Tuesday, May 16, 2017
The Supreme Court ruled yesterday that the federal scheme covering service-member retirement and disability pay preempts a state court divorce decree that granted the former spouse of a retired service-member a portion of his disability benefits.
The ruling in Howell v. Howell settles a split in the state courts.
The case involves the way that federal law provides for veterans' retirement and disability pay, and the way that state courts can divide that pay in a divorce. Under federal law, a qualified veteran receives taxable retirement pay. A qualified veteran can also receive nontaxable disability pay. But if a veteran opts to receive disability pay, the disability pay off-sets his or her retirement pay dollar for dollar, so that the total amount of pay remains the same. Still, most veterans who qualify for disability pay opt for disability pay, because it's not taxed.
Under the federal Uniformed Services Former Spouses' Protection Act of 1982, a state may treat a veteran's retirement pay as divisible property in a divorce. But the Act explicitly excludes disability pay from divisible retirement pay. The Supreme Court ruled in Mansell v. Mansell that a state court cannot divide disability pay in a divorce when the veteran received both retirement pay and disability pay before the divorce. (The Court held that the Act preempted a state court ruling to the contrary.) Howell tested whether the Act compelled this same result when a veteran opted for disability pay well after the divorce. (The difference matters, because the spouse in Howell would take a cut in total payments if the same rule applied when the veteran spouse opted for disability pay after the divorce.)
The unanimous Court (Justice Gorsuch recused) held that the same rule applied, whether the veteran spouse opted for disability pay before the divorce or after. The Court said that Mansell dictated the result, and that the different timing didn't matter: "the temporal difference highlights only that John's military retirement pay at the time it came to Sandra was subject to later reduction (should John exercise a waiver to receive disability benefits to which he is entitled)."
The Court also rejected the theory that the state court could "reimburse" or "indemnify" the spouse, rather than outright dividing the disability pay: "The difference is semantic and nothing more. . . . Regardless of their form, such reimbursement and indemnification orders displace the federal rule and stand as an obstacle to the accomplishment and execution of the purposes and objectives of Congress." (Justice Thomas concurred but wrote separately to disagree with this latter portion of the ruling--on "purposes and objectives" pre-emption. "As I have previously explained, '[t]hat framework is an illegitimate basis for finding the pre-emption of state law.'")
The Court recognized the "hardship" that this result may "work on divorcing spouses," and noted that state courts might take this into account when it calculates the need for spousal support.
Friday, April 21, 2017
In its opinion in CTIA - The Wireless Ass'n v. City of Berkeley, a panel of the Ninth Circuit rejected First Amendment and preemption challenges to an ordinance requiring retailers to provide notices to consumers about their cell phone purchase. The notice, to be on a poster or handout, with the seal of the city, must read:
The City of Berkeley requires that you be provided the following notice:
To assure safety, the Federal Government requires that cell phones meet radiofrequency (RF) exposure guidelines. If you carry or use your phone in a pants or shirt pocket or tucked into a bra when the phone is ON and connected to a wireless network, you may exceed the federal guidelines for exposure to RF radiation. Refer to the instructions in your phone or user manual for information about how to use your phone safely.
As the notice implies, the FCC disclosures required to be included with the phone are similar if more extensive.
Affirming the district judge, the divided Ninth Circuit panel found that the required notice did not violate the First Amendment. As a compelled disclosure in a commercial context, the choice of standards was between the commercial speech test of Central Hudson Gas & Elec. Corp. v. Pub. Serv. Comm’n of New York (1980) or the more lenient test for disclosure of Zauderer v. Office of Disciplinary Counsel of the Supreme Court of Ohio (1985). Writing for the majority, Judge William Fletcher found that the Zauderer test was appropriate, despite the fact that the disclosure did not involve "consumer deception." Judge Fletcher agreed with "sister circuits that under Zauderer the prevention of consumer deception is not the only governmental interest that may permissibly be furthered by compelled commercial speech," citing the D.C. Circuit's en banc opinion in American Meat Institute v. U.S. Department of Agriculture. Judge Fletcher's opinion reasoned that the Zauderer's language that the disclosure be “uncontroversial” should not be over-emphasized:
Given that the purpose of the compelled disclosure is to provide accurate factual information to the consumer, we agree that any compelled disclosure must be “purely factual.” However, “uncontroversial” in this context refers to the factual accuracy of the compelled disclosure, not to its subjective impact on the audience. This is clear from Zauderer itself.
Applying the deferential Zauderer standard, the court again confronted whether the disclosure was "purely factual" as well as being reasonably related to a substantial governmental interest. Judge Fletcher's opinion concluded the mandated notice was "literally true," based on FCC findings. The court rejected CTIA's argument that while it might be "literally true," the statement was "inflammatory and misleading." Judge Fletcher analyzed the compelled notice sentence by sentence, finding it true. For example, CTIA objected to the phrase “RF radiation,” but Judge Fletcher's opinion noted this is "precisely the phrase the FCC has used, beginning in 1996, to refer to radio-frequency emissions from cell phones," and that the city could not be faulted for using the technically correct term that the FCC itself uses.
It was on this point that the brief partial dissent by Judge Michelle Friedland differed. For Judge Friedland, consumers would not read the disclosure "sentences in isolation the way the majority does." She argues that taken as a whole,"the most natural reading of the disclosure warns that carrying a cell phone in one’s pocket is unsafe," and that "Berkeley has not attempted to argue, let alone to prove, that message is true." She accuses the city of "crying wolf" and advises the city if it "wants consumers to listen to its warnings, it should stay quiet until it is prepared to present evidence of a wolf."
In addition to the First Amendment claim, CTIA argued that the mandated disclosure was preempted by federal regulations. The court noted procedural problems regarding when the argument was advanced. Nevertheless, the court clearly concluded:
Berkeley’s compelled disclosure does no more than to alert consumers to the safety disclosures that the FCC requires, and to direct consumers to federally compelled instructions in their user manuals providing specific information about how to avoid excessive exposure. Far from conflicting with federal law and policy, the Berkeley ordinance complements and reinforces it.
But surely it is the First Amendment issues that are central to the case. The panel essentially divides on the limit to government mandated disclosures to consumers, an issue that vexed the DC Circuit not only in the American Meat Institute case mentioned above, but also in National Association of Manufacturers v. SEC (conflict minerals) and in R.J. Reynolds Tobacco Co. v. FDA (cigarette labeling), both of which held the labeling requirements violated the First Amendment. One measure of the importance of the issue is the attorneys who argued CTIA in the Ninth Circuit: Theodore Olsen for the trade association of CTIA and Lawrence Lessig for the City of Berkeley. The Ninth Circuit's majority opinion is careful and well-reasoned, but as the divided panel evinces, there are fundamental disputes about warning labels.
The Department of Justice sent nine letters today reminding "sanctuary" jurisdictions that "as a condition for receiving certain financial year 2016 funding from the Department of Justice, each of these jurisdictions agreed to provide documentation and an opinion from legal counsel validating that they are in compliance with Section 1373." Here's DOJ's press release.
The move is the administration's latest effort to clamp down on sanctuary cities. We posted on President Trump's original EO here.
Section 1373 says that "a Federal, State, or local government entity or official may not prohibit, or in any way restrict, any government entity or official from sending to, or receiving from, the Immigration and Naturalization Service information regarding the citizenship or immigration status, lawful or unlawful, of any individual."
The DOJ letters to sanctuary cities say that the FY 2016 Edward Byrne Memorial Justice Assistance Grant Program conditions federal funds on compliance with this provision. That Program provides funds for law enforcement and related purposes. It amounts to a relatively modest sum of federal support for the targeted jurisdictions and probably runs well short of all federal spending in these jurisdictions. (President Trump's EO, in contrast, targets all "Federal grants, except as deemed necessary for law enforcement purposes by the Attorney General or the Secretary.")
These features may make it more difficult for targeted jurisdictions to challenge DOJ's latest move and any subsequent move to withhold federal funds as applied to JAG Program grants. (If the JAG Program makes this condition specific, and if immigration enforcement is sufficiently related to the purposes of the JAG grant for any given targeted jurisdiction, and if the amount of money involved does not turn pressure into compulsion, then a move to withhold JAG funds from jurisdictions that don't comply may withstand judicial scrutiny.)
But because President Trump's EO remains on the books with its full breadth, jurisdictions can still lodge facial challenges against the administration to block the full force of the EO. And the pending cases challenging the EO on its face are likely to move forward, despite this latest DOJ move.
Thursday, April 20, 2017
The Fifth Circuit today threw out a criminal case brought by Texas against a federal FBI deputy, citing Supremacy Clause immunity. The ruling means that the state's case against the officer ends, although the court noted that federal authorities could still bring a federal case.
The case arose when Charles Kleinert, specially deputized by the FBI to investigate bank robberies, accidentally shot a person during an investigation. The victim showed up to a bank that was closed after an actual robbery. When Kleinert, who was in the bank, came out, the victim gave Kleinert a false name and allegedly exhibited other suspicious behavior. When Kleinert called him on the false name, the victim fled. Kleinert followed and eventually nabbed the victim. In the course of a struggled, Kleinert's weapon discharged and struck and killed the victim.
A Travis County grand jury indicted Kleinert for manslaughter. Kleinert removed the case to federal court (under the "federal officer removal" statute) and moved to dismiss, arguing that he was immune from state prosecution under Supremacy Clause immunity. The district court agreed and dismissed the case; the Fifth Circuit affirmed.
Supremacy Clause immunity prohibits a state from punishing (1) a federal officer (2) authorized by federal law to perform an act (3) who, in performing the act, did no more than what the officer subjectively believed was necessary and proper and (4) that belief was objectively reasonable under the circumstances.
The Fifth Circuit held that Kleinert was authorized by federal law to pursue and arrest the victim, because, under the circumstances, he had probable cause that criminal activity was afoot. The court held that he had a subjective belief that his action was necessary and proper, because, under the circumstances, he acted consistently with his training, without any animus toward the victim. And the court said that Kleinert's belief was objectively reasonable, because his acts were consistent with what others would have done. (The state conceded that Kleinert was a federal officer.)
The ruling ends the state prosecution. But the court specifically noted that Kleinert might still be subject to federal prosecution.
Wednesday, April 19, 2017
The nine Justice Court heard oral arguments this morning in Trinity Lutheran Church of Columbia, Mo. v. Comer, involving a First Amendment Free Exercise Clause challenge to a denial of state funding that was based on Missouri's state constitutional provision prohibiting any state funds from being awarded to religious organizations.
The state Department of Natural Resources had denied the grant application of Trinity Lutheran Church for funds to purchase of recycled tires to resurface its preschool playground. The state officials had reasoned that supplying such funds would violate the state constitutional provision, a provision often called a Blaine Amendment, and which the attorney for Trinity Lutheran Church noted was often rooted in "anti-Catholic bigotry." In upholding the Missouri denial of resources the Eighth Circuit had relied in part on Locke v. Davey (2004), in which "the Court upheld State of Washington statutes and constitutional provisions that barred public scholarship aid to post-secondary students pursuing a degree in theology." For the Eighth Circuit, "while there is active academic and judicial debate about the breadth of the decision, we conclude that Locke" supported circuit precedent that foreclosed the challenge to the Missouri state constitutional provision.
Locke v. Davey arose frequently in the argument. The attorney for the church argued that Locke's "play in the joints" was pertinent, but distinguished the program in Locke as being more inclusive of religion. Justice Kennedy seemed to distinguish Locke v. Davey, stating that "this is quite different than Locke, because this is a status-based statute." Later, Chief Justice Roberts broached Locke, in a colloquy with James Layton, representing Missouri, who argued that Locke was a closer case than the present one because here the state's money was a "direct payment" to the church rather a scholarship to a student as in Locke. But Justice Kagan, evoking Locke, seemed troubled by Missouri's argument:
JUSTICE KAGAN: But here's the deal. You're right that this is a selective program. It's not a general program in which everybody gets money. But still the question is whether some people can be disentitled from applying to that program and from receiving that money if they are qualified based on other completely nonreligious attributes, and they're disqualified solely because they are a religious institution doing religious things. Even though they're not --they could --they could promise you, we're not going to do religious things on this playground surface, and you're still saying, well, no, you --you can't get the money.
Soon thereafter, Justice Kagan stated:
JUSTICE KAGAN: But I don't understand -I --I think I understand how the States' interests might differ some, but essentially this is a program open to everyone. Happens to be a competitive program, but everyone is open to compete on various neutral terms, and you're depriving one set of actors from being able to compete in the same way everybody else can compete because of their religious identification.
Layton, representing the State, also had his own status and the status of the litigation to discuss.
