Tuesday, November 24, 2015

ACLU Sues to Force Indiana to Take Syrian Refugees

The Indiana ACLU filed suit late yesterday in federal court seeking to force Indiana to take Syrian refugees. The lawsuit argues that Governor Mike Pence's action halting state aid to refugee resettlement efforts is preempted by federal law and violates equal protection and Title VI of the Civil Rights Act of 1964.

The case started when Indiana Governor Mike Pence said that his state would not accept Syrian refugees after the Paris attacks, and ordered state agencies not to provide assistance for resettlement efforts. Indiana then turned away a Syrian family (that was subsequently placed in Connecticut).

The ACLU sued on behalf of Exodus Refugee Immigration, Inc., a private non-profit that provides nuts-and-bolts assistance to refugee families in the state. Exodus claims it incurred costs in anticipation of the federal government accepting 10,000 Syrian refugees, some of whom would come to Indiana, but did not receive reimbursement from the state (as it usually would) after Governor Pence ordered state agencies to stop supporting Syrian refugee resettlement.

The complaint argues that the INA preempts Governor Pence's order. It recognizes that the INA requires the federal government to "take into account recommendations of the State," among other considerations and to the extent possible, but correctly says that "[t]he INA does not allow a State to veto placement of a refugee within the State . . . ." In short:

Defendants' suspension of the resettlement of Syrian refugees in Indiana is preempted by the Constitution and federal law for multiple reasons, including that it impinges on the exclusively federal authority to regulate immigration and to classify non-citizens; that federal law occupies the field of refugee admission and resettlement; and that it conflicts with the Immigration and Nationality Act and other federal statutes.

The plaintiffs also argue that Governor Pence's order violates equal protection and Title VI.

Indiana is one of 31 states that have "refused" to accept Syrian refugees after the Paris attacks. (The quotes are because states don't have this authority.) But this appears to be the first federal lawsuit against a governor's order to halt state support for resettlement.

November 24, 2015 in Cases and Case Materials, Equal Protection, Federalism, News, Preemption | Permalink | Comments (0)

Monday, November 23, 2015

Second Circuit Keeps Drone Memos Under Wraps

The Second Circuit ruled today that plaintiffs are not entitled to certain memos and documents from the Office of Legal Counsel outlining the legal justification for the government's targeted killing (drone) program.

The ruling means that the OLC documents will remain under wraps, and we won't now see (and may never see) the full paper trail for the program.

Recall that the New York Times, Charlie Savage, Scott Shane, and the ACLU sued to obtain OLC memos under FOIA. In the first round of the litigation, the Second Circuit ordered the release of a 2010 OLC memo, because government officials had revealed the contents in public statements and thus waived its right to invoke a FOIA exemption. (The officials' statements revealing the contents came before and soon after the document was released.)

In this second round of litigation, the court today said that the district judge properly withheld the documents, because they contained intelligence information. As to the plaintiffs' argument that the government disclosed the contents of one of these memos, a 2002 memo, the court said that the disclosure came too long after the document (8 years), and that the disclosure might have come up in a different context. The court explained:

However, the passage of a significant interval of time between a protected document and a Government official's subsequent statement discussing the same or a similar topic considered in the document inevitably raises a concern that the context in which the official spoke might be significantly different from the context in which the earlier document was prepared. Even if the content of legal reasoning set forth in one context is somewhat similar to such reasoning that is later explained publicly in another context, such similarity does not necessarily result in waiver. Moreover, ignoring both the differences in context and the passage of a significant interval of time would risk requiring Government officials to consider numerous arguably similar documents prepared long before and then measure their public words very carefully so as not to inadvertently precipitate a waiver of protection for those earlier documents.

The upshot is that we won't get these additional OLC documents and won't learn much or anything more than we already know about the legal justifications for the program.

November 23, 2015 in Cases and Case Materials, News, Opinion Analysis, War Powers | Permalink | Comments (0)

Wednesday, November 18, 2015

Students Lack Standing to Challenge SAT, ACT Sale of Personal Information for Profit

The Seventh Circuit ruled today that students who authorized the corporations who run the SAT and ACT standardized tests to provide their personal information to educational organizations lacked standing to challenge the corporations' sale of that information. The ruling means that the putative class action against the SAT and ACT is dismissed.

Along the way, the court also ruled that the Iqbal/Twombly heightened pleading standard ("plausibility") applies to facial challenges to standing under Rule 12(b)(6). This may raise the bar for plaintiffs in pleading and arguing standing. This portion of the ruling aligns with the approach in several other circuits; but it's in tension with the Ninth Circuit, which says that "Twombly and Iqbal are ill-suited to application in the constitutional standing context."

The case arose when ACT, Inc., and The College Board (which administers the SAT) sold personal information of students who signed up to take the tests. The students agreed that the corporations could share their personal information with educational groups (schools, scholarship funds, and the like), but they didn't know that the corporations were going to sell their personal information. (The price was small--$.33 per student per educational group--but would add up quickly for the defendants.) The plaintiffs argued that they were harmed by the sale because (1) they should have received some of the proceeds, (2) the sale diminished the value of their personal information, and (3) they paid a fee to take the ACT or SAT, which presumably would have been lower if they had not consented to the sale.

The Seventh Circuit flatly rejected these claims. The court ruled that under the Iqbal/Twombly standard, the plaintiffs' allegations didn't plausibly suggest that they'd been harmed. The court said that just because the defendants benefited doesn't mean that the plaintiffs were harmed for standing purposes: "Plaintiffs have claimed injury based solely on a gain to Defendants and without alleging a loss to themselves." (Although the court applied the Iqbal/Twombly standard, it looks like the plaintiffs would have failed even without it.)

The court rejected the plaintiffs' claim that their complaint gave rise to a reasonable inference that if they knew of the sale they would have conditioned their permission on receipt of a portion of the proceeds. The court said that the plaintiffs didn't provide factual support for the inference, so it didn't even need to get to whether the claim gives rise to a plausible claim of subject matter jurisdiction under Iqbal and Twombly.

In other words, it's not clear that the heightened Iqbal/Twombly standard mattered to the outcome at all. Still, the case says that the standard now applies to standing in the Seventh Circuit.


November 18, 2015 in Cases and Case Materials, Courts and Judging, News, Opinion Analysis, Separation of Powers | Permalink | Comments (0)

Monday, November 9, 2015

President, DAPA Lose at Fifth Circuit

A sharply divided panel of the Fifth Circuit ruled today that states had a substantial likelihood of success on the merits in their case against the President's deferred action program for parents of Americans and lawful permanent residents, or DAPA. The ruling affirms a nationwide injunction issued by the lower court and means that the government is barred from enforcing DAPA across the country--unless and until the government files for and wins a stay and appeals.

The ruling is a win for plaintiff-states that don't like DAPA and a loss, though perhaps not unexpected (at the conservative Fifth Circuit), for the government.

The dispute between the majority and the dissent on the merits comes down to whether DAPA is really an exercise of discretionary non-enforcement (majority says no; dissent says yes) and whether DAPA violates federal law (majority says yes; dissent says no). The majority and dissent also dispute the states' ability to bring the suit in the first place, or their standing.

This ruling is surely not the last say on the question; this case is undoubtedly going to the Supreme Court.

The court issued four key holdings. First, the court said that the states had standing, and that the case is justiciable. Next, the court said that DAPA likely violated notice-and-comment rules of the APA. Third, the court said that DAPA likely violated federal law (the Immigration and Naturalization Act) and therefore violated substantive APA requirements. Finally, the court said that the district court was within its discretion to issue a nationwide injunction.

The court did not address the plaintiffs' Take Care Clause challenge.

As to standing, the court said as an initial matter that the states were due "special solicitude" for standing under Massachusetts v. EPA. The court went on to say that the states had standing because DAPA would require them to issue drivers licenses to DAPA beneficiaries, because DAPA would "impos[e] substantial pressure on them to change their laws" for drivers licenses, and because the states "now rely on the federal government to protect their interests" in immigration matters.

On the procedural APA claim, the court ruled that the states "established a substantial likelihood that DAPA would not genuinely leave the agency and its employees free to exercise discretion," despite conflicting evidence on the point, apparently ignored by the lower court. The court also ruled that DAPA is a substantive rule (and not procedural), because "receipt of DAPA benefits implies a 'stamp of approval' from the government and 'encodes a substantive value judgment,' such that the program cannot be considered procedural." As a result, according to the court, DAPA was subject to APA notice-and-comment rulemaking, and, because the government didn't use notice and comment, the states had a substantial likelihood of success on their procedural APA claim.

On the substantive APA claim, the court said that DAPA is "manifestly contrary to the [Immigration and Naturalization Act]," in particular, the INA's "specific and intricate provisions" that "directly addressed the precise question at issue." The court rejected the government's claim that DAPA is consistent with historical practice.

Importantly, the court did not "address whether single, ad hoc grants of deferred action made on a genuinely case-by-case basis are consistent with the INA . . . ." It only concluded "that the INA does not grant the Secretary discretion to grant deferred action and lawful presence on a class-wide basis to 4.3 million otherwise removable aliens."

Finally, the court said that the district court could issue a nationwide injunction, because, in short, immigration is a nationwide issue that calls for uniform regulation.

Judge King wrote a lengthy and sharp dissent, challenging the majority at each turn.

November 9, 2015 in Executive Authority, Jurisdiction of Federal Courts, News, Opinion Analysis, Separation of Powers, Standing | Permalink | Comments (0)

Saturday, November 7, 2015

Supremes Take Up Contraception Mandate Accommodation

The Supreme Court yesterday agreed to hear the cases testing whether the government's accommodation to the "contraception mandate" violates the Religious Freedom Restoration Act.

The move was expected. The Court will likely hear oral arguments in March 2016.

The cases involve HHS's requirement under the Affordable Care Act that employers' health insurance plans include certain kinds of contraception, and the government's accommodation to that requirement for religious non-profits. (Religions are already exempt.) The accommodation simply requires non-profit that objects to providing contraception on religious grounds to so notify the government (a letter will do, or the non-profit can use a government form). At that point, the government requires the insurer or third-party administrator to provide contraception, free of charge, directly to the non-profit's employees.

Some religious non-profits argue that the accommodation itself violates the RFRA, because their notification to the government triggers the provision of contraception. Seven circuits have rejected that claim; only the Eighth Circuit has accepted it. We posted most recently, on the Eighth Circuit's ruling, here.

The accommodation isn't a new idea. The Court itself identified it as a possible solution to objecting closely held for-profit corporations in Hobby Lobby. But the Court didn't say whether it would violate the RFRA--that issue simply wasn't before the Court.

The parties in the case will argue whether the accommodation creates a "substantial burden" on their religious freedoms and, if so, whether it is narrowly tailored to meet a compelling government interest.

The non-profits' arguments push the bounds of the RFRA. After all, if an accommodation can be a "substantial burden"--and one that operates in such a minimally intrusive way--it's hard to see what couldn't be a substantial burden on some religion. Moreover, to get to the non-profits' result, the courts have to accept their view of how the law works--that the accommodation triggers the provision of contraception (in contrast to the view that the law itself triggers the requirement that insurers provide contraception). The Eighth Circuit (and the Eighth Circuit alone) got there, but seemingly by deferring to the non-profits' view of their own religion, as I explained here. Under RFRA, the courts certain defer to a religion on its own tenets and beliefs, but it's hard to see why the courts should extend that deference to a religious belief about the way the law works.

November 7, 2015 in Cases and Case Materials, News, Opinion Analysis, Religion | Permalink | Comments (1)

Wednesday, November 4, 2015

Sixth Circuit Says Clean Air Act Does Not Preempt State Common Law Claims

The Sixth Circuit ruled yesterday that the federal Clean Air Act does not preempt state common law claims.

The ruling was hardly a surprise, given the plain language of the CAA. Still, the case is a victory for those who seek to enforce clean air requirements through the higher standards of state common law. (The court emphasized several times that the CAA permits states to adopt more stringent standards than the federal standards.) The ruling also allows the plaintiffs' state common law case to move forward.

The case arose when neighbors of Diageo Americas Supply, Inc., a whiskey distiller, complained that ethanol vapors from the facility combined with condensation to propagate "whiskey fungus" on their property. The neighbors filed suit in federal court, alleging state common law caused of action. Diageo moved to dismiss, arguing that the CAA preempted these claims.

The Sixth Circuit rejected that argument. The court looked to the plain text of the Act, congressional purposes, and Supreme Court precedent--all of which pointed against preemption. But the case can be resolved on the text alone, in particular, the savings clause. As the court explained:

The states' rights savings clause of the Clean Air Act expressly preserves the state common law standards on which plaintiffs sue. The clause saves from preemption "the right of any State or political subdivision thereof to adopt or enforce (1) any standard or limitation respecting emissions of air pollutants or (2) any requirement respecting control or abatement of air pollution," except that the "State or political subdivision may not adopt or enforce any emission standard or limitation" that is "less stringent" than a standard or limitation under an applicable implementation plan or specified federal statute.

The court went on to say that state courts are part of the "state," and that common law requirements are "requirement[s] respecting control or abatement or air pollution."

In addition to looking at text, purpose, and precedent, the court added a federalism point:

When Congress acts to preempt state law--especially in areas of longstanding state concern--it treads on the states' customary prerogatives in ways that risk upsetting the traditional federal-state balance of authority. This is why there is a strong presumption against federal preemption of state law, one that operates with special force in cases "in which Congress has legislated . . . in a field which the States have traditionally occupied." Environmental regulation is a field that the states have traditionally occupied. Accordingly, even if the express language of the states' rights savings clause here did not preserve state common law claims, principles of federalism and respect for states' rights would likely do so in the absence of a clear expression of such preemption.

November 4, 2015 in Cases and Case Materials, Federalism, News, Preemption | Permalink | Comments (0)

Monday, November 2, 2015

Standing, Access Case Meets Sharply Divided Court

The Supreme Court heard oral arguments today in Spokeo v. Robins, the case testing whether Congress can confer standing on a plaintiff by statute, even when the plaintiff lacks a sufficient and independent harm for Article III standing purposes.

The case is important for what it will say about access to the courts, and, in particular, class actions. The justices at oral arguments seemed sharply divided along conventional ideological lines, with progressives favoring access and conservatives, including Justice Kennedy, going the other way. If so, the case will take its place among the line of cases coming out of the Roberts Court that limit access to the judiciary and favor (corporate and government) defendants.

(Check out the outstanding Vanderbilt roundtable on the case, with six different takes, available here.)

The case arose when Spokeo, the owner of a web-site that provides searchable reports containing personal information about individuals, reported false information about Thomas Robins. For example, Spokeo reported that Robins had a graduate degree (he doesn't), that he was employed in a professional or technical field, with "very strong" "economic health" and wealth in the "Top 10% (he's unemployed), and that he's in his 50s, married, with children (he's not in his 50s, not married, and no children).

Robins filed suit, claiming that Spokeo's representations violated the federal Fair Credit Reporting Act. He sought damages under the Act for a willful violation. Robins claimed that Spokeo's false report made it harder for him to find a job.

Justices Kagan and Scalia marked out the competing positions early in Spokeo's argument, and at times bypassed Spokeo's attorney (Andrew Pincus) entirely and simply argued with each other. At one point, Justice Scalia even intervened to answer a question for Pincus, and then told Pincus that it was the right answer. In short, Justice Kagan argued that Congress identified a concrete harm in the Act and provided a remedy for it; Justice Scalia argued that any harm was merely "procedural," because any harm was only Spokeo's violation of the Act's procedures (with no additional concrete harm). Here's a little of the exchange:

Justice Kagan: But did that procedural requirement--this is--this is exactly what Lujan says, "It's a procedural requirement the disregard of which could impair a concrete interest of the plaintiff."

And we distinguished that from procedural requirements in vacuo.

. . .

Justice Scalia: Excuse me. That--that would lead to the conclusion that anybody can sue . . . not just somebody who--whose information was wrong.

Pincus seemed to make an important concession in response to a question by Justice Kennedy, whether "Congress could have drafted a statute that would allow [Robins] to bring suit?" Pincus said yes, and proceeded to describe it--basically a statute that required a plaintiff to show a concrete harm that would be sufficient for Article III. If Justice Kennedy is in play, Pincus's softer position may assuage any concerns over an extreme position that Congress can never confer standing. The softer position also saves other statutes that have similar Congress-confered-standing provisions. (Justice Kennedy picked up this theme with Robins's attorney (William Consovoy) and noted that Consovoy's position of a Congress-created-harm (alone) seemed circular--but Consovoy didn't seem to give a satisfying answer.) At one point Pincus made another important concession: some plaintiffs might have standing under the FCRA, so long as they show an independent and sufficient harm.

On the other side, Chief Justice Roberts pressed Consovoy early on the limits of his argument--a point we're likely to see in the opinion:

Chief Justice Roberts: What about a law that says you get a--a--$10,000 statutory damages if a company publishes inaccurate information about you? . . . The company publishes your phone number, but it's wrong. That is inaccurate information about you, but you have no injury whatever. Can that person bring an action for that statutory damage?

Consovoy didn't have a response, or, rather, his response only opened new cans of worms. (Justice Breyer intervened and offered an interpretation of the statutory language that gives a cause of action to "any consumer who has obtained--who suffers from false information.") Chief Justice Roberts and Consovoy had a similar exchange later in the argument, too. Consovoy maintained that the FCRA was different than the Chief's hypotheticals, because the FCRA authorizes damages only for someone who was injured. He didn't seem to persuade the Chief on this point, though, despite Justice Breyer's help.

Justice Alito pointed to the record and argued that it didn't support a concrete harm. Indeed, he pointed out that nobody in the record (other than Robins himself) searched for him on Spokeo--a "quintessential speculative harm"--probably another point we'll see in the final opinion.

Chief Justice Roberts asked a different question--and a far more loaded one (politically, and constitutionally)--to the government, amicus for Robins:

Chief Justice Roberts: [L]et's kind of say your--your--Congress thinks that the president is not doing enough to stop illegal immigration, so it passes a law that says, anyone in a border State--so it's particularized--who is unemployed may bring an action against an illegal immigrant who has a job. And they get damages, maybe they get an injunction.

. . .

And I would have thought that the--the president would be concerned about Congress being able to create its own enforcement mechanism. I thought that you would be concerned that that would interfere with the executive prerogative.

The government tried to distinguish the hypo, but, again, counsel probably didn't persuade the conservatives.

November 2, 2015 in Cases and Case Materials, Congressional Authority, Courts and Judging, Executive Authority, Jurisdiction of Federal Courts, News, Opinion Analysis, Separation of Powers, Standing | Permalink | Comments (0)

Friday, October 30, 2015

D.C. Circuit Finds Competitor Standing in Case Against IRS

The D.C. Circuit ruled today that an association of CPAs and their firms had "competitor standing" to challenge an IRS program that allows previously uncredentialed tax return preparers who meet certain prerequisites to have their names listed in the IRS's online "Directory of Federal Tax Return Preparers."

The ruling is a victory for the association and allows the case to go forward on the merits.

The ruling is also a victory for anyone who wants to get into federal court to challenge an action that may give their competitors an edge, even if the link between the action and the edge is based only on "basic economic logic."

The IRS program allows previously uncredentialed tax return preparers--so-called "unenrolled preparers"--to get listed if they take a class and meet other requirements. The program is a boon to preparers who take advantage of it, because they'll get listed with the IRS and, as a result, get more tax preparation business. It'll also likely deal a blow to CPAs and other already-credentialed preparers, because they'll now have to compete toe-to-toe with lower-cost unenrolled preparers.

The association challenged the program for violating notice-and-comment rulemaking requirements. The district court dismissed the case for lack of standing. The association appealed and argued, among other things, competitor standing.

The D.C. Circuit agreed with the association. It wrote that association members "will face intensified competition as a result of the challenged government action. Specifically, participating unenrolled preparers will gain a credential and a listing in the government directory." The court accepted the association's claim that this "will 'dilute[] the value of a CPA's credential in the market for tax-return-preparer services' and permit unenrolled preparers to more effectively compete with and take business away from presumably higher-priced CPAs."

You might wonder why the link between the IRS program and the CPAs' harm isn't too speculative (under, say, Clapper v. Amnesty International). After all, the IRS program is voluntary, not compulsory, so it's not obvious that any unenrolled preparer will even participate; moreover, it's not obvious that IRS listing will benefit a participant; and moreover it's not obvious that listing will benefit a participant to the detriment of CPAs. The court had an answer to all this: "basic economic logic." The court explained:

To begin with, the link between the government-backed credentials offered to unenrolled preparers and the reputational benefit they will enjoy is hardly speculative. Indeed, the reputational benefit is the very point of the IRS Program. . . . Moreover . . . the IRS Program at issue here is both voluntary and clearly intended to offer competitive benefits to those unenrolled preparers who participate in the Program. "Basic economic logic" suggests that unenrolld preparers will choose to participate only if they believe the resulting reputational benefit will produce a substantial enough competitive advantage to outweigh their compliance costs.

The court declined to consider the IRS argument that the association's complaint wasn't within the "zone of interests protected or regulated by the statutory provision" it invokes, because the IRS didn't raise it at the district court.

October 30, 2015 in Cases and Case Materials, Courts and Judging, Jurisdiction of Federal Courts, News, Standing | Permalink | Comments (0)

Wednesday, October 28, 2015

Pacific Legal Foundation Asks Supremes to Review Origination Clause Challenge to Obamacare

The Pacific Legal Foundation filed a  cert. petition yesterday, asking the Supreme Court to review a D.C. Circuit ruling that the individual mandate in Obamacare didn't violate the Origination Clause. We posted on the D.C. Circuit ruling here.

The Origination Clause, Article I, Section 7, Cl. 1, says that "All Bills for raising Revenue shall originate in the House of Representatives; but the Senate may propose or concur with Amendments as on other Bills." Because the Court upheld the individual mandate under Congress's taxing power, the logic goes, the ACA was a "bill for raising revenue." And while a bill that ultimately became Obamacare originated in the House, the Senate gutted that bill and replaced it with the ACA. The Pacific Legal Foundation argues that this violated the Origination Clause.

The D.C. Circuit flatly rejected the argument. It said, in short, that the individual mandate wasn't a "bill for raising revenue" for Origination Clause purposes, even if Congress enacted it under its taxing authority.

Here are the QPs in the cert. petition:

1.    Is the tax on going without health insurance a "Bill[] for raising Revenue" to which the Origination Clause applies?

2.    Was the Senate's gut-and-replace procedure a constitutionally valid "amend[ment]" pursuant to the Origination Clause?


October 28, 2015 in Cases and Case Materials, Congressional Authority, News, Taxing Clause | Permalink | Comments (0)

Tuesday, October 27, 2015

Court Rejects Government Tactics to Delay Release of G-Mo Force-Feeding Videos

Judge Gladys Kessler (D.D.C.) denied the government's motion to reconsider her earlier ruling ordering the government to release videos of force-feedings at Guantanamo Bay.

The ruling is a victory for those seeking release. It keeps Judge Kessler's original ruling ordering the release on track, although we might expect more government foot-dragging.

This most recent ruling in the case comes after the D.C. Circuit remanded so that the district court could consider supplemental government declarations in support of its earlier motion to stay. Consider them she did, and concluded that they said, well, nothing--or at least nothing game-changing. (That's at best. At worst, they were "flat out unbelievable," as in one government declaration that said that if the videos are released, force-fed Detainee Dhiab's privacy would be invaded. So after all this, that's what the government is concerned about--Dhiab's privacy.)

As to the public's right to gain access to the images, Judge Kessler noted that the D.C. Circuit has "neither recognized nor rejected that the First Amendment affords the public a right of access to civil proceedings," and that the government "interprets the D.C. Circuit's silence as a denial of that right." But she went on to note that five other circuits have concluded that there is such a right, and that "Judge Hogan concluded, and this Court agrees, that there has been a long history in our country of public access to civil proceedings."


October 27, 2015 in Cases and Case Materials, News | Permalink | Comments (0)

Monday, October 26, 2015

D.C. Circuit Denies Bivens Remedy for Overseas Violations in Criminal Terrorism Investigation

The D.C. Circuit on Friday ruled in a fractured opinion that a U.S. citizen secretly detained, transferred involuntarily between countries, and threatened with torture by FBI agents did not have a claim for violation of the Fourth Amendment in federal courts. That's because "special factors" counseled against such a remedy under Bivens v. Six Unknown Agents.

The ruling means that Plaintiff Meshal's case is dismissed, and leaves him without a remedy. It also makes it yet even more difficult for plaintiffs like Meshal to get their cases heard in federal court. 

The FBI originally detained and held Meshal because of his alleged connections to al Qaeda; it later released him without charges.

The court wrote that Meshal's claim involved a "new context" for Bivens--a strike against him right out of the gate:

Not only does Meshal's claim involve new circumstances--a criminal terrorism investigation conducted abroad--it also involves different legal components--the extraterritorial application of constitutional protections. Such a different context requires us to think anew. To our knowledge, no court has previously extended Bivens to cases involving either the extraterritorial application of constitutional protections or in the national security domain, let alone a case implicating both--another signal that this context is a novel one.

Because the case arose in a "new context," the court looked to special factors counseling against a Bivens remedy. And it found two, which, taken together, left Meshal without a Bivens cause of action: (1) the case involves "the military, national security, or intelligence," and (2) the conduct occurred outside the borders of the United States. The court also said that a host of "practical factors" counseled against a Bivens remedy, including requiring the court to second guest executive officials operating in foreign justice systems, unknown diplomatic consequences of the suit, and forcing the courts to answer hard questions about the extraterritorial application of the Constitution outside of peacetime.

Judge Kavanaugh wrote separately to especially emphasize the military, counter-terrorism, and foreign context of the suit--the "new context" that triggered the special factors analysis and weighted so heavily against a Bivens claim.

Judge Pillard wrote a lengthy and scathing dissent, dissecting the court's analysis point-by-point. Judge Pillard was particularly concerned about the blind judicial deference to the government's mere invocation, without reasonable explanation, of foreign policy and national security as special factors counseling against a Bivens remedy. She summed up the strange and deeply disturbing result:

Had Meshal suffered these injuries in the United States, there is no dispute that he could have sought redress under Bivens. If Meshal's tormentors had been foreign officials, he could have sought a remedy under the Torture Victim Protection Act. Yet the majority holds that because of unspecified national security and foreign policy concerns, a United States citizen who was arbitrarily detained, tortured, and threatened with disappearance by United States law enforcement agents in Africa must be denied any remedy whatsoever.

October 26, 2015 in Cases and Case Materials, Courts and Judging, Fourth Amendment, Jurisdiction of Federal Courts, News, Opinion Analysis, Separation of Powers | Permalink | Comments (0)

Friday, October 23, 2015

President Obama Vetoes Defense Authorization Over Guantanamo Closure Restriction

President Obama this week vetoed H.R. 1735, the National Defense Authorization Act for Fiscal Year 2016, citing a variety of objections, including the NDAA's restriction on the use of funds to close Guantanamo Bay, to transfer detainees out of Guantanamo Bay, and to house them here in the United States.

In prior years, President Obama signed the NDAA, but issued a signing statement saying that the Guantanamo-closure provisions were unconstitutional.

But this year, he used those provisions--Sections 1031 through 1041 in the bill--along with other objectionable features of the bill, as a reason to veto. Here's what he said about restrictions on closing Guantanamo:

I have repeatedly called upon the Congress to work with my Administration to close the detention facility at Guantanamo Bay, Cuba, and explained why it is imperative that we do so. As I have noted, the continued operation of this facility weakens our national security by draining resources, damaging our relations with key allies and partners, and emboldening violent extremists. Yet in addition to failing to remove unwarranted restrictions on the transfer of detainees, this bill seeks to impose more onerous ones. The executive branch must have the flexibility, with regard to those detainees who remain at Guantanamo, to determine when and where to prosecute them, based on the facts and circumstances of each case and our national security interests, and when and where to transfer them consistent with our national security and our humane treatment policy. Rather than taking steps to bring this chapter of our history to a close, as I have repeatedly called upon the Congress to do, this bill aims to extend it.

At the same time, he said that he supported a provision imposing statutory restrictions on interrogation techniques and limiting techniques to those in the Army Field Manual.

October 23, 2015 in Executive Authority, News, Separation of Powers, War Powers | Permalink | Comments (0)

Tuesday, October 13, 2015

No Standing in Case for Constitutional Convention

Judge James E. Boasberg (D.D.C.) ruled today that an individual plaintiff lacked standing to sue House Speaker John Boehner and Senate Majority Leader Mitch McConnell to force them to call a constitutional convention. But the ruling doesn't end the matter: the case now goes back to D.C. Superior Court under the federal statute that allowed the defendants to remove to federal court in the first place.

Repeat plaintiff Montgomery Blair Sibley, described by the court as "a United States citizen with a propensity for filing unmeritorious lawsuits," sued Boehner and McConnell, arguing that thirty-five states have voiced their support for a constitutional convention, "some as far back as 1901 (Minnesota), some as recently as 1979 (Mississippi)." But Sibley argued that the congressional leaders failed to call a convention, as required by Article V. ("The Congress . . . on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments . . . .")

While Sibley filed first in D.C. Superior Court, Boehner and McConnell removed the case to federal court under a federal statutes that allows removal of suits in state court against any officer of either House of Congress. They then moved to dismiss, arguing that Sibley lacked standing, that they're protected by the Speech and Debate Clause, and that the case raises a non-justiciable political question.

Judge Boasberg ruled only on standing, and said that Sibley lacked it. (The ruling was even easier than it looks, as it turned out, because Sibley conceded the point early in the lawsuit.)

But Judge Boasberg also remanded the case to D.C. Superior Court, because the statues that allowed removal also required remand, and because Judge Boasberg held that there was no futility exception.

Still, the D.C. court is almost certain to dismiss the case, if only because D.C. law on standing follows the federal courts.

October 13, 2015 in Courts and Judging, Jurisdiction of Federal Courts, News, Standing | Permalink | Comments (0)

Monday, October 12, 2015

Campaign Finance and Enforcement

The NYT reported yesterday that just 158 elite families and the companies they control have provided nearly half the money in the early part of the 2016 presidential election.

The are overwhelmingly white, rich, older and male, in a nation that is being remade by the young, by women, and by black and brown voters. Across a sprawling country, they reside in an archipelago of wