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.
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."
Wednesday, October 11, 2017
The Ninth Circuit ruled yesterday that California's prorator license law likely violates the Dormant Commerce Clause. In the same ruling, the court held that California's mandatory disclosure requirements likely did not violate the First Amendment, and that the case did not warrant Younger abstention. The court sent the case back for further proceedings.
The case, Nationwide Biweekly v. Owen, arose when California prosecutors and regulators targeted Nationwide Biweekly Administration for fraud investigations involving one of its mortgage-payoff products. Here's how it works: a consumer would pay to Nationwide his or her monthly mortgage bill every two weeks, instead of paying to the lender directly every month. Nationwide would then pay the lender every month. This meant that a consumer would pay to his or her lender, through Nationwide, an extra monthly payment each year and thus pay off the loan sooner. Nationwide advertised the product as a "100% savings," but failed adequately to disclose the discount rate (based on the time-value of money) and fees for the product. So what appears to be a cost-free (and thus savings-only) product in fact is not cost-free.
The Monterey County District Attorney's Office sent Nationwide a letter about the practice and alleged that Nationwide was violating several California laws. In particular, the DA's office wrote that Nationwide was violating two provisions that required it to say that it's not affiliated with the lender in any solicitation to consumers for its product. The letter also said that Nationwide was violating California's "prorator" registration law, which required a "prorator" (a "person who, for compensation, engages in whole or in part in the business of receiving money or evidences thereof for the purpose of distributing the money or evidences thereof among creditors in payment or partial payment of the obligations of the debtor") to obtain a license. But under California law, such a license is only available to a corporation if the corporation is "organized under the laws of this State for that purpose." The Commissioner later sent Nationwide a letter notifying the corporation that it was investigating Nationwide's unlicensed business activity.
Nationwide filed suit in the Northern District, seeking to enjoin enforcement of the disclosure requirements by the DA. A Nationwide subsidiary later filed suit in the Northern District seeking to enjoin enforcement of the registration requirement against the Commissioner. The court rejected Nationwide's motion for a preliminary injunction in both cases, and Nationwide filed notices of appeal.
About a month after the opening appellate briefs were filed, the DA and the Commission filed a joint enforcement suit in California Superior Court. The district court dismissed both federal cases under Younger, and Nationwide appealed.
The Ninth Circuit ruled first that Younger abstention was not appropriate, because "before the date that the state case was filed, the district court had already conducted proceedings of substance on the merits." In particular, the court "spend a substantial amount of time evaluating the merits of the cases in considering and denying (in a detailed and reasoned order) Nationwide's motions for preliminary injunctions."
The court went on to hold that Nationwide was unlikely to succeed on its First Amendment claim. It ruled that under Zauderer, the "required disclaimers--short, accurate, and to the point--are reasonably related to California's interest in preventing . . . deception."
Finally, the court said that California's licensing requirement likely violated the Dormant Commerce Clause, because California's requirement makes in-state incorporation a prerequisite to getting a license to engage in interstate commerce.
Judge Montgomery argued in dissent that the federal proceedings were still at an embryonic stage and the court should have abstained under Younger.
Thursday, September 21, 2017
The Seventh Circuit upheld Chicago's "puppy mill" ordinance, which limits the sources from which city-licensed pet stores may obtain certain pets for resale, against a challenge under the Illinois Constitution's home-rule provision and the federal dormant Commerce Clause. The ruling leaves the ordinance in place.
Chicago's ordinance says that pet retailers in the city "may offer for sale only those dogs, cats, or rabbits" obtained from an animal control or care center, pound, or kennel operated by local, state, or federal government or "a humane society or rescue organization." The ordinance means that pet stores can't get their animals from large, mill-style breeders. Chicago adopted the law in order to protect against the "economic and emotional burdens for pet owners and [the] financial costs on the City as owners abandon their physically or emotionally challenged pets or surrender them to the [city shelter]."
Two Chicago pet stores and a Missouri dog breeder sued, arguing that the ordinance exceeded Chicago's authority under the Illinois Constitution's home-rule provision and violated the federal dormant Commerce Clause.
The Seventh Circuit disagreed. As to the home-rule argument, the court said that the Illinois Constitution permits Chicago to regulate in an area, concurrently with the state, so long as the General Assembly doesn't "specifically limit" it or "specifically declare the State's exercise to be exclusive." Because state law doesn't restrict, but actually preserves, municipal power to regulate animal care and welfare, the court said that Chicago's ordinance doesn't exceed its home-rule authority.
As to the dormant Commerce Clause, the court said that it didn't even apply, because Chicago's ordinance doesn't discriminate against interstate commerce. The court ruled that circuit law said that a state or local law that doesn't discriminate on its face or in effect doesn't even implicate the dormant Commerce Clause. "No disparate treatment, no disparate impact, no problem under the dormant commerce clause." The court therefore declined to apply Pike balancing, and ruled that the ordinance easily satisfied the default rationality review.