[Sotomayor]: Mr. Layton, I'm --I'm --I know the Court is very grateful that you took up the request of the Missouri Attorney General to defend the old position, but I --I am worried about the, if not the mootness, the adversity in this case. If the Attorney General is in favor of the position that your adversary is taking, isn't his appointment of you creating adversity that doesn't exist?
MR. LAYTON: Well, I don't know the answer to that --that, but let me --let me give some of the factual background here.
The Attorney General himself is recused because he actually appears on one of the briefs on the other side. The first assistant in this instance is the Acting Attorney General, and the Acting Attorney General, at a time before governor --the governor gave his new instruction, asked me to defend the position, because at that point, it was still the position of the State, and was not being disavowed.
JUSTICE SOTOMAYOR: Well, but that's the question. It doesn't appear to be the position of the State right now. Reading through the lines of the Acting Attorney General to us, it doesn't appear that he believes that you're taking the right position.
The problem of whether the case is moot because the Governor of Missouri announced this week a change of policy was the subject of a Court instruction to the attorneys to respond by letter regarding the issue. It dominated very little of the discussion, but Chief Justice Roberts did ask this:
CHIEF JUSTICE ROBERTS: You --do you agree that this --this Court's voluntary cessation policies apply to the mootness question?
MR. LAYTON: I agree . . .
Justice Gorsuch, new to the bench this week, then brought the matter back to the substantive issue.
Whether or not the Court will dismiss the case or rule on the merits was not evident from the oral argument, although it did seem as if there was not much enthusiasm for Missouri's now-previous position that prevailed in the Eighth Circuit.
Sunday, April 16, 2017
In an opinion in excess of 100 pages in McGehee v. Hutchinson, United States District Judge Kristine Baker enjoined the scheduled execution of McGehee and eight other plaintiffs based on their likelihood to succeed on their Eighth Amendment and First Amendment claims.
The case arises from a highly unusual compressed execution schedule: "Governor Hutchinson set eight of their execution dates for an 11-day period in April 2017, with two executions to occur back-to-back on four separate nights." Judge Baker rejected the claim that the schedule alone violated any "evolving standards of decency" under the Eighth Amendment.
However, this unusual schedule did play some part in Judge Baker's conclusion that there was a likelihood of success on the merits of the plaintiffs' Eighth Amendment challenge to the use of midazolam as cruel and unusual punishment.
In a detailed recitation of the facts, including expert testimony rendered by both the plaintiffs and the State, Judge Baker noted that she "received much evidence in the last four days " and "filtered that evidence, considerable amounts of which involved scientific principles," and converted it into lay terms in the opinion. At times, Judge Baker's assessment of the expert testimony is quite precise: "Defendants’ witness Dr. Antognini’s reliance on animal studies while defense counsel simultaneously challenged plaintiffs’ witness Dr. Steven’s reliance on animal and in vitro studies seems inconsistent. This inconsistency went largely unexplained."
This factual record is important for applying the test for a challenge to a method of execution as the United States Supreme Court articulated in Glossip v. Gross (2015). As Judge Baker explained, plaintiffs have the burden of proving that “the State's lethal injection protocol creates a demonstrated risk of severe pain” and “the risk is substantial when compared to the known and available alternatives.” On the first prong, Judge Baker concluded there is a "significant possibility" that plaintiffs will succeed in showing that the use of midazolam in the Arkansas Department of Corrections (ADC) "current lethal injection protocol qualifies as an objectively intolerable risk that plaintiffs will suffer severe pain." She continued that the
risk is exacerbated when considering the fact that the state has scheduled eight executions over 11 days, despite the fact that the state has not executed an inmate since 2005. Furthermore, the ADC’s execution protocol and policies fail to contain adequate safeguards that mitigate some of the risk presented by using midazolam and trying to execute that many inmates in such a short period of time.
The second prong under Glossip requires plaintiffs to show that “the risk is substantial when compared to the known and available alternatives.” Judge Baker stated that the "Supreme Court has provided little guidance as to the meaning of 'availability' in this context, other than by stating that the alternative method must be 'feasible, readily implemented, and in fact significantly reduce a substantial risk of severe pain.’" She then discussed the conflicting standards in the Circuits, concluding that the "approach taken by the Sixth Circuit provides a better test for 'availability' under Glossip," because the "Eleventh Circuit’s understanding of “availability” places an almost impossible burden on plaintiffs challenging their method of execution, particularly at the preliminary injunction stage." In deciding that there were alternatives available, Judge Baker found that "there is a significant possibility that pentobarbital is available for use in executions." The opinion noted that other states have carried out executions with this drug. The opinion also noted that "plaintiffs have demonstrated a significant possibility that the firing squad is a reasonable alternative."
Thus, Judge Baker found that both prongs of Glossip were likely to be satisfied under the Eighth Amendment claim.
On the First Amendment claim, the essence was that the limitations placed on counsel viewing the execution would deprive plaintiffs of their access to the courts during that time. Judge Baker noted there was some confusion regarding the actual viewing policy that would be operative, with the Director having "taken three or four different positions regarding viewing policies" during litigation. But, the "key aspect" of any policy "would force plaintiffs’ counsel to choose between witnessing the execution and contacting the Court in case anything should arise during the course of the execution itself."
In analyzing the First Amendment claim, Judge Baker used the highly deferential standard of Turner v. Safely (1987), with its four factors:
- First, “there must be a ‘valid, rational connection’ between the prison regulation and the legitimate government interest put forward to justify it.”
- Second, courts must consider “whether there are alternative means of exercising the right that remain open to prison inmates.”
- “A third consideration is the impact accommodation of the asserted constitutional right will have on guards and other inmates, and on the allocation of prison resources generally.”
- Finally, “the absence of ready alternatives is evidence of the reasonableness of a prison regulation.”
Judge Baker held that while there was a valid rational connection, there were alternative means and no impact on other prisoners. Thus, Judge Baker enjoined the Director "from implementing the viewing policies insofar as they infringe plaintiffs’ right to counsel and right of access to the courts," and charged the Director "with the task of devising a viewing policy that assures plaintiffs’ right to counsel and access to the courts for the entire duration of all executions."
Judge Baker issued her Preliminary Injunction on Saturday, April 15. Reportedly, there is already an emergency appeal to the Eighth Circuit, as well as an appeal of a stay by a state court judge to the Arkansas Supreme Court.
