Friday, June 28, 2013
In the wake of the Court's decisions in United States v. Windsor, declaring section 3 of DOMA unconstitutional, and Perry v. Hollingsworth, holding that the "proponents" of Proposition 8 lacked standing to appeal a federal judge's declaration of Prop 8's unconstitutionality, many questions remain.
The first question is the status of Proposition 8. Recall that the federal district judge held Prop 8 made a sexual orientation classification that does not satisfy the rational basis standard and thus violates the Equal Protection Clause. The district judge's opinion enjoined the enforcement of Proposition 8, an injunction which he then stayed. Chief Judge Roberts' majority opinion in Perry describes district judge Walker's order as being broad:
"After a 12-day bench trial, the District Court declared Proposition 8 uncon- stitutional, permanently enjoining the California officials named as defendants from enforcing the law, and “direct- ing the official defendants that all persons under their control or supervision” shall not enforce it. Perry v. Schwarzenegger, 704 F.Supp. 2d 921, 1004 (ND Cal. 2010).
Received copy of Supreme Court opinion dated 06/26/2013. The judgment or mandate of this Court will not issue for at least twenty-five days pursuant to Rule 45. Should a petition for rehearing be filed timely, the judgment or mandate will be further stayed pending this Court's action on the petition for rehearing. Supreme Court No: 12-144.  [10-16696, 11-16577].
One of the best discussions of this issue is by ConLawProf Marty Lederman over at SCOTUSblog. Lederman asks "even if Judge Walker’s injunction should have been limited to the protection of the plaintiffs before him—so what? That injunction nevertheless governs the case, and it will be operative, regardless of whether it should have been more tailored." He concludes that Justice Kennedy, dissenting in Perry will be proven correct that “the Court’s opinion today means that a single district court can make a decision with far-reaching effects that cannot be reviewed.”
The second question is one that is being voiced less, but is worth considering: Why are there no opinions by Justices Sotomayor, Ginsburg, Kagan, and Breyer? Justice Ginsburg, who made headlines with her "skim milk" comment during oral argument in Windsor, could have effectively written a concurring opinion that might have counter-balanced some of the arguments in Alito's separate dissenting opinion regarding the function of marriage. ConLawProf David Cohen over at FeministLawProfessors ConLawProf argues that the lack of opinions matters:
By remaining silent, not only are the liberal Justices depriving us from learning their particular views, but they are depriving future litigants the opportunity to use their strong reasoning to further their cause. After all, the logic in today’s concurring opinions often becomes the logic in tomorrow’s majority opinion.
It might be added that perhaps one of these Justices could have provided a rigorous equal protection analysis.
There are certainly more questions raised by Windsor and Perry, but these two are central.
June 28, 2013 in Courts and Judging, Current Affairs, Equal Protection, Federalism, Fourteenth Amendment, Interpretation, Jurisdiction of Federal Courts, Recent Cases, Sexual Orientation, Teaching Tips, Theory | Permalink | Comments (1) | TrackBack (0)
Wednesday, June 19, 2013
Common Cause this week pursued its case against the Senate filibuster at the D.C. Circuit when it filed its appellate brief, arguing that Judge Emmett G. Sullivan (D.D.C.) was wrong to dismiss the case last December and pressing its argument that the filibuster is unconstitutional. Common Cause's press release is here; the brief is here. We posted on Judge Sullivan's decision here.
Recall that Judge Sullivan dismissed the case, Common Cause v. Biden, for lack of standing and for raising a political question. In its brief, Common Cause takes on Judge Sullivan's ruling and argues that the filibuster is unconstitutional.
As to standing, Common Cause argues that House-member-plaintiffs have standing to challenge Senate Rule XXII, the cloture rule that allows a filibuster if the majority can't muster 60 votes to close debate, because the Rule allowed a minority in the Senate to effectively nullify their votes in favor of the DISCLOSE and DREAM Acts. Common Cause relies on language from Raines v. Byrd (1997), which says that "legislators whose votes . . . would have been sufficient to . . . enact a specific legislative Act have standing to sue if that legislative action . . . does not go into effect on the ground that their votes have been completely nullified" by a procedural violation of the Constitution. (In Raines, the Court held that Senator Byrd lacked standing when he mounted a facial challenge to the Line-Item Veto Act but failed to show that his vote on any specific appropriation bill had been nullified by the Act.)
Common Cause also argues that it has standing in its own right, because the filibuster of the DISCLOSE Act frustrated its core mission of campaign reform. It argues that it has standing based on its members, because they cannot learn the identities of certain campaign contributors. And it argues that the "dreamer"-plaintiffs have standing, because the filibuster of the DREAM Act denied them the benefits of that Act.
As to political question, Common Cause says that rules of Congress are justiciable, that they must be constitutional, and that "[t]here is nothing in the record of the Federal Convention indicating that the Framers intended to delegate to either house the authority to depart from the principle of majority rule . . . ." Brief at 15-16.
Finally, on the merits, Common Cause says,
Rule XXII's supermajority vote requirement is inconsistent with the rules of parliamentary practice that preceeded the adoption of the Constitution, the intent of the Framers as reflected in The Federalist Papers, the text of the Quorum and the Presentment Clauses, the exclusive list of exceptions to the principle of majority rule in the Constitution which specify when a supermajority vote is required, the provision of Article I, Sec. 3, cl. 4 that gives the Vice President the power to cast the tie-breaking majority vote when the Senate is "equally divided," and the first rules adopted by the Senate and the House immediately after ratification.
Brief at 56.
June 19, 2013 in Campaign Finance, Cases and Case Materials, Congressional Authority, Courts and Judging, Jurisdiction of Federal Courts, News, Separation of Powers | Permalink | Comments (0) | TrackBack (0)
Wednesday, May 15, 2013
The ACLU and 19 other organizations sent a letter this week to Secretary of Defense Chuck Hagel opposing the military's force-feeding hunger-striking detainees at Guantanamo Bay. According to the ACLU, 29 detainees are currently being force-fed. We previously posted on a ruling by New York's high court upholding the practice of force-feeing in New York prisons.
The military's standard operating procedures (SOP) on fasting and force-feeding changed just recently (published on Al Jazeera), loosening protections against force-feeding. (The earlier SOP is here.) Most notably, the recent changes to the SOP charge the military commander of the base, not a medical doctor, with determining who is a hunger striker.
Here's the ACLU's legal case against force-feeding, from this week's coalition letter to Secretary Hagel:
Force-feeding as used in Guantanamo violates Common Article 3 of the four Geneva Conventions of 1949, which bar cruel, humiliating and degrading treatment. It also could violate the Detainee Treatment Act of 2005, which prohibits the "cruel, inhuman, or degrading treatment" of prisoners "regardless of nationality or physical location." Indeed, a 2006 joint report submitted by five independent human rights experts of the United Nations Human Rights Council (formerly the U.N. Commission on Human Rights) found that the method of force-feeding then used in Guantanamo, and which appears to remain in effect today, amounted to torture as defined in Article 1 of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, which the United States ratified in 1994. The report asserted that doctors and other health professionals authorizing and participating in force-feeding prisoners were violating the right to health and other human rights, including those guaranteed by the International Covenant on Civil and Political Rights, which the United States ratified in 1992. Those concerns were reiterated this month by the Office of the UN High Commissioner for Human Rights, the Inter-American Commission on Human Rights, the United Nations Working Group on Arbitrary Detention, and three UN Special Rapporteurs.
While the letter focuses on cruel, inhuman, or degrading treatment, there may be other problems with force-feeding, too. For example, force-feeding may infringe on hunger-striking detainees' free speech. But First Amendment claims by hunger-strikers in regular detention in the U.S. have not been successful; Guantanamo Bay detainees would almost certainly face even steeper First Amendment challenges in the courts. There's also the right to refuse medical treatment. As Michael Dorf (DorfonLaw.org) argues at jurist.org, "five Justices in [Cruzan v. Dir. Missouri Dep''t of Health] did say that they thought that competent adults have the right to refuse forced feeding, even if death will result." But that runs up against Washington v. Harper, holding that prison officials could override a prisoner's objection to forcibly being administered medication, assuming it's in the prisoner's medical interest.
Anyway, as Dorf points out, some Guantanamo detainees might have a hard time even bringing a case. Judge Kessler (D.D.C) dismissed a detainee force-feeding case in 2009, based on the jurisdiction-stripping provision in the Military Commissions Act of 2006. That provision says,
Except as provided in paragraphs (2) and (3) of section 1005(e) of the Detainee Treatment Act of 2005, no court, justice, or judge shall have jurisdiction to hear or consider any other action against the United States or its agents relating to any aspect of the detention, transfer, treatment, trial, or conditions of confinement of an alien who is or was detained by the United States and has been determined by the United States to have been properly detained as an enemy combatant or is awaiting such determination.
The difference here is that some of the hunger-strikers now have been cleared for release--the U.S. just can't find a place to send them. Those detainees are not "determined by the United States to have been properly detained as an enemy combatant or [are] awaiting such determination," and are not barred by 2241(e)(2) from bringing suit.
May 15, 2013 in Courts and Judging, Current Affairs, First Amendment, Fundamental Rights, Jurisdiction of Federal Courts, Medical Decisions, News, Speech, War Powers | Permalink | Comments (0) | TrackBack (0)
Wednesday, April 24, 2013
A three-judge panel of the D.C. Circuit ruled this week in Defenders of Wildlife v. Perciasepe that a utility industry group lacked Article III standing to intervene in a case brought by Defenders against EPA in which the parties entered into a consent decree establishing a schedule for EPA to initiate notice-and-comment rulemaking on certain effluent limitations and effluent limitations guidelines.
The ruling means that the EPA will move forward with notice-and-comment rulemaking pursuant to the consent decree, and that the utility group's challenge is dismissed.
The case arose when Defenders and the Sierra Club reached an agreement with the EPA to establish a schedule for notice-and-comment rulemaking to review and possibly rewrite Steam Electric effluent limitations and effluent limitations guidelines under the Clean Water Act. Defenders filed suit and simultaneously filed a consent decree. Eight days later, the Utility Water Act Group, or UWAG, an association of energy companies, moved to intervene (in opposition to the consent decree). The district court denied the motion, and UWAG appealed.
The D.C. Circuit ruled that UWAG lacked standing, a requirement for intervention. The court first held that UWAG didn't assert a procedural injury. In particular, UWAG didn't have any claim that it should be "subject to such rulemaking only to the extent the statute commands it or authorizes EPA, in its informed discretion, to undertake it," because UWAG didn't identify a statutory procedure that the consent decree required EPA to violate. Moreover, UWAG didn't have a procedural injury flowing from the consent decree's short notice-and-comment schedule: UWAG couldn't cite any authority that the 13-month schedule was too short.
The court next said that the consent decree didn't require EPA to promulgate new rules. Instead, the decree simply required EPA to conduct a rulemaking and then decide whether to issue a new rule. The court held that this wasn't enough to meet the imminent harm requirement for standing.
Assuming no successful appeal, the next step is for EPA to start its notice-and-comment procedure pursuant to the consent decree.
Monday, March 11, 2013
Professor Peter Irons (UCSD Emeritus, and founder and Director Emeritus, Earl Warren Bill of Rights Project, UCSD) calls for Supreme Court repudiation of Hirabayashi, Yasui, and Korematsu in his recent piece Unfinished Business: The Case for Supreme Court Repudiation of the Japanese American Internment Cases.
The Supreme Court in those cases upheld convictions of Japanese Americans for violations of the military curfew and exclusion orders issued by President Franklin D. Roosevelt on February 19, 1943.
Irons initiated and served as counsel to Fred Korematsu and Gordon Hirabayashi in their 1983 coram nobis actions, which led to the vacation of their wartime convictions. Irons also wrote Justice at War: The Story of the Japanese American Internment Cases and edited Justice Delayed: The Record of the Japanese American Internment Cases.
Irons now calls for Supreme Court repudiation of Hirabayashi, Yasui, and Korematsu, an unprecedented act, but one that Irons says is appropriate here:
This essay presents the case for the Supreme Court to . . . formally repudiat[e] its decisions in the Japanese American internment cases, issuing a public statement acknowledging that these decisions were based upon numerous and knowing acts of governmental misconduct before the Court, and were thus wrongly decided. These acts of misconduct, documented and discussed herein, were committed by several high-ranking military and civilian officials (including the Solicitor General of the United States) before and during the pendancy of the internment cases before the Supreme Court. Consequently, the Court was forced to rely in making its decisions on records and arguments that were fabricated and fraudulent. Sadly, the Court's unquestioning acceptance of these tainted records, and its upholding of the criminal convictions of Gordon Hirabayashi, Minoru Yasui, and Fred Korematsu, has left a stain on the Court's integrity that requires the long overdue correction of public repudiation and apology, as both the legislative and executive branches of the federal government--to their credit--have now done.