Judge Hamilton dissented in part, arguing that the court should have applied Pike balancing, because Dep't of Revenue of Kentucky v. Davis and United Haulers Ass'n v. Oneida-Herkimer Solid Waste clarified that "even nondiscriminatory burdens on commerce" are subject to Pike balancing and "may be struck down on a showing that those burdens clearly outweigh the benefits of a state or local practice." Judge Hamilton also argued that the majority applied an overly rigid pleading standard by not crediting the plaintiffs' allegations in the complaint that Chicago's ordinance would disparately impact out-of-staters.
Sunday, September 17, 2017
The Ninth Circuit ruled on Friday that the federal Poultry Products Inspection Act did not preempt California's ban on force-feeding ducks and geese for foie gras production. The ruling means that California's ban stays on the books; this is definitely one for the birds.
In 2004, California joined a growing list of countries that ban force-feeding ducks and geese to produce foie gras. The California law doesn't ban foie gras itself, just the force-feeding method of production. Foie gras producers sued, arguing that California's ban was preempted by the federal Poultry Products Inspection Act.
The Ninth Circuit disagreed. The court said that the federal law didn't expressly preempt the California ban, because the federal law's prohibition on states from imposing "ingredient requirements" that are "in addition to, or different than" the PPIA or its regs applied to "the physical composition of poultry products," and not the way animals are raised or how they're fed (which the California ban covers). According to the court, California law
does not require that foie gras be made with different animals, organs, or physical components. Nor does it require that foie gras consist of a certain percentage of bird liver. It simply seeks to prohibit a feeding method that California deems cruel and inhumane. [The law] therefore addresses a subject entirely separate from any "ingredient requirement": how animals are treated long before they reach the slaughterhouse gates.
Moreover, the court said that the PPIA didn't field-preempt California law, because the PPIA doesn't occupy the field (and in fact allows for "extensive" state regulation). It also said that the PPIA didn't obstacle preempt California law, because California law doesn't interfere with the federal food-regulation scheme and its purposes.
Unless and until producers come up with a different way to make foie gras, this ruling will keep it out of California.
Saturday, September 16, 2017
Judge Harry D. Leinenweber (N.D. Ill.) yesterday enjoined two conditions nationwide, but declined to enjoin a third, that AG Sessions placed on a federal grant program to clamp down on sanctuary cities. The order came in the lawsuit that Chicago filed against Session.
The ruling is a partial victory for the City and partial victory for the government. It partially halts two key conditions that AG Sessions placed on Byrne Grant recipients, but upholds a third, requiring certification of compliance with Section 1373.
Recall that AG Sessions placed three conditions on a municipality's receipt of federal funds under the Byrne Memorial Justice Assistance Grant Program: (1) that a state law or practice is in place to honor a request by DHS to provide advance notice of any scheduled release date and time for a particular alien (the "notice" condition); (2) that a state law or practice permits federal agents to have access to any correctional facility to meet with aliens and interrogate them (the "access" condition); and (3) that a local government submit a certification of compliance with 8 U.S.C. Sec. 1373, the federal law prohibiting state and local laws and practices that restrict state and local officials from sending to, or receiving from, federal officials information regarding the citizenship or immigration status of any individual, and prohibiting officials from maintaining such information or exchanging it with federal officials. (the "certification" condition).
The conditions ran up against Chicago's "Welcoming Ordinance." That Ordinance prohibits any "agent or agency" from "request[ing] information about or otherwise investigat[ing] or assist[ing] in the investigation of the citizenship or immigration status of any person unless such inquiry or investigation is required by [state law], federal regulation, or court decision." It goes on to forbid any agent or agency from "disclos[ing] information regarding the citizenship or immigration status of any person."
So Chicago sued Sessions, arguing that all three conditions were unconstitutional and unlawful.
Judge Leinenweber agreed in part and disagreed in part. As to the notice and access conditions, the court said that Sessions lacked statutory authority and exceeded his power to implement these conditions. In particular, the court held that only Congress could impose these conditions, or authorize the AG to do so, and that the statutory scheme in place didn't do that. Because the court ruled on statutory grounds, it declined to rule on the constitutionality of those two provisions.
But in contrast to its ruling on the notice and access conditions, the court held that Chicago did not show a likelihood of success on the merits of its challenge to the certification condition. The court held that this condition was authorized by Congress under the Byrne Grant statute, which says that a recipient must certify that it's in compliance "with all provisions of this part and all other applicable Federal laws" (emphasis added). The court said that Section 1373 fell into that latter category, "all other applicable Federal laws."
Moreover, it held that the certification condition didn't violate the Spending Clause and the anti-commandeering principle. In particular, the court said that Section 1373 doesn't compel Chicago to do anything; instead, it merely forbids it from doing something. The court said that the anti-commandeering principle only prohibits the federal government from requiring states or state officials to act, not from prohibiting them from acting, so Section 1373 doesn't violate it.
Without a doubt, Section 1373 restricts the ability of localities to prohibit state or local officials from assisting a federal program, but it does not require officials to assist in the enforcement of a federal program. . . . Because no case has gone so far as to prohibit the federal government from restricting actions that directly frustrate federal law, the Court finds that Congress acts constitutionally when it determines that localities may not prevent local officers from voluntarily cooperating with a federal program or discipline them for doing so.