Friday, March 31, 2017
Seattle sued the Trump Administration this week over President Trump's "sanctuary cities" executive order. Seattle's move follows San Francisco's earlier suit and AG Sessions's speech this week on how he intends to enforce the EO.
Like San Francisco, Seattle alleges that it's already complying with Section 1373 (because that section doesn't "impose an affirmative obligation to collect the citizenship and immigration data of its residents, or to provide such data to federal officials"), and that Section 1373 is unconstitutional if it requires anything more.
As to the constitutionality of Section 1373, Seattle contends that it violates the anti-commandeering principle in violation of Printz, that it turns pressure into compulsion in violation of NFIB, and that it contains only vague conditions on federal spending, unrelated to the underlying federal program.
Seattle's suit assumes that the EO threatens all federal funding for failure to comply with Section 1373--an assumption that seems supported by the plain language of the EO. AG Sessions's speech this week did very little (if anything) to qualify that assumption and to clarify the EO's reach.
Wednesday, March 29, 2017
In its opinion in Expressions Hair Design v. Schneiderman, a unanimous Court reversed the Second Circuit's conclusion that the First Amendment was not applicable to a New York statute prohibiting a credit card surcharge.
At issue is New York General Business Law § 518 prohibiting sellers from imposing a surcharge on customers who use credit cards. On the other hand, the statute allowed a "cash discount." United States District Judge Jed Rakoff had held that the New York statute regulated speech, limiting how merchants could express their differential pricing, and concluded that the statute failed the test for constitutional commercial speech under Central Hudson Gas & Electric Corp. v. Public Service Commission (1980). The Second Circuit did not reach the Central Hudson analysis given its conclusion that there was no speech, commercial or otherwise, only conduct. The United States Supreme Court holds the statute regulates speech, at least as applied here.
The law tells merchants nothing about the amount they are allowed to collect from a cash or credit card payer. Sellers are free to charge $10 for cash and $9.70, $10, $10.30, or any other amount for credit. What the law does regulate is how sellers may communicate their prices. A merchant who wants to charge $10 for cash and $10.30 for credit may not convey that price any way he pleases. He is not free to say “$10,with a 3% credit card surcharge” or “$10, plus $0.30 for credit” because both of those displays identify a single sticker price—$10—that is less than the amount credit card users will be charged. Instead, if the merchant wishes to post a single sticker price, he must display $10.30 as his sticker price. Accordingly, while we agree with the Court of Appeals that §518 regulates a relationship between a sticker price and the price charged to credit card users, we cannot accept its conclusion that §518 is nothing more than a mine-run price regulation. In regulating the communication of prices rather than prices themselves, §518 regulates speech.
The Court did not proceed further, but remanded the case to the Second Circuit to assess 518's constitutionality, presumably under Central Hudson. However, in a footnote the Court made clear that there is a question as to whether 518 would prohibit a "two-sticker pricing scheme" such as the one that Hair Expression uses.
Justice Breyer's brief concurring opinion points out that the speech/conduct distinction may not be the wisest path, but instead the courts should consider how the challenged government action "affects an interest that the First Amendment protects." Here, Justice Breyer contends that 518 is unclear as to whether it is actually regulating disclosure (in which case the rational basis standard of Zauderer v. Office of Disciplinary Counsel of Supreme Court of Ohio (1985) would apply) or whether it is more traditional commercial speech under Central Hudson.
This lack of clarity in the statute causes Justice Breyer to agree with the concurring opinion by Justice Sotomayor, joined by Justice Alito, that the interpretation of the statute should be certified to New York's highest court. Sotomayor's opinion criticizes the Second Circuit for not certifying the question previously, but for choosing a "convoluted course": it "rejected certification, abstained in part,' and decided the question in part," requiring a division in the petitioners' First Amendment challenge.
Sotomayor makes it clear that the "Court's opinion does not foreclose" the Second Circuit from choosing the certification route on remand. It remains to be seen what the Second Circuit will do, but it would probably be well-advised to avail itself of the certification process.
Thursday, March 23, 2017
The Fifth Circuit ruled this week that a medical air-evacuation company has standing and that it sufficiently alleged that state defendants had "some connection" to the enforcement of state law against it to allow the company's preemption suit, including a request for injunctive relief, to move forward. The ruling remands the case to the district court for proceedings on the merits.
The case involves Texas's workers'-compensation scheme, which caps reimbursement to Air Evac's medi-vac air ambulances from an insurance company. Under the Texas Workers' Compensation Act, the Texas Workers' Compensation Commission sets reimbursements rates for insurers to pay health-care providers directly. The Act also prohibits health-care providers from billing a patient for any amount in excess of the set rate. The upshot is that "the initial bill goes to the insurer rather than the patient," at a set rate, here 125% of the Medicare rate for the same service.
Air Evac, along with other, similar health-care providers, challenged the rate through the state administrative-dispute system, arguing that it was preempted by the federal Airline Deregulation Act. They lost, and the lead plaintiff, PHI, appealed.
While the appeal was pending, Air Evac filed this case in federal court, seeking a declaration that the ADA preempted the TWCA and an injunction against TWCA enforcement (under Ex Parte Young). But the district court dismissed the case for lack of subject-matter jurisdiction, because the state defendants weren't charged with enforcing the maximum-reimbursement scheme against Air Evac (because the rate "constraints the amount insurers can pay, rather than the amount air-ambulance companies can charge"), and because Air Evac "failed to show an enforcement proceeding concerning the balance-billing prohibition is imminent, threatened, or even intended."
The Fifth Circuit reversed. The court ruled that Air Evac had standing, because the maximum rate actually constrained the amount that Air Evac could receive, even though it operated directly on the third-party insurer (and not Air Evac). The court held that there was federal question jurisdiction, because Air Evac pleaded that the federal ADA preempted the TWCA. And the court ruled that the state defendants had "some connection" to enforcement of the maximum rate against Air Evac, again because the maximum rate actually constrained Air Evac's reimbursement, even if it operated on the insurer. The court declined to abstain while PHI's state appeal was pending, because the parties and claims were different.
The ruling sends the case back to the district court for proceedings on the merits, the preemption claim.
Friday, March 17, 2017
President Trump's EO on sanctuary cities says that "the Attorney General and the Secretary . . . shall ensure that jurisdictions that willfully refuse to comply with 8 U.S.C. Sec. 1373 (sanctuary jurisdiction) are not eligible to receive Federal grants, except as deemed necessary for law enforcement purposes by the Attorney General or the Secretary."