Irons explains why Hirabayashi, Yasui, and Korematsu couldn't get the Supreme Court's rulings overturned, and thus why his efforts are now necessary:
Admittedly, a public repudiation of the Japanese American internment cases would be unprecedented, considering that the cases are technically moot, since the Solicitor General of the United States at the time, Charles Fried, did not ask the Court to review the decisions of the federal judges who vacated the convictions, pursuant to writs of error coram nobis that were filed in all three cases in 1983 and decided in opinions issued in 1984, 1986, and 1987. The government's decision to forego appeals to the Supreme Court left the victorious coram nobis petitioners in a classic Catch-22 situation: hoping to persuade the Supreme Court to finally and unequivocally reverse and repudiate the decisions in their cases, they were unable--as prevailing parties in the lower courts--to bring appeals to the Court.
Irons argues that the Court "has both the inherent power and duty to correct its tainted records through a public repudiation of the wartime decisions."
This is a piece in the finest tradition of making academic work relevant to the real world--what Irons does so well. It's a persuasive piece of history, scholarship, and activism by somebody who helped make--and continues to make--that story. Highly recommended.
[Image: Gordon Hirabayashi, Minoru Yasui, Fred Korematsu]
Tuesday, February 26, 2013
In a 5-4 opinion this morning in Clapper v. Amnesty International USA, the Supreme Court rejected the standing of Amnesty International to challenge domestic surveillance under FISA, the Foreign Intelligence Surveillance Act of 1978 and its amendments, often called FAA (FISA Authorization Amendments).
The ruling puts an end to this challenge to the government's surveillance authority under FISA and ups the ante for any future challenge. The case says that a plaintiff can't bring a challenge by merely alleging likely surveillance; instead, a person has to show literal "certainly impending" surveillance or actual surveillance. Either way, the case is very tough. The problem is that a targeted individual has a real hard time showing that they will be or were subject to FISA surveillance--because it's secret. That's the whole point. But the Court said that the ruling doesn't completely insulate FISA from challenge: a person could challenge it after information obtained from surveillance leads to judicial or administrative proceedings; and an electronic communications service provider could challenge a government directive to assist in FISA-authorized surveillance. Still, even if today's ruling preserves those potential challenges, it almost certainly forecloses any pre-surveillance challenge by a target.
Recall that the Second Circuit held that Amnesty and the other organizations did have standing under Article III. The unanimous panel rejected the government's contentions that the challengers fears were speculative, writing that "importantly both the Executive and the Legislative branches of government believe that the FAA authorizes new types of surveillance, and have justified that new authorization as necessary to protecting the nation against attack, makes it extremely likely that such surveillance will occur."
The Supreme Court reversed. In an opinion by Justice Alito (joined by Chief Justice Roberts and Justices Scalia, Kennedy, and Thomas), the Court wrote that the plaintiffs' claimed injuries were simply too speculative--at each link in the chain:
- First, it's too speculative whether the government will imminently target communications to which the plaintiffs are parties (especially because the plaintiffs have no actual knowledge of the government's targeting practices under the FISA);
- But even if, it's too speculative whether the government would use its FISA authority (as opposed to some other surveillance authority) to listen in on the plaintiffs' communications;
- But even if, it's too speculative whether the FISA court would authorize surveillance on the plaintiffs; and
- Finally even if, it's too speculative whether the government would succeed in surveillance under this authority.
The Court also rejected the plaintiffs' claim that they suffered harm because they already took measures to protect themselves against surveillance. The Court said that plaintiffs can't sidestep the "imminent harm" requirement for standing (which they did not meet, as above) by claiming that they took steps to avoid a possible harm.
Justice Breyer dissented, joined by Justices Ginsburg, Sotomayor, and Kagan. Justice Breyer wrote that "there is a very high likelihood that Government, acting under the authority of [FISA], will intercept at least some of the [plaintiffs' communications.]" Dissent at 6 (emphasis in original). That's because the plaintiffs engage in communications that the government is authorized to intercept, there are strong motives to intercept, the government has intercepted similar communications in the past, and the government has the capacity to intercept. Justice Breyer wrote that this "very high likelihood" is enough: the Court has never used the requirement for "certainly impending" harm according to its literal definition; instead, the Court's used this language more flexibly.
It's not clear whether the Court's ruling necessarily signals a tightening of standing requirements outside this unique context--a challenge to a government action, when, because of the very nature of the action, the target can't know with certainty that he or she has been subject to the government action. Justice Breyer discusses Court cases (at length), including relatively recent cases, that employ a more flexible imminence requirement. The Court did nothing to question the continued vitality of those cases. Indeed, in footnote 5, page 16, Justice Alito wrote that to the extent that a "substantial risk" standard is different than a "clearly impending" standing for the imminence requirement, the plaintiffs here didn't meet either.
RR and SDS
Thursday, February 21, 2013
The Supreme Court ruled yesterday in Gunn v. Minton that a federal statute granting jurisdiction over cases related to patents to federal courts alone did not mean that a state court lacked jurisdiction to hear an attorney malpractice case that grew out of such a patent case. Let's unpack that:
Minton brought a patent infringement suit in federal court and lost. Minton's attorneys didn't timely raise an argument that he thought was a winner, and the federal courts held that he waived it. So he brought a malpractice suit against his attorneys in state court for waiving the argument. He lost there, too. On appeal, he argued that federal courts had exclusive jurisdiction over the malpractice claim, and that the state trial court (which ruled against him) lacked jurisdiction.
Minton's argument turned on two points. First, 28 U.S.C. Sec. 1338(a) gives federal courts exclusive jurisdiction over any case "arising under any Act of Congress relating to patents." Next, his malpractice claim required the court to determine whether his waived argument in the original case--an argument based on federal patent law--would have gone his way. (If the waived argument would have gone his way, he might've succeeded in arguing that his attorneys engaged in malpractice by raising it too late.) In short, according to Minton: federal law requires that only federal courts determine issues of patents, and his malpractice claim turned on an issue of patents (even if a hypothetical one).
The Supreme Court disagreed. In a unanimous opinion by Chief Justice Roberts, the Court wrote that Minton's patent claim was, indeed, hypothetical--a case within a case--and that the state court's ruling on it (as part of the malpractice case) wouldn't have had any significant national impact. The ruling was based on the three factors in Grable & Sons Metal Products v. Darue Engineering (2005). That case said that when federal law didn't actually create the cause of action (as here, because Minton's claim was based on state malpractice law), the case can "aris[e] under" federal patent law only if it "necessarily raise[s] a stated federal issue, actually disputed and substantial, which a federal forum may entertain without disturbing any congressionally approved balance of federal and state judicial responsibilities." The Court ruled that Minton's case didn't satisfy the "substantial" part of that test, because the patent question was merely hypothetical and wouldn't have any significant national impact.