But the court went on to recognize that Section 1373 raises an unanswered constitutional question: Does the provision commandeer insofar as it prevents local governments from disciplining an employee for spending time assisting in the enforcement of federal immigration law? The court punted, leaving that novel question for appeal:
[B]y leaving it up to local officials whether to assist in enforcement of federal immigration priorities, the statute may effectively thwart policymakers' ability to extricate their state or municipality from involvement in a federal program. . . . Here, we follow binding Supreme Court precedent and the persuasive authority of the Second Circuit, neither of which elevates federalism to the degree urged by the City here. A decision to the contrary would require an expansion of the law that only a higher court could establish.
Thursday, August 31, 2017
Judge Orlando Garcia (W.D. Tx.) yesterday issued a preliminary injunction, in City of El Cenizo v. Texas, the case testing the constitutionality of Texas's anti-sanctuary cities law. The ruling temporarily halts key portions of the law; it's a victory for the plaintiffs.
But it's also preliminary--and so goes to the plaintiffs' likelihood of success on the merits, and not the merits themselves--and is sure to be appealed.
In short, the ruling temporarily halts the provisions prohibiting local governments from preventing officers from assisting or cooperating with federal authorities, "endorsing" sanctuary policies, and adopting or enforcing policies that "materially limit" enforcement of immigration laws, and a provision requiring law enforcement agencies to "comply with, honor, and fulfill" any detainer request by ICE. Other provisions of the law remain effective.
Here's a more complete run-down:
Prohibition on Preventing Communication
Section 752.053(b) prohibits local departments and local entities from preventing their employees from obtaining certain information about the immigration status of a detainee, maintaining that information, and sharing it with federal and state authorities. In particular, the provision prohibits local governments from preventing their employees from:
(1) Inquiring into the immigration status of a person under a lawful detention or under arrest.
(2) With respect to information relating to the immigration status, lawful, or unlawful, of any person under a lawful detention or arrest, including information regarding the person's place of birth:
a. Sending the information to or requesting or receiving the information from [USCIS], [ICE], or another relevant federal agency;
b. Maintaining the information; or
c. Exchanging the information with another local entity or campus police department or a federal or state governmental entity.
(3) Assisting or cooperating with a federal immigration officer as reasonable or necessary, including providing enforcement assistance.
(4) Permitting a federal immigration officer to enter and conduct immigration enforcement activities.
The court said that the inquiry provision under (b)(1) and the information-sharing provision under (b)(2) were not preempted under the Immigration and Naturalization Act (but the court emphasized that the inquiry under (b)(1) could take place only during lawful detention or arrest).
But on the other hand, the court held that the enforcement-assistance-provision in (b)(3) was preempted (field and conflict), because federal law provides for "exacting requirements" for state and local officers to perform the functions of immigration officials--requirements that the state cannot circumvent through a law like (b)(3).
Section 752.053 says that a local entity (including an officer or employee of a division) or campus police department may not "adopt, enforce, or endorse a policy under which the entity or department prohibits or materially limits the enforcement of immigration laws . . . ." A separate section provides for enforcement, including civil penalties and removal from office upon a violation, which could be shown "with evidence, including evidence of a statement of a public officer."
The court said that this provision violated free speech. The court held that "endorse" was unconstitutionally overbroad and vague, and that the provision constituted illegal viewpoint discrimination (because it banned speech on one side of the issue, but not the other).
Prohibitions on Local Pattern or Practice Limiting Enforcement
Other sections of SB 4 prohibit localities from adopting a "pattern or practice" that "materially limit[s]" the enforcement of immigration laws, or that "materially limit[s]" officers from "assisting or cooperating" with a federal immigration officer "as reasonable or necessary . . . ."
The court said that "materially limit" is unconstitutionally vague on its face, even if other portions of the provisions were not, including the enumerated list of specifically prohibited activities in Section 752.053(b), discussed above.
Detainer Requests and Detention
Yet other sections, and some in Section (b), above, require local entities to fulfill all ICE detainer requests, and, as described above, prohibit local governments from preventing officers from inquiring as to detainees' immigration status.
The court said that ICE-detainer provisions violated the Fourth Amendment, because they "mandate that local officials effect seizures requested by ICE [without suspicion of a crime] while prohibiting those officials from making an independent, particularized assessment of whether probable cause of a crime exists to support that seizure in every case . . . ."
But as to the prohibition on preventing officers from inquiring into a detainee's immigration status, the court ruled that "it is possible to construe [this] to avoid violating the Fourth Amendment," and therefore that the plaintiffs failed to show that they were likely to succeed on the merits.
Wednesday, August 16, 2017
The State of California earlier this week joined Chicago and San Francisco in suing the federal government over DOJ's "sanctuary cities" policy. Our latest post, on Chicago's suit, is here.
California argues that its laws do not violate Section 1373 (they only limit detention beyond the scheduled release date in certain circumstances and require notification to the detainee of any ICE detention or interview request); that only Congress (and not DOJ) has authority to impose the Section 1373-condition on federal grants; that the condition doesn't provide clear notification to the state; and that DOJ's condition is unconstitutional (because it could require detention for 48 hours, and could violate the Fourth Amendment).