The provision is almost certainly over-broad, in that it conditions apparently all "Federal grants" on compliance with Section 1373, running afoul of both the relatedness prong and the pressure-into-compulsion test for conditioned federal spending.
But is 1373 itself unconstitutional? In particular, does 1373 violate the non-commandeering principle?
Section 1373 reads:
(a) Notwithstanding any other provision of Federal, State, or local law, a Federal, State, or local government entity or official may not prohibit, or in any way restrict, any government entity or official from sending to, or receiving from, the Immigration and Naturalization Service information regarding the citizenship or immigration status, lawful or unlawful, of any individual.
(b) Notwithstanding any other provision of Federal, State, or local law, no person or agency may prohibit, or in any way restrict, a Federal, State, or local government entity from doing any of the following with respect to information regarding the immigration status, lawful or unlawful, or any individual:
(1) Sending such information to, or requesting or receiving such information from, the Immigration and Naturalization Service.
(2) Maintaining such information.
(3) Exchanging such information with any other Federal, State, or local government entity.
(c) The Immigration and Naturalization Service shall respond to an inquiry by a Federal, State, or local government agency, seeking to verify or ascertain the citizenship or immigration status of any individual within the jurisdiction of the agency for any purpose authorized by law, by providing the requested verification or status information.
The provision--which prohibits action (it prohibits prohibitions) by state and local governments, but doesn't require action--is a pretty transparent attempt to try to work around the anti-commandeering principle. (Doing the same thing directly--by requiring state and local officers to report--would obviously violate the anti-commandeering principle.) Does that save it from commandeering?
Jane Chong, in a thoughtful post over at Lawfare, says maybe--or at least "the answer is not as open-and-shut as the experts insist it is."
If she's right--and she makes a good argument--maybe the problem isn't with transparent work-arounds like 1373. Maybe, instead, the problem is with the anti-commandeering principle itself. In light of 1373 (and a similar provision in the Professional and Amateur Sports Protection Act of 1992, which Chong discusses), maybe "anti-commandeering" suffers from the same problem that another Tenth Amendment principle--"areas of traditional government functions"--suffered from between National League of Cities v. Usery and Garcia v. San Antonio Metropolitan Transit Authority: It's unworkable. And maybe the solution is the same as in Garcia: Abandon it, and leave the issue to the political process. (After all, there's nothing in the Tenth Amendment that says anything about commandeering.)
Saturday, March 4, 2017
In his opinion in LaCroix v. Junior, Florida state judge Milton Hirsch confronted the constitutionality of the Executive Order threatening to revoke federal funding for sanctuary cities which as we previously predicted "overreaches."
The judge granted the petition for writ of habeas corpus by a man "incarcerated in the Miami-Dade County correctional system." Although there were no state charges against him, LaCroix had "no prospect of imminent release," because as "often happens" Immigration and Customs Enforcement (“ICE”), the federal agency "responsible for the deportation of those whose presence in this country is unlawful, had filed a detainer or lodged a request with the corrections department, seeking to have the department retain an inmate whom would otherwise be released, because ICE has a basis to inquire further as to the status of the person sought.
Judge Hirsch identified "two inequities" of this practice. First, until ICE takes custody of the person, the county must "house, oversee, and control" people in which it has no ongoing interest and to do so at county expense. Second, "it results in the continued incarceration in county jails of persons neither charged with, nor sentenced for violating, any state or county law, and whose ongoing incarceration by the county is therefore difficult to justify."
Judge Hirsch's opinion outlines the controversies surrounding the county's changing practices, noting that while there had been county detention on behalf of ICE, in 2013 the Dade County Commission changed its policy to effectively ban county jails from honoring ICE requests. However, after the President "threatened to cut federal grants for any counties or cities that don’t cooperate fully with Immigration and Customs Enforcement," Miami-Dade Mayor Carlos Gimenez immediately reversed county policy and ordered county jails to comply with ICE requests.
Judge Hirsch finds that the federal government cannot constrict or commandeer state officials largely relying on Printz v. United States (1997), which held the Brady Handgun Violence Prevention Act's requirement of background checks by state officials unconstitutional pursuant to the Tenth Amendment. Quoting from Justice Scalia's opinion for the Court in Printz, Judge Hirsch concluded that the present situation was "actually easier" to decide: Printz involved something that local law enforcement is often called to do as a matter of local law, but here
however, we deal with an area of the law – the regulation of immigration and deportation – reserved exclusively to the federal government. See U.S. Const. Art. I § 8, clause 4. The Department does not, and as a matter of constitutional law cannot, act in this federal bailiwick. According to its “mission statement,” see http://www.miamidade.gov/corrections/about-corrections.asp, the Department, “serves our community by providing safe, secure and humane detention of individuals in our custody while preparing them for a successful return to the community.” (Emphasis added.) This is wholly unrelated, arguably antithetical, to the mission of ICE, see https://www.ice.gov/overview, which is “to protect America from the cross-border crime and illegal immigration that threaten national security and public safety.” Yet by operation of the recent change in county policy, and the presidential order upon which it is based, county correctional officers and county correctional facilities are made appendages of ICE, obliged to imprison and maintain Petitioner for ICE –
Petitioner and others, perhaps many others, similarly circumstanced. If the use made of local governmental resources in Printz was constitutionally proscribed, the use made of local governmental resources here is surely constitutionally proscribed.
Moreover, although LaCroix is not a government official, the Tenth Amendment's reservation of rights to "the people" is one that can be raised by an individual, as the Court unanimously held in Bond v. United States (2011). (Recall that Carol Anne Bond was similarly successful in her second trip to the United States Supreme Court when it held that the federal government had essentially overreached in prosecuting her for violation using "chemical weapons.")
Judge Hirsch's analysis of Tenth Amendment precedent is on solid ground. The opinion is carefully crafted and closely reasoned. But Judge Hirsch does evoke the larger political contexts in at least two respects.
First, Judge Hirsch raises and discounts the term "sanctuary city." He writes that although the term has a "Biblical sound to it" (explaining in a footnote the more precise Biblical meaning), and thus has some rhetorical force,
Miami is not and never was a “sanctuary city,” and the issue raised by the petition at bar has nothing to do with affording “sanctuary” to those unlawfully in this country. It has everything to do with the separation of powers between the state and federal governments as reflected in the Tenth Amendment to, and in the very structure of, the United States Constitution.