Tuesday, February 19, 2013
A unanimous Supreme Court ruled today that a district court's order that a child return to his or her home country is not moot on appeal just because any relief ordered on appeal is unlikely to get the child back to the U.S. The ruling means that the lower court can determine whether the district court's return order was in error--potentially resulting in a re-return order that may or may not have any practical effect.
The case, Chafin v. Chafin, arises out of an international custody dispute between a U.S.-citizen-dad and a U.K.-citizen-mom. Under the Hague Convention on the Civil Aspects of International Child Abduction, which is designed to work these things out, a federal district court ordered the return of the child to her country of "habitual residence," Scotland, and mom took her there. Dad appealed, but the circuit court dismissed the case as moot, saying that it "became powerless" to grant relief. What it meant was that it couldn't reverse the district court and order it to re-return the child (because the courts don't have authority for re-return), and in any event a re-return order wouldn't be effective
The Supreme Court disagreed. Chief Justice Roberts wrote for a unanimous Court that a case doesn't become moot just because a court may not have authority to grant the requested relief (in this case a re-return, which goes to the merits, not mootness, according to the Court) or just because the court's order is unlikely to have any practical effect.
Mr. Chafin's claim for re-return--under the Convention itself or according to general equitable principles--cannot be dismissed as so implausible that it is insufficient to preserve jurisdiction . . . and his prospects of success are therefore not pertinent to the mootness inquiry.
As to the effectiveness of any relief . . . even if Scotland were to ignore a U.S. re-return order, or decline to assist in enforcing it, this case would not be moot. The U.S. courts continue to have personal jurisdiction over Ms. Chafin, may command her to take action even outside the United States, and may back up any such command with sanctions. No law of physics prevents E.C.'s return from Scotland . . . and Ms. Chafin might decide to comply with an order against her and return E.C. to the United States.
Op. at 8-9 (citations omitted).
Justice Ginsburg, joined by Justices Scalia and Breyer, wrote in concurrence that international shuttling is no good for a child, and that Congress and the courts might work out a more streamlined procedure to protect against putting a child in this position in the first place.
Sunday, February 17, 2013
Judge James E. Boasberg (D.D.C.) in two separate cases in the last four weeks or so rebuffed an argument by the U.S. Attorney's Office for the District of Columbia that a plaintiff has no Bivens claim against federal officers for violation of First Amendment free speech rights. The holdings in these cases were unremarkable, given the state of circuit law and the approach in other circuits to the question--which recognize a plaintiff's cause of action to bring a First Amendment claim against federal officers. But the government's argument that the plaintiffs in these recent cases lacked this cause of action raises the specter that First Amendment Bivens claims could be on the chopping block.
(A Bivens claim is a suit against a federal officer for a violation of a constitutional right. There's no statutory authorization for this kind of suit (as there is against a state officer for violation of a constitutional right, under 42 U.S.C. Sec. 1983), and so the Supreme Court has implied a cause of action for cases against federal officers involving certain constitutional rights. "Bivens" refers to the pioneering case imlying such a cause of action, Bivens v. Six Unknown Named Agents.)
It's hardly surprising that the federal government would press the position that Bivens claims are limited and ought not to be extended beyond those discrete constituitonal claims where the Supreme Court has recognized them. And it's not news that this Supreme Court might not be particularly amenable to Bivens claims beyond those that it already recognized (and it hasn't recognized a Bivens claim under the First Amendment).
But the government's argument in the two recent D.C. District cases may suggest a new line of attack, based on language in a recent Supreme Court case, Ashcroft v. Iqbal.
Iqbal famously reaffirmed that there's no vicarious liability under Bivens. It also famously said that Bivens complaints need to meet a certain threshold of specificity--a new, higher threshold that made it more difficult to bring these kinds of claims. But it also said something else: It said that the Court is reluctant to extend Bivens to claims that it has not yet recognized, and it noted that it had not yet recognized a Bivens claim based on the First Amendment. The Court wrote:
Because implied causes of action are disfavored, the Court has been reluctant to extend Bivens liability "to any new context or new category of defendants." [Citations omitted.] That reluctance might well have disposed of respondent's First Amendment claim of religious discrimination. For while we have allowed a Bivens action to redress a violation of the equal protection component of the Due Process Clause of the Fifth Amendment, [citation omitted], we have not found an implied damages remedy under the Free Exercise Clause. Indeed, we have declined to extend Bivens to a claim sounding in the First Amendment. Bush v. Lucas, 462 U.S. 367 (1983).
Iqbal at 11. (In Bush, the Court rejected the petitioner's Bivens-free speech claim because there was a comprehensive statutory scheme already available to him.)
The government seized on this language from Iqbal in the two recent cases in the D.C. District and argued that it raised the question whether long-standing circuit law recognizing a First Amendment claim under Bivens was still viable.
Judge Boasberg rejected the argument:
Even if Defendants are correct in predicting the Supreme Court's response to questions not yet before it, this Court cannot accept its invitation to depart from this Circuit's binding precedent.
That circuit precedent goes back to Dellums v. Powell, 566 F.2d 167 (D.C. Cir. 1977). And as Judge Boasberg wrote, the Third and Ninth Circuits have also recognized First Amendment claims pursuant to Bivens.
This government line of attack, based on language in Iqbal, may not mean anything other than the government predictably arguing for a narrow Bivens doctrine. Or it may be the start of a new and revived effort to put Bivens-First Amendment claims that are recognized by the lower courts before the Supreme Court--and on the chopping block.
Judge Boasberg's ruling in Bloem v. Unknown Department of the Interior Employees allowed an Occupy-DC protester's claim to go forward against Interior employees for confiscating his property from the McPherson Square protest site. Judge Boasberg's ruling in Hartley v. Wilfert allowed a protester's claim to go forward against Secret Services officers who stopped her and asked for personal information as she tried to communicate a message about sex discrimination in law enforcement in front of the White House. In addition to ruling that Bivens extended to both First Amendment claims, Judge Boasberg also rejected the officers' qualified immunity claims.
February 17, 2013 in Cases and Case Materials, Courts and Judging, First Amendment, Fundamental Rights, Jurisdiction of Federal Courts, News, Opinion Analysis, Speech | Permalink | Comments (0) | TrackBack (0)
Friday, February 1, 2013
HHS today issued proposed new rules on the contraception coverage requirement under the Affordable Care Act, including new exemptions for religious employers. The proposed rules come on the heels of a spate of litigation by religious employers challenging the contraception coverage requirement as violating their religious liberties.
