress expressly prohibited any federal, state, or local government entity or official from prohibiting, or in any way restricting, any government entity or official from sending to, or receiving from, DHS "information regarding the citizenship or immigration status of an individual."
[The transfer restriction] also conflicts with federal law, which establishes a system of civil administrative warrants as the basis for immigration arrest and removal, and does not require or contemplate use of a judicial warrant for civil immigration enforcement.
Thursday, February 22, 2018
The Sixth Circuit ruled in Byrd v. Tennessee Wine & Spirits Retailers Ass'n that a state law requiring two-year state residency--and ten-year residency for renewal--for a retailer-alcoholic-beverage license violated the Dormant Commerce Clause.
The ruling, with a partial concurrence and partial dissent, further exposes tensions between the Commerce Clause and the Twenty-First Amendment in the Court's treatment of discriminatory state alcohol regulations.
Tennessee's law says that alcohol retailers have to have a license. In order to get one, they have to show that an individual retailer was a state resident for two years, or that a corporate retailer was completely owned by two-year residents. The residency requirement shoots up to ten years for license renewals.
The Sixth Circuit struck the requirements. The court said that the requirements were facially discriminatory against out-of-state economic interests, and that the state failed to show that nondiscriminatory alternative regulations could achieve the state's goals of protecting the health, safety, and welfare of state residents and using a higher level of oversight and control over liquor retailers.
The court noted a split in the circuits as to the interplay between the Commerce Clause and the Twenty-First Amendment under Bacchus Imports v. Dias and Granholm v. Heald. The ruling deepens that split.
Judge Sutton argued in partial dissent that "these modest requirements" were supported by "the text of the Twenty-first Amendment, the original understanding of that provision's relationship to the Commerce Clause, modern U.S. Supreme Court precedent, and a recent Eighth Circuit decision." Judge Sutton agreed with the majority, however, as to the application of the two-year residency requirement to 100% of a retailer's stockholders and as to the ten-year residency requirement for a renewal.
Wednesday, January 24, 2018
The Justice Department today sent letters to 23 sanctuary jurisdictions, requesting certain additional documents to show that they are not preventing their officers from sharing immigration information with the feds, in violation of 8 U.S.C. Sec. 1373.
The letters say that Justice will subpoena the documents if a jurisdiction declines to share. The letter outlines other consequences, too:
Should the Department determine your jurisdiction is out of compliance with section 1373, the Department may, as detailed in your award documents, seek return of your FY 2016 grant funds, require additional conditions for receipt of any FY 2017 Byrne JAG funding for which you have applied, and/or deem you ineligible for FY 2017 Byrne JAG funds.
Justice's moves to clamp down on sanctuary jurisdictions have drawn lawsuits by many of those jurisdictions. They argue, among other things, that Section 1373 amounts to unconstitutional commandeering of local officers, that Justice's conditions on their grants fail the conditioned-spending test under South Dakota v. Dole, and that Justice has no authority to impose conditions on federal grants without Congress's say so. We last posted on the suits here.
Thursday, January 18, 2018
The Seventh Circuit ruled that former Illinoisans who now live in Puerto Rico, Guam, and the Virgin Islands lacked standing to challenge the federal Uniformed and Overseas Citizens Absentee Voting Act and lost on the merits in their claims against Illinois after the state rejected their requests for absentee-voter ballots.
The ruling means that former Illinoisans who reside in these territories won't receive an absentee-voter ballot from the state, unless Illinois changes its law.
The plaintiffs, former residents of Illinois but now residents of the territories, sued when Illinois denied them absentee-voter ballots for federal elections in Illinois. They claimed that the UOCAVA and Illinois law defined their territories as part of the United States and thus prohibited them from getting absentee ballots as overseas voters. They claimed that this violated equal protection and their right to travel.
The Seventh Circuit ruled that the plaintiffs didn't even have standing to challenge the UOCAVA. That's because while the UOCAVA defines "the United States" to include these territories, it doesn't prohibit Illinois from providing absentee ballots to the plaintiffs. Illinois law does that. As a result, the court said that the plaintiffs couldn't challenge the federal law, although they could still challenge state law.
As to state law, the court said that Illinois's classification didn't violate equal protection and its denial of absentee ballots didn't violate the right to travel. The court said that the plaintiffs have no fundamental right to vote in federal elections--"absent a constitutional amendment, only residents of the 50 States have the right to vote in federal elections"--and no claim to heightened scrutiny. The court held that Illinois's distinction between Puerto Rico, Guam, and the Virgin Islands (on the one hand) and the Northern Marianas and American Samoa (on the other, where former Illinoisans can get an absentee ballot) passed rational basis review, because at the time that Illinois enacted the distinction, "these two territories were . . . more similar to foreign nations than were the incorporated territories where the plaintiffs reside." (The court said it was OK to look at the state's justification at the time of the distinction, in 1979, instead of now, because "even if . . . the Northern Marianas and American Samoa became more integrated into the United States, it would not help the plaintiffs [who are] injured specifically because Illinois defines their resident territories as within the United States.")
The court summarily rejected the plaintiffs' right-to-travel argument as "borderline frivolous."
Saturday, January 13, 2018
In a very brief opinion in Niang v. Caroll, a unanimous panel of the Eighth Circuit affirmed a district judge's grant of summary judgment to Missouri against a challenge to the state's licensing requirements for "African-style hair braiders." In short, the Missouri statutes require a license for barbers and cosmetologists that is granted only to those who complete a "costly and time-intensive training course - - - 1,000-hours for barbering and 1,500-hours for hairdressing" and passage of exam. Moreover, Missouri conceded that "only about 10 percent of the required training courses is relevant to African-style braiders, and that almost all the exams do not test on braiding."
The Eighth Circuit applied the most deferential of rational basis standards. In rejecting the challengers' argument that the license requirement was not rationally related to any legitimate government interest, the court not only found that the state interests of protecting consumers and ensuring public health and safety were legitimate, but also recognized two other interests supplied by the district judge: stimulating more education on African-style braiding and incentivizing braiders to offer more comprehensive hair care. As to the means chosen, the Eighth Circuit found that it was sufficiently reasonable: "the fit between the licensing requirement and the State’s interest is imperfect, but not unconstitutionally so."
The Eighth Circuit also rejected the Equal Protection argument focused on the classification between braiders and barbers/cosmetologist, finding that the statutory definitions of "hair dressing" included braiding.
Lurking beneath the litigation, of course, is the racial classification, but this remains unaddressed. Indeed, it would be a difficult argument on which to prevail absent other facts.
For Constitutional Law professors looking for a good example of "anything goes" rational basis as exemplified by Railway Express Agency v. New York (1949) (which the Eighth Circuit does not cite), as well as Dandridge v. Williams (1970) and Heller v. Doe (1997), both of which the court does cite, this brief opinion is noteworthy.
For persons who want to practice the profession of braiding without being subject to onerous and irrelevant licensing requirements, the remedy may have to be in the legislature.
[image by Chidi "Lex Ash" Ashimole via]
Thursday, January 11, 2018
Recall the lawsuit by Summer Zervos against Donald Trump for defamation. It's filed in New York state court and Trump has argued that Clinton v. Jones, the 1997 case in which the United States Supreme Court held that President Clinton was not immune from being sued, should not apply to state court proceedings.
In an amicus brief filed in Zervos v. Trump, and available on ssrn, three law professors who submitted an amicus brief in Clinton v. Jones in support of a plaintiffs' right to sue the sitting President in federal court,now argue that the rule should apply to state court as well. The professors - - - Stephen Burbank, Richard Parker, and Lucas Powe, Jr. - - - argue that a President should be amenable to suit in state as well as federal court, with appropriate docket-management accommodations made in light of the demands on a President's time and attention.
At issue is footnote 13 of Clinton v. Jones which might be read to distinguish state court proceedings from the federal one involved in Clinton:
Because the Supremacy Clause makes federal law “the supreme Law of the Land,” Art. VI, cl. 2, any direct control by a state court over the President, who has principal responsibility to ensure that those laws are “faithfully executed,” Art. II, §3, may implicate concerns that are quite different from the interbranch separation of powers questions addressed here. Cf ., e.g. , Hancock v. Train , 426 U.S. 167, 178 -179 (1976); Mayo v. United States , 319 U.S. 441, 445 (1943). See L. Tribe, American Constitutional Law 513 (2d ed. 1988) (“[A]bsent explicit congressional consent no state may command federal officials . . . to take action in derogation of their . . . federal responsibilities”).
The amicus brief contends that the footnote is best read as limited to the problem of direct control of presidential activities by a state court. That, they argue, is not the Zervos suit, since Zervos' lawsuit has nothing to do with the president's duties. They conclude that the best reading of the Constitution, the requirements of federalism and the rule of law, and the Supreme Court's decision in Clinton v. Jones direct that state courts be permitted to entertain suits against sitting Presidents for conduct arising from their pre-Presidential conduct, just as federal courts can.