Nevertheless, near the end of the opinion, Judge Hirsch repeats his conclusion that "Miami is not, and has never been, a sanctuary city," and then adds:"But America is, and has always been, a sanctuary country." He quotes one of his own previous opinions and includes a footnote quoting Emma Lazarus, The New Colossus and discussing the dedication of the Statue of Liberty.
Second, Judge Hirsch raises the specter of unbridled Executive power. He notes that although the "presidential edict at issue here seeks to bring about the conscription of the corrections department, and employs powerful financial pressure to do so," the Spending Power is vested in Congress under Art. I §8 cl. 1 rather than the Executive. Additionally:
No doubt the limitations imposed by the Tenth Amendment, like so many limitations imposed by the Constitution, are a source of frustration to those who dream of wielding power in unprecedented ways or to unprecedented degrees. But America was not made for those who dream of power. America was made for those with the power to dream.
It does not seem too far of a stretch to read this as a critique of the current President.
The case is sure to be appealed. But whatever happens on appeal in this case, there is similar litigation throughout the nation, including the lawsuit by San Franscisco.
Thursday, February 16, 2017
In its unanimous opinion in State v. Arlene's Flowers, the Supreme Court of Washington upheld the Washington Law Against Discrimination including sexual orientation as applied to a business that refused to provide wedding flowers for a same-sex wedding.
The owner of Arlene's Flowers argued that the anti-discrimination statute was not applicable to her and if it did, it violated her constitutional rights of free speech, free exercise, and free association under the First Amendment as well as under the Washington state constitution.
On the First Amendment claims, the court found that Arlene's Flowers argument regarding compelled speech failed because the owner's flower arranging did not meet the threshold of expression. The court relied on Rumsfeld v. FAIR to hold that the owner's
decision to either provide or refuse to provide flowers for a wedding does not inherently express a message about that wedding. As [she] acknowledged at deposition, providing flowers for a wedding between Muslims would not necessarily constitute an endorsement of Islam, nor would providing flowers for an atheist couple endorse atheism. [She] also testified that she has previously declined wedding business on "[m]ajor holidays, when we don't have the staff or if they want particular flowers that we can't get in the time frame they need." Accordingly, an outside observer may be left to wonder whether a wedding was declined for one of at least three reasons: a religious objection, insufficient staff, or insufficient stock.
The court rejected the applicability of Hurley v. Irish-American Gay, Lesbian & Bisexual Group of Boston (1985), as well as a litany of other United States Supreme Court cases regarding this threshold of expression. In essence, the court emphasized that it was the sale of all flowers from her shop rather than any particular floral arrangement that was at issue in the case.
On the Free Exercise claim, the court rejected Arlene's Flowers' argument that the Washington ant-discrimination law was not a neutral one of general applicability and should therefore warrant strict scrutiny. Instead, the court applied the rational basis standard of Employment Division, Department of Human Resources of Oregon v. Smith, which the Washington anti-discrimination easily passed.
However, the analysis of free exercise under the Washington state constitution, article I §11 was not so simple because Washington has not always adopted the Smith standard when reviewing claims under its state constitution. Nevertheless, the court found that even subjecting the Washington anti-discrimination law to strict scrutiny, the statute survives. The court "emphatically" rejected the claim that there was no compelling interest of the state in flowers for weddings: the "case is no more about access to flowers than civil rights cases in the 1960s were about access to sandwiches."
Finally, the court rejected Arlene's Flowers' argument regarding free association, noting that all of the cases upon which she relied were not businesses. As to the business itself, the court also upheld a finding of personal liability of the owner, the person who had refused service.
The United States Supreme Court has denied petitions for writ of certiorari in similar cases, but it is highly likely that a petition for certiorari will follow, especially given the nomination of Neil Gorsuch to the Court.
February 16, 2017 in Family, Federalism, First Amendment, Free Exercise Clause, Fundamental Rights, Opinion Analysis, Religion, Sexual Orientation, Speech, State Constitutional Law | Permalink | Comments (0)
The Sixth Circuit ruled yesterday that a lower court should go ahead and rule on a First Amendment challenge to Tennessee's Campaign Finance Disclosure Act, and not wait for the outcome of a state administrative proceeding in a different case. The court also hinted toward a likely outcome: the Act violates the First Amendment.
The decision overturns the lower court's invocation of Pullman abstention and orders the lower court to move ahead to the merits. But the Sixth Circuit still gave the lower court a chance to certify interpretation of the state law to the Tennessee Supreme Court (but suggested that this wouldn't really help).
The case arose when two parents of school-aged children formed an unincorporated group to advocate in an upcoming school board election. The group planned to spend less than $250 on independent expenditures, and not make any direct campaign contributions to candidates.
But group members learned that Tennessee law might regulate their activities. The Tennessee Campaign Financial Disclosure Act defines a "political campaign committee" as "a combination of two (2) or more individuals, including any political part governing body, whether state or local, making expenditures, to support or oppose any candidate for public office or measure." The Act goes on to require committees to pay an annual registration fee, appoint a treasurer, maintain a separate bank account, file financial disclosure statements, and keep financial records--all things that the two members weren't prepared to do.
So they sued in federal court, arguing that the Act violated the First Amendment. But the district court punted, invoking Pullman abstention, and citing a pending state administrative proceeding involving the application of the Act to a different group.
The Sixth Circuit reversed. The court said that Pullman abstention wasn't appropriate here, because the state administrative proceeding dealt with different issues (and not the ones that the plaintiffs raised here), because the Act wasn't "so ambiguous as to necessitate abstention," and because the Act wasn't really susceptible to a limiting construction that would save it from a First Amendment challenge.
The court left open an option for the district court to certify a question on the construction of the Act to the Tennessee Supreme Court. But it also suggested that certification wouldn't do any good, because the Act says what it says.
Saturday, February 4, 2017
In a Temporary Restraining Order, United States District Judge James Robart enjoined the federal government from enforcing sections 3(c), 5(a), 5(b), 5(c), and 5(e) of the Executive Order Protecting the Nation From Foreign Terrorist Entry Into the United States, commonly known as the "Muslim Ban" or "Travel Ban."