The D.C. Circuit most recently rejected these claims based on the administration's promise to issue new regs exempting religious employers, but the court also retained jurisdiction over the case, holding it in abeyance, to monitor the administration's adoption of new rules. The United States District Court for D.C. similarly recently rejected the claims, but declined to retain jurisdiction and dismissed the case.
According to HHS, the proposed rules allow non-profit religious organizations that object to contraception on religious grounds to side-step the ACA's contraception mandate, but still give employees free access to contraception. Here's how it'll work:
The proposed rules lay out how non-profit religious organizations, such as non-profit religious hospitals or institutions of higher education, that object to contraception on religious grounds can receive an accommodation that provides their enrollees separate contraceptive coverage, and with no co-pays, but at no cost to the religious organization.
With respect to insured plans, including student health plans, these religious organizations would provide notice to their insurer. The insurer would then notify enrollees that it is providing them with no-cost contraceptive coverage through separate individual health insurance policies.
With respect to self-insured plans, as well as student health plans, these religious organizations would provide notice to their third party administrator. In turn, the third party administrator would work with an insurer to arrange no-cost contraceptive coverage through separate individual health insurance policies.
The proposed rules also simplify and clarify the definition of "religious employer" for the purpose of exemption from the contraceptive coverage requirement.
The proposed rules are the first step in issuing new regulations. HHS will collect comments on the rules until April 8, 2013, and then move forward on finalizing them.
Monday, January 28, 2013
Judge Amy Berman Jackson (D.D.C.) on Friday dismissed the Roman Catholic Archbishop of Washington's challenge to the HHS regs pursuant to the Affordable Care Act that required insurers to provide coverage for preventive care, including contraception, for women. The ruling comes on the heels of the D.C. Circuit's ruling just last month that a similar challenge was not ripe.
Judge Jackson cited the D.C. Circuit ruling, Wheaton College v. Sebelius, and ruled that the Archbishop's challenge was similarly not ripe. (Recall that the D.C. Circuit reasoned that HHS committed to changing its regs, so that the contraception requirement wouldn't cover the religious employer in that case.) The D.C. Circuit wrote, "We take the government at its word and will hold it to it." So too Judge Jackson.
Unlike the D.C. Circuit, however, Judge Jackson did not hold the case in abeyance. Instead, she outright dismissed it, writing that the Archbishop could bring a new case if and when the government enforced a contraception mandate against it.
Wednesday, January 23, 2013
When the United States Supreme Court granted certiorari in Hollingsworth v. Perry (Perry v. Brown, "the Prop 8 case") and United States v Windsor ("the DOMA case"), it directed the parties to brief and argue the issues of Article III standing.
This question of standing arises because both California, initially under Governor Schwarzenegger, then Governor Brown, and the United States, under the Obama Administration, have concluded that the constitutionality of the laws should not be defended (given their conclusion that the laws were unconstitutional). In the case of Prop 8, the trial proceeded with the intervenors, who lost. In the case of DOMA, the statute was defended by BLAG, the Bipartisan Legal Advisory Group of the United States House of Representatives, losing in the District Court and again at the Second Circuit.
This is an unusual, if not unique, state of affairs. Usual discussions of Article III standing focus on the plaintiffs rather than losing defendants who are now appellants or petitioners.
All of the posts - - - seven! - - - are worth a read, but perhaps most interesting is Lederman's discussion of the outcome of any Court decision denying standing in the Prop 8 case.
Tuesday, January 22, 2013
The D.C. Circuit ruled today that a disabled veteran had standing to challenge in federal court the Drug Enforcement Agency's decision not to downgrade marijuana from a Schedule I drug. Even so, the court ruled against him on the merits. The ruling means that DEA's decision not to downgrade marijuana stands, and marijuana continues to be a Schedule I drug.
The case, Americans for Safe Access v. DEA, arose when the Coalition to Reschedule Cannabis petitioned the DEA to reschedule marijuana and downgrade it from a Schedule I drug. The DEA declined, and the petitioners sought APA review in federal court. Once in court, the petitioners' Article III standing became an issue, and the D.C. Circuit ordered argument on it.
The two-judge majority held that one petitioner, Michael Krawitz, a disabled veteran, had standing--and therefore that the case could move to the merits. Krawitz received pain management treatment from the VA. But as part of the program, the VA required him to sign a "Contract for Controlled Substance Prescription" that would have prohibited him from using medical marijuana. Krawitz refused to sign and turned to a non-VA physician in Oregon to obtain the referral forms required to participate in that state's medical marijuana program. Pursuant to VA policy, the VA did not pay for this. (VA policy prohibits VA providers from completing forms seeking recommendations or opinions regarding a vet's participation in a state marijuana program.)
The court ruled that Krawitz had standing--that he showed sufficient harm, causation, and redressability to get his foot in the door in federal court. Harm was easy: the court said that Krawitz's out-of-pocket expenses constituted sufficient harm. Causation and redressability were a little harder. The lynchpin for the court was that the DEA classification was the definitive classification for the federal government, including other agencies like the VA, creating a tight enough relationship between the DEA classification and the VA policy. Thus when the VA required Krawitz to sign that he'd forego medical marijuana and refused to pay for it, it did so because the DEA listed marijuana as a Schedule I drug; that's causation. And if Krawitz were to win on the merits--and get DEA to downgrade marijuana--the VA would follow suit and drop its requirement that pain management patients forego medical marijuana; that's redressability. All this means that the VA wasn't some random third-party intervenor breaking the causation and redressability chain between the DEA and Krawitz; instead, the VA policy was driven by the DEA classification. Here's how the court explained it:
Congress made clear when it passed the [Controlled Substances Act] that the [DEA's] scheduling decisions should serve as the federal government's "authoritative statement" on the legitimacy of particular narcotics and dangerous drugs. . . . When the DEA classified marijuana as a Schedule I drug, pursuant to its delegated authority under the CSA, it announced an authoritative value judgment that surely was meant to affect the policies of third-party federal agencies.
Unsurprisingly, the VA has heeded the DEA's judgment regarding marijuana, thus making the question of causation relatively easy in this case.
. . .
The only reason the VA cites for implementing [its policy on marijuana] is the classification of marijuana as a Schedule I drug. Therefore, were marijuana rescheduled to reflect its potential for medical use, the VA would have no expressed reason to retain [its policy] and VA clinicians would likely be subject to a non-discretionary duty to complete Krawitz's state medical marijuana forms.
Op. at 18-20.
(Judge Henderson wrote in dissent that Krawitz's standing arguments came too late.)