Judge Jennifer Schecter has yet to issue a ruling.
Friday, January 5, 2018
In a Memorandum on January 4, Attorney General Jeff Sessions has rescinded previous Department of Justice instructions to United States Attorneys relating to enforcement of federal laws criminalizing marijuana as "unnecessary" in favor of a well-established rule of general guided discretion. The DOJ press release describes it as a "return to the rule of law," but it arguably makes the legal rules more subject to discretion and even more unclear. The legalization of marijuana by states while the federal government maintains marijuana on its schedule of controlled substances pertinent to criminal laws presents complicated problems of federalism and preemption.
An excellent primer on these issues is Lea Brilmayer's article A General Theory of Preemption: With Comments on State Decriminalization of Marijuana, appearing in a recent symposium on Marijuana and Federalism in Boston College Law Review.
Brilmayer does provide some background on the marijuana controversies, including a discussion of the Supreme Court's failure to provide clear answers on the state-federal conflicts regarding marijuana. But, as her title indicates, marijuana is an example rather than a primary focus. She explains the principles and open questions in the doctrines of vertical and horizontal preemption, then uses concrete examples involving marijuana. Her ultimate conclusion is that there is a weak case for preemption in the marijuana decriminalization context.
This is a terrific introduction for understanding the issues surrounding the issues raised by the Sessions memo regarding state marijuana decriminalization. At 35 pages, with accessible hypotheticals, this could be a great assignment for Constitutional Law classes this semester.
Monday, December 4, 2017
Preview of Masterpiece Cakeshop Argument on First Amendment Challenge to Anti-Discrimination Statute
Set for oral argument Tuesday, December 5, 2017, the high visibility case of Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission can be seen as a clash of constitutional principles of individual conscience vs. equality, or as a federalism case, or as part of the backlash to LGBTQ rights, or as part of the rise of religiously-motivated challenges to secular laws.
Recall that a cake-maker seeks the right to refuse to make a cake for a same-sex wedding, asserting an exemption from Colorado's anti-discrimination law on the basis of the First Amendment's Free Speech and Free Exercise Clauses. In the state proceedings, the Colorado Administrative Law Judge (ALJ) rejected the contention that "preparing a wedding cake is necessarily a medium of expression amounting to protected 'speech,' " or that compelling the treatment of "same-sex and heterosexual couples equally is the equivalent of forcing" adherence to “an ideological point of view.” The ALJ continued that while there "is no doubt that decorating a wedding cake involves considerable skill and artistry," the "finished product does not necessarily qualify as 'speech.'" On the Free Exercise claim, the ALJ rejected the contention that it merited strict scrutiny, noting that the anti-discrimination statute was a neutral law of general applicability and thus should be evaluated under a rational basis test. A Colorado appellate court affirmed in a lengthy opinion, rejecting the First Amendment claims.
On the First Amendment speech claim, the initial hurdle for the cakemaker is establishing that the cake constitutes speech. The cakemaker argues that he is a "cake artist." The Court has held that symbolic speech needs to convey a particularized and understood message, Spence v. Washington (1974), but that includes the "unquestionably shielded painting of Jackson Pollock, music of Arnold Schonberg, or Jabberwocky verse of Lewis Carroll," Hurley v. Irish American Gay Group of Boston (1995). The cakemaker has also argued that the cake itself is so central to the wedding as to be a participant. Thus, the cakemaker as business owner should be able to refuse to make cakes for events with which he disagrees otherwise his speech is being compelled, akin to the landmark flag salute case of West Virginia Bd. of Ed. v. Barnette (1943).
On the religious claim, the cakemaker essentially argues that the Colorado anti-discrimination law is not a law of neutral and general applicability because it includes sexual orientation as a protected ground and therefore targets (certain) religions, and thus strict scrutiny applies.
On both claims, the oral arguments will most likely include explorations of the slippery slopes. If the cake is art, then what about restaurant dinners? Photography? Bed and breakfasts? If the cake is akin to a participant in the wedding celebration, then would the rule extend to birthdays? And can the exemption for individual conscience be limited to sexual orientation? What about race? Ethnicity or national origin? Gender?
There are a little less than 50 amicus briefs on each side. The Court has allowed the Solicitor General of the United States to participate in oral argument on the side of the cakemaker, and for the respondents (the Colorado Civil Rights Commission and the original would-be customers) to both participate.
The case has attracted extensive commentary (here's a good round-up by Edith Roberts on SCOTUSBlog) and there is certainly much more to come.