Judge Hobart's Order is brief and concludes that there is a likelihood of success on the merits, although it does not specify which of the claims is likely to succeed. Washington State's complaint contains 7 counts claiming violations of constitutional guarantees of Equal Protection, Establishment Clause, and Procedural Due Process, as well as statutory violations of the Immigration and Nationality Act (2 counts), Foreign Affairs and Restructuring Act, the Administrative Procedure Act (2 counts), and the Religious Freedom and Restoration Act (RFRA).
The Judge's finding that Washington faces the "immediate and irreparable injury" requirement for preliminary relief might also be a comment on the merits of Washington's standing (which we first discussed here) to bring the suit, and would be pertinent to the standing of the state of Hawai'i, which has also sued. Judge Robart found:
The Executive Order adversely affects the States’ residents in areas of employment, education, business, family relations, and freedom to travel. These harms extend to the States by virtue of their roles as parens patriae of the residents living within their borders. In addition, the States themselves are harmed by virtue of the damage that implementation of the Executive Order has inﬂicted upon the operations and missions of their public universities and other institutions of higher learning, as well as injury to the States" operations, tax bases, and public funds.
Additionally, in the Order's one paragraph Conclusion, Judge Robart implicitly invokes the Marbury v. Madison aspects of the controversy. Here is the entire last paragraph:
Fundamental to the work of this court is a vigilant recognition that it is but one of three equal branches of our federal government. The work of the court is not to create policy or judge the wisdom of any particular policy promoted by the other two branches. That is the work of the legislative and executive branches and of the citizens of this country who ultimately exercise democratic control over those branches. The work of the Judiciary, and this court, is limited to ensuring that the actions taken by the other two branches comport with our country’s laws, and more importantly, our Constitution. The narrow question the court is asked to consider today is whether it is appropriate to enter a TRO against certain actions taken by the Executive in the context of this speciﬁc lawsuit. Although the question is narrow, the court is mindful of the considerable impact its order may have on the parties before it, the executive branch of our government, and the country’s citizens and residents. The court concludes that the circumstances brought before it today are such that it must intervene to fulﬁll its constitutional role in our tripart government. Accordingly, the court concludes that entry of the above-described TRO is necessary, and the States’ motion (Dkt. ## 2, 19) is therefore GRANTED.
The morning after the Judge's Order, the President from his vacation home "tweeted" his disapproval, maligning the judge but seemingly committed to pursue further judicial process.
February 4, 2017 in Courts and Judging, Current Affairs, Due Process (Substantive), Equal Protection, Establishment Clause, Federalism, First Amendment, Free Exercise Clause, Fundamental Rights, Opinion Analysis, Procedural Due Process, Race, Separation of Powers, Standing | Permalink | Comments (2)
Friday, February 3, 2017
Joining the more than 15 other cases filed across the nation challenging Trump's Executive Order Protecting the Nation From Foreign Terrorist Entry Into the United States, now available on the whitehouse.gov site here, today Hawai'i filed a Complaint in Hawai'i v. Trump, accompanied by a lengthy motion for Temporary Restraining Order and supporting Memorandum of Law.
Hawai'i asserts standing as a state based on its diversity in ethnic population, its high number of noncitizen residents including business owners and students, and its tourism-based economy. Washington state previously brought suit (with an oral ruling granting a TRO); Virginia is seeking to intervene in a lawsuit there.
The constitutional claims are by now familiar from suits such as the first one in Darweesh v. Trump and the one filed by CAIR, Sarsour v. Trump, including Equal Protection claims as we analyzed here. Other constitutional claims generally include First Amendment Establishment Clause and Free Exercise Clause and Procedural Due Process. There have also been constitutional claims based on the Emoluments Clause (Mohammed v. United States, filed in U.S. District Court for the Central District of California, with Temporary Restraining Order entered) and a substantive due process right to familial association (Arab American Civil Rights League v. Trump , filed in U.S. District Court for the Eastern District of Michigan, with an injunction entered. Again, Lawfare is maintaining a collection of all the primary source documents.
The Hawai'i complaint includes an innovative count alleging a violation of the substantive due process right to international travel. According to the supporting memo, the right to travel abroad is “part of the ‘liberty’” protected by the Due Process Clause; as the Court stated in Kent v. Dulles (1958), “Freedom of movement is basic in our scheme of values.” The EO fails to satisfy the applicable due process standard for the same reasons it fails the equal protection analysis.
The Attorney General has not been confirmed and the Acting AG was terminated by the President when she stated the Muslim Ban was indefensible, but the DOJ attorneys seem to be vigorously defending these suits.
Tuesday, January 31, 2017
San Francisco filed suit today against President Trump over his executive order stripping sanctuary cities of federal grants.
San Francisco argues that the EO violates the anti-commandeering rule, that its funding provision turns persuasion into compulsion, and that the funding threat includes federal money that has nothing to do with immigration enforcement--all in violation of federalism principles in the Tenth Amendment.
Recall the EO's federal-funding-for-compliance provision:
the Attorney General and the Secretary, in their discretion and to the extent consistent with law, shall ensure that jurisdictions that willfully refuse to comply with 8 U.S.C. Sec. 1371 (sanctuary jurisdictions) are not eligible to receive Federal grants, except as deemed necessary for law enforcement purposes by the Attorney General or the Secretary.
8 U.S.C. Sec. 1373(a), in turn, prohibits local governments from "sending to, or receiving from, [federal immigration officials] information regarding the citizenship or immigration status . . . of any individual."
As an initial matter, San Francisco argues that it actually complies with 1373, because it doesn't prohibit officials from communicating with the feds regarding "citizenship or immigration status," even though it restricts communications on other matters.
The City goes on to argue that 1373, taken together with the EO, commandeers state and local governments in violation of the anti-commandeering rule, because it regulates "States in their sovereign capacity," "limit[s] state authority to regulate internal affairs and determine the duties and responsibilities of state employees," and "ultimately forc[es] States to allow their employees to use state time and state resources to assist in the enforcement of federal statutes regulating private individuals." Moreover, the EO "commandeers state and local governments, violating the Tenth Amendment to the United States Constitution by, inter alia, compelling them to enforce a federal program by imprisoning individuals subject to removal at the request of the Federal government when those individuals would otherwise be released from custody."
As to preenforcement review, San Francisco argues that it "faces the imminent loss of federal funds and impending enforcement action if it does not capitulate to the President's demand that it help enforce federal immigration law. At least one jurisdiction has already succumbed to this presidential fiat." (The complaint also outlines the many other harms the city says it suffers, and will suffer, under the EO.)
Wednesday, January 25, 2017
President Trump's EO today threatening to revoke federal funding for sanctuary cities runs right up against NFIB v. Sebelius, the Supreme Court's Obamacare decision, penned by Chief Justice John Roberts. In other words: It is unconstitutional.
Recall that the Court in NFIB ruled that Obamacare's Medicaid expansion violated federalism principles, because Obamacare threatened a state that declined to expand Medicaid with a potential loss of all federal Medicaid funding. Chief Justice Roberts wrote that the provision was "a gun to the head" of states, and that the threatened loss of Medicaid funding "is economic dragooning that leaves the States with no real option but to acquiesce in the Medicaid expansion." The Court "saved" the provision, however, by ruling that the federal government could withhold the additional Obamacare funding for Medicaid expansion from any state that declined to expand Medicaid under Obamacare. It just couldn't withhold all Medicaid funding.
Enter Trump's policy on sanctuary cities. President Trump's EO says that it's the policy of Executive Branch to "[e]nsure that jurisdictions that fail to comply with applicable Federal law do not receive Federal funds, except as mandated by law." So far, so good, if NFIB is part of law, as it is.
But the EO goes on to say that "the Attorney General and the Secretary . . . shall ensure that jurisdictions that willfully refuse to comply with 8 U.S.C. Sec. 1373 (sanctuary jurisdictions) are not eligible to receive Federal grants, except as deemed necessary for law enforcement purposes by the Attorney General or the Secretary."
This goes much farther than Obamacare's Medicaid expansion: The EO threatens to revoke all federal funding to a jurisdiction, with just a small caveat, and with no overriding "except as mandated by law" clause.
If Obamacare was a "gun to the head," this is much more. (Maybe a nuclear bomb to the head?) Moreover, most of the federal funding at stake has nothing to do with immigration, pretty clearly violating the "germaneness" or "relatedness" requirement from South Dakota v. Dole.
Whatever one thinks about NFIB, or even the animating federalism principles that the Court applied, President Trump's EO goes much, much farther. And whatever one thinks about sanctuary cities, President Trump's approach is quite clearly out of constitutional bounds.
Thursday, December 15, 2016
President Obama's 2016 Proclamation regarding Bill of Rights Day stresses the evolving nature of the Bill of Rights protections:
As it was originally created, the Bill of Rights safeguarded personal liberties and ensured equal justice under the law for many -- but not for all. In the centuries that followed its ratification, courageous Americans agitated and sacrificed to extend these rights to more people, moving us closer to ensuring opportunity and equality are not limited by one's race, sex, or circumstances. The desire and capacity to forge our own destinies have propelled us forward at every turn in history. The same principles that drove patriots to choose revolution over tyranny, a country to cast off the stains of slavery, women to reach for the ballot, and workers to organize for their rights still remind us that our freedom is intertwined with the freedom of others. If we are to ensure the sacred ideals embodied in the Bill of Rights are afforded to everyone, each generation must do what those who came before them have done and recommit to holding fast to our values and protecting these freedoms.
Two and a quarter centuries later, these 10 Constitutional Amendments remain a symbol of one of our Nation's first successful steps in our journey to uphold the rights of all citizens. On Bill of Rights Day, we celebrate the long arc of progress that transformed our Nation from a fledgling and fragile democracy to one in which civil rights are the birthright of all Americans. This progress was never inevitable, and as long as people remain willing to fight for justice, we can work to swing open more doors of opportunity and carry forward a vision of liberty and equality for generations to come.
As for how "Bill of Rights Day" became a named day - - - if not a true holiday - - - my previous discussion is here.
The NYT reports that some Democratic state AGs plan to borrow a page from Republican AGs' playbook: sue the President:
The strategy could be as simple as mirroring the blueprint laid out by their Republican colleagues, who made something of a legal specialty of tormenting President Obama. Conservative attorneys general in states including Texas, Virginia and Florida have sued the Obama administration dozens of times, systematically battering Mr. Obama's signature health care, environmental and immigration policies in the courts.
Monday, December 5, 2016
As an orientation for assessing the argument, Lessig trenchantly reminds us:
In 2000, Republican lawyers, desperately seeking a way to stop the recount in Florida, crafted a brilliant Equal Protection argument against the method by which the Florida courts were recounting votes. Before that election, no sane student of the Constitution would have thought that there was such a claim. When the claim was actually made, every sane lawyer (on Gore’s side at least) thought it was a sure loser. But by a vote of 7 to 2, the Supreme Court recognized the claim, and held that the Equal Protection Clause regulated how Florida could recount its votes. That conclusion led 5 justices to conclude the recount couldn’t continue. George Bush became president.
Lessig provides some scholarly sources and reveals he is planning a law review article on the applicability of Bush v. Gore and equal protection principles to the "winner take all" electoral college process.
But he also shares a first take of a legal argument drafted by Jerry Sims, an Atlanta attorney. Here's Sims's Georgia example:
In Georgia, for example, we have 16 Electors and approximately 44% of all voters cast ballots for Clinton. Yet the Clinton Voters receive no representation within the State’s Electors. They are left with no voice whatsoever in the election of the President by the Electoral College, their votes are for all practical purposes thrown away. If Georgia were electing a single candidate then a winner-take-all result would be proper, but in an election of 16 Electors, the Clinton votes are not being given equal dignity with the Trump votes. Of course the state could argue that there is a single slate of Electors is up for election. But therein lies the rub, the State is not free to disregard the one man one vote rule by arbitrarily framing the election of 16 Electors as though it is an election of a single office holder. That argument would be a pretext designed to deny any voice to the voters for the candidate not winning the plurality of the vote within the State, even though in reality multiple representatives are being selected to vote in a second election for a single candidate. This system leaves minority voters in Georgia with no voice whatsoever in the final real election. Thus, if the election is viewed by the State as a statewide election, then Electors should be allocated proportionately, in order to give every vote equal dignity and weight, thereby electing a delegation of Electors that actually represents all of the voters within the State. Under this methodology every vote counts. Proportional allocation of Electors respects the one man one vote principle while preserving the small state bias. It merely eliminates the likelihood of a President being elected who did not win the popular vote and did not win because of the small State bias embedded in the Constitution.
Sims links to a spread sheet that provides the data for other states.
The equal protection framework relies on Bush v. Gore and Reynolds v. Sims, as well as Williams v. Rhodes (1968).
It's certainly worth considering.