But even as the court ruled in favor of standing, it ruled against the petitioners on the merits. It held that the DEA's decision not to reclassify marijuana wasn't arbitrary and capricious--in particular, that substantial evidence supported the agency's determination that studies showing a "currently accepted medical use" do not exist.
Monday, December 31, 2012
The Seventh Circuit ruled last week in Richards v. NLRB that the petitioners lacked standing to challenge President Obama's 2012 recess appointments to the NLRB. The ruling means that this challenge to the recess appointments is dismissed. We posted on another challenge, in the D.C. District, with links to other posts on those recess appointments, here.
The Seventh Circuit case arose out of a dispute over unions' rule that required non-union employees to file an annual objection to opt out of paying dues for the unions' non-collective-bargaining activities. (Non-union members that are part of a union's collective bargaining unit can be charged dues for a union's collective bargaining, but they cannot be required to pay dues for non-collective-bargaining activities, like political activities.) Non-members filed unfair labor practice charges against the unions, arguing that the annual renewal requirement violated the unions' duty of fair representation by placing an undue burden on objectors. They sought an order striking the policies and a refund for non-members who at one time objected but failed to renew their objections. The petitioners did not seek a refund for themselves, because they renewed their objections every year.
The NLRB granted the order striking the annual renewal requirement, but denied the refund for other non-members.
While the case was pending at the NLRB (on the petitioners' motion for reconsideration), on January 4, 2012, President Obama made three recess appointments to the Board, without which the Board would have lacked a quorum. The NLRB later denied the petitioners' motion for reconsideration.
The petitioners argued that President Obama's appointments were invalid, and therefore that the NLRB's action on reconsideration was invalid. They said that the Recess Appointments Clause allowed the President to make recess appointments only during intersessions of Congress (any recess between the two annual sessions of Congress, generally starting in December and ending on January 3, when the next session starts), not intrasessions of Congress (any recess during an annual session of Congress). They also said that the Senate didn't consider itself in recess when President Obama made the appointments. (It was in pro forma sessions.)
The Seventh Circuit dismissed the case for lack of standing and didn't reach the merits. The court ruled that the plaintiffs already got all the relief they asked for and all they qualified for--that they suffered no injuries from NLRB decisions that could be remedied on appeal. In particular, the court said that the NLRB already struck the annual renewal requirement, and that the petitioners didn't qualify for a refund because they renewed their objections annually and didn't pay the non-collective-bargaining assessment.
The court also ruled that the plaintiffs didn't have standing to seek postage fees they paid for their annual objection renewals, because they didn't raise this claim at the NLRB.
December 31, 2012 in Appointment and Removal Powers, Cases and Case Materials, Executive Authority, Jurisdiction of Federal Courts, News, Opinion Analysis, Separation of Powers, Standing | Permalink | Comments (0) | TrackBack (0)
Sunday, December 23, 2012
Judge Emmet G. Sullivan (D.D.C.) on Friday dismissed Common Cause v. Biden, the legal challenge to the Senate's filibuster rule. Recall that Judge Sullivan heard oral arguments in the case earlier this month, and that standing was front and center. it wasn't surprising then that Judge Sullivan's ruling on Friday turned on standing, and on separation of powers.
The ruling ends the case, unless and until the plaintiffs appeal. It seems unlikely that the D.C. Circuit would rule differently. In any event, if the Senate Democrats succeed in reforming the filibuster at the beginning of the next Congress, the case may become moot.
Judge Sullivan ruled that the plaintiffs lacked standing. As to the House members: he wrote that he was "not persuaded that their alleged injury--vote nullifcation--falls into a narrow exception enunciated by the Supreme Court in Raines v. Byrd." Op. at 2. As to the other plaintiffs: they failed to "demonstrate that this Court can do anything to remedy the alleged harm they have suffered: the inability to take advantage of the opportunity to benefit from proposed legislation [the DREAM Act] that was never debated, let alone enacted." Op. at 2.
On separation of powers, Judge Sullivan said that Article I reserves to each House the power to determine its own rules, and there's nothing in the Constitution constraining the Senate from allowing debate to continue absent a super-majority vote. "[A]bsent a rule's violation of an express constraint in the Constitution or an individual's fundamental rights, the internal proceedings of the Legislative Branch are beyond the jurisdiction of this Court." Op. at 3.
December 23, 2012 in Cases and Case Materials, Congressional Authority, Courts and Judging, Jurisdiction of Federal Courts, News, Opinion Analysis, Political Question Doctrine, Separation of Powers, Standing | Permalink | Comments (0) | TrackBack (0)
Monday, December 17, 2012
The government late last week moved to dismiss Al-Aulaqi v. Panetta, the case for civil damages brought by family members of those killed in the government's targeted killing of Anwar al-Aulaqi. We covered the complaint here; the ACLU, which represents the plaintiffs, has a case page here.
The government's motion isn't a surprise. It raises all the expected separation-of-powers arguments, plus a couple others. As the motion notes, the tide of recent circuit rulings is behind it--at least insofar as several circuits have dismissed similar torture cases against high-level government officials because they raised "special factors" under a Bivens analysis. That seems the likely result here, too.
This excerpt from the introduction pretty well summarizes the government's position:
But courts have recognized that the political branches, with few exceptions, have both the responsibility for--and the oversight of--the defense of the Nation and the conduct of armed conflict abroad. The Judiciary rarely interferes in such arenas. In this case, Plaintiffs ask this Court to take the extraordinary step of substituting its own judgment for that of the Executive. They further ask this Court to create a novel damages remedy, despite the fact that--based on Plaintiffs' own complaint--their claims are rife with separation-of-powers, national defense, military, intelligence, and diplomatic concerns. Judicial restraint is particularly appropriate here, where Plaintiffs seek non-statutory damages from the personal resources of some of the highest officials in the U.S. defense and intelligence communities. Under these weighty circumstances, this Court should follow the well-trodden path the Judiciary--and particularly the D.C. Circuit--have taken in the past and should leave the issues raised by this case to the political branches.
Memo at 1.
More particularly, the government argues that the political question doctrine bars the court from hearing this case; that "special factors" counsel against a judicial remedy under Bivens; and that the defendants enjoy qualified immunity.
The government also argues that the plaintiffs failed to plead that they had capacity to sue as representatives of the killed. Under Federal Rule of Civil Procedure 17(b), the plaintiffs can act as representatives of an estate only if the law of the jurisdiction where the court sits allows. Here, the government says that they didn't comply with the requirements of D.C. law.
Finally the government claims that the plaintiffs' bill of attainder claim fails, because the Bill of Attainder Clause doesn't apply to executive actions (it only applies to bills).
Circuits that have ruled on government actor liability for torture have announced the courts closed for this kind of case. If this recent history is any guide, this case, too, will have a hard time getting off the ground.
December 17, 2012 in Cases and Case Materials, Courts and Judging, Fundamental Rights, Jurisdiction of Federal Courts, News, Political Question Doctrine, Separation of Powers | Permalink | Comments (0) | TrackBack (0)
Thursday, December 13, 2012
The Court's grant of certiorari last week in two same sex marriage cases included the question of standing in both.
The standing issues atypically arise not from the original plaintiffs' qualifications under Article III of the Constitution, but flow from the governments' decision not to defend the constitutionality of the challenged government action: California's refusal to defend Proposition 8 in Perry v. Brown and the Obama Administration's decision not to defend DOMA in Windsor (and in previous cases beginning in February 2011).
The inimitable Linda Greenhouse shares her analysis of the standing issues, admitting she is fascinating by the "procedural game the Supreme Court is playing in the same-sex marriage cases."
Greenhouse writes in the NYT Opinionator that her original thought was that the Court could be using "the jurisdictional issue as a kind of safety valve for a deeply polarized court."
But on reflection, that theory doesn’t really make sense, because a finding of no jurisdiction under these circumstances would call into question the court’s ability to deal with other instances of changed government positions, and would be inconsistent with the action the court took just last week in the prison immunity case. Further, a finding of no jurisdiction would amount to a huge grant of power to the executive branch at the expense of Congress, enabling the president to cut off further judicial review any time a law that he never liked in the first place is declared unconstitutional by a lower court. While executive power certainly has its fans on the court, including Chief Justice Roberts and Justice Antonin Scalia, I’d be surprised if that sweeping proposition could capture five votes.
Greenhouse then provides some her own hypothesis - - - and it is certainly worth a read.
Monday, November 26, 2012
The Supreme Court today reopened one of the cases challenging the federal Affordable Care Act and sent it back for further proceedings at the Fourth Circuit. The move means that the lower court, and possibly the Supreme Court, will have another crack at certain issues that the Supreme Court dodged this summer in its ruling in NFIB v. Sebelius.
Recall that the Fourth Circuit rejected a challenge to the ACA by several individuals and Liberty University in September 2011, holding that the Anti-Injunction Act barred the claim. The Supreme Court declined to review that case, Liberty University v. Geithner. But today the Court reopened the case, vacated the Fourth Circuit ruling, and sent the case back for further proceedings in light of the Court's ruling in NFIB.
The plaintiffs in the case originally challenged the universal coverage provision (the so-called "individual mandate," requiring individuals to acquire health insurance or to pay a tax penalty) and the employer mandate (requiring employers with more than 50 employees to provide health insurance coverage for their employees), arguing that they exceeded Congress's taxing and commerce powers and violated the Tenth Amendment, Article I, Section 9's prohibition against unapportioned capitation or direct taxes (the Direct Tax Clause), and the Religion Clauses and the Religious Freedom Restoration Act (among others). (As to the Religion Clauses, the plaintiffs argued that the requirements would cause them to support insurance companies that paid for abortions, a practice that they claimed ran against their religions.)
The district court ruled against the plaintiffs on all counts and dismissed the case. The Fourth Circuit dismissed the case under the AIA and didn't reach the merits.
The Supreme Court ruled in NFIB that the AIA did not bar the Court from ruling on the tax question, that Congress validly enacted the universal coverage provision under its Article I, Section 8 power "to lay and collect Taxes," and that it didn't violate the Direct Tax Clause. Thus after NFIB these issues appear to remain open on remand:
- Whether the mandates violate the Religion Clauses or the RFRA;
- Whether the employer mandate violates the taxing authority or the Direct Tax Clause;
- Whether the mandates violate equal protection;
- Whether the mandate violates free speech and associational rights.
As to the Religion Clauses, the district court ruled that the ACA's religious exemptions to universal coverage were permissible accommodations (and thus didn't violate the Establishment Clause) and that the ACA didn't require the plaintiffs to pay for abortions (and thus didn't violate the Free Exercise Clause or the RFRA).
As to the employer mandate: It's hard to see how the Supreme Court's tax analysis of the individual mandate in NFIB wouldn't apply with equal force to the employer mandate.
If the district court was right on the First Amendment and equal protection claims (as it seems), and if the Supreme Court's tax analysis applies with equal force to the employer mandate, this case doesn't seem to have much of a future.
But then again, that's what many of us said about NFIB.
November 26, 2012 in Abortion, Association, Cases and Case Materials, Commerce Clause, Congressional Authority, Equal Protection, Establishment Clause, First Amendment, Free Exercise Clause, Fundamental Rights, Jurisdiction of Federal Courts, News, Religion, Taxing Clause, Tenth Amendment | Permalink | Comments (0) | TrackBack (0)
Friday, November 9, 2012
The en banc Seventh Circuit this week ruled in Vance v. Rumsfeld that two American military contractors had no cause of action against former Defense Secretary Donald Rumsfeld for torture. The ruling was expected: the court previously vacated the three-judge panel ruling allowing the case to move forward; oral arguments suggested that the full court was hostile to the plaintiffs' claims; and the ruling aligns with similar (but distinguishable and less sweeping) rulings in the Fourth and D.C. Circuits. We posted last on the case, with links to an earlier post, here.
The ruling ends the plaintiffs' case and effectively creates absolute immunity against such claims for military personnel and their civilian commanders--at least in the Seventh Circuit. Given similar rulings in the Fourth and D.C. Circuits--and no circuit going the other way--the case almost surely will not attract the attention of the Supreme Court. (Even if the Court took it up, it would almost certainly affirm the Seventh Circuit's ruling, given its trend with Bivens actions.) The case also extended the no-supervisory-liability rule for Bivens claims (affirmed in Iqbal), holding that Secretary Rumsfeld's alleged authorization of torture, even if true, was simply too attenuated from the actions of those who actually tortured the plaintiffs.
The case involved two American military contractors who claimed that they were detained and tortured by military authorities in Iraq. They sued Secretary Rumsfeld under Bivens based on his alleged authorization of torture techniques.
The en banc Seventh Circuit reversed a three-judge panel and held that Bivens did not offer a remedy to the plaintiffs. Chief Judge Easterbrook, writing for the court, set the tone early in his opinion, expressing hostility to "creating new Bivens claims":
[The Supreme Court] has not created another [Bivens] remedy during the last 32 years--though it has reversed more than a dozen appellate decisions that had created new actions for damages. Whatever presumption in favor of a Bivens-like remedy may once have existed has long since been abrogated. The Supreme Court never created or even favorably mentioned the possibility of a non-statutory right of action for damages against military personnel, and it has twice held that it would be inappropriate to create such a claim for damges. The Court has never created or even favorably mentioned a non-statutory right of action for damages on account of conduct that occurred outside the borders of the United States. Yet plaintiffs propose a novel damages remedy against military personnel who acted in a foreign nation--and in a combat zone, no less.
Op. at 9. Chief Judge Easterbrook wrote that "special factors" counseled against a Bivens remedy, in particular the courts' relative inability to assess the merits of military policies and decisions. Chief Judge Easterbrook also mentioned that Congress declined to create a statutory remedy, suggesting that it didn't want plaintiffs suing military personnel or their superiors, and that Congress created two administrative paths to remedies but that the plaintiffs did not pursue them. "But Congress has not authorized awards of damages against soldiers and their superiors, and creating a right of action in common-law fashion would intrude inapropriately into the military command structure." Op. at 17.
Note that the ruling (Part III) extends to "soldiers and their superiors," even though this case was only against Secretary Rumsfeld.
Chief Judge Easterbrook also wrote that Secretary Rumsfeld's authorization of torture was too attenuated from the actions of those who actually tortured the plaintiffs to survive the no-supervisor-liability rule for Bivens claims. The plaintiffs sought to navigate this rule by alleging that Secretary Rumsfeld personally authorized torture--i.e., that he wasn't vicariously liable, but was rather directly responsible. But Chief Judge Easterbrook wrote that Iqbal requires that a defendant "wants the unconstitutional or illegal conduct to occur." Op. at 19. That, he said, the plaintiffs did not allege.
Judge Wood concurred in the judgment only but wrote separately to emphasize that the alleged actions were torture, and could not hide behind the euphamism of enhanced interrogation techniques. Judge Wood also disagreed with the majority insofar as its opinion (Part III) would insulate military personnel (and not merely the Secretary of Defense) from Bivens liability.
Judges Hamilton, Rovner, and Williams all wrote a separate dissent and all joined each others' dissents, emphasizing different points. Judge Hamilton pointed out that the ruling gives more rights to aliens (under the Torture Victim Protection Act) than U.S. citizens and explained in great detail why U.S. law, in fact, assumes that the plaintiffs should have had a Bivens claim. Judge Rovner argued that the plaintiffs pleaded sufficiently specific facts related to Secretary Rumsfeld's direct responsibility to survive the pleading standards set in Iqbal and Twombley. And Judge Williams emphasized the remarkable scope of the majority's opinion. "No case from our highest court or our sister circuits has approached such a sweeping conclusion." Op. at 73.
November 9, 2012 in Cases and Case Materials, Courts and Judging, Fundamental Rights, Jurisdiction of Federal Courts, News, Opinion Analysis, Recent Cases, Separation of Powers, War Powers | Permalink | Comments (0) | TrackBack (0)
Monday, October 29, 2012
The Supreme Court heard oral arguments today in Clapper v. Amnesty International, the case testing the plaintiffs' standing to challenge the government's vastly expanded surveillance authority under the FISA Amendments Act, or the FAA. We posted on the lower court ruling that a group of attorneys, journalists, and human rights organizations had standing to challenge the FAA here.
The plaintiffs always faced a unique standing problem in challenging the FAA: The very nature of government surveillance says that those surveilled cannot know that they've been surveilled, or harmed, especially when the real targets of the surveillance are the plaintiffs' overseas clients and contacts (and not immediately the plaintiffs themselves). As a result, the plaintiffs had to argue two kinds of harm to satisfy standing requirements: (1) that they've had to take current measures to ensure against FAA surveillance and (2) that their communications are imminently going to be surveilled (given the nature of them).
The government, on the other hand, argued that any harm is purely speculative and the result of the plaintiffs' own doing (and not the authority under the FAA), and that any harm could have occurred, anyway, but under a different surveillance authority. (This last argument says that the plaintiffs' harm isn't sufficiently traceable to the FAA, and that a judgment on the FAA wouldn't redress the plaintiffs' harm. Causation and redressibility are two other requirements for standing, in addition to harm.)
The Court seemed skeptical of the government's claims at arguments today. Justices Ginsburg, Breyer, Sotomayor, and Kagan grilled SG Verrilli on his arguments, and Justices Sotomayor and Kagan seemed especially troubled that the government's position would leave the plaintiffs without any effective way to challenge surveillance under the FAA. Chief Justice Roberts and Justice Scalia chimed in with concerns about the government's argument that it might conduct surveillance of the plaintiffs' communications under a different authority, leaving the plaintiffs unable to show causation or redressibility. (It wasn't clear that their concerns with the government's position extended beyond that particular argument, though.) And finally Justice Kennedy seemed especially troubled with the government's position on the attorney-plaintiffs: the government said that any decision by the attorney-plaintiffs not to communicate with overseas clients for fear of surveillance was caused by rules of professional responsibility, and not by the threat of FAA surveillance. (Justice Kennedy's concern is one to watch. This harm--attorney-plaintiffs curtailing communication with clients for fear of surveillance--is the most acute and well defined harm in the case. It's also one that will resonate best with this group of nine lawyers. And it's important that Justice Kennedy raised it: He may provide the key vote.)
In all, the government's argument came across as overly formalistic, especially considering the very high stakes for the plaintiffs. The Court's questions seemed to highlight that.
On the other side, there was some back-and-forth on just how certain government surveillance must be to create a sufficiently likely harm--"certainly impending," or "substantial risk." Chief Justice Roberts pushed for the former (and higher) standard, while Justice Kennedy pointed out that in those cases where we knew the government act was occurring (as here) the standard was the lower "substantial risk." Justice Alito asked whether the plaintiffs might manufacture their own standing (and thus work an end-run around a higher "certainly impending" standard) by alleging current preventative measures as the harm--just as the plaintiffs did here. As to the threat of surveillance and the plaintiffs' precautions against that threat, Chief Justice Roberts wondered whether that wasn't a harm in every case, e.g., in an ordinary criminal case when a criminal defense attorney seeks to get information from his or her client. (The attorney wouldn't use e-mail or phone; he or she would talk in person.) Finally, Justice Scalia asked whether the FISA court didn't serve as a check on Fourth Amendment violations.
If the government's argument was overly formalistic, the plaintiffs' claimed harms might have seemed too vague to some on the Court, especially if the Court adopts the higher "certainly impending" standard for the plaintiffs' claimed future harms.
Arguments today revealed what we already knew about this case: It'll be close. But on balance, the Court seemed to favor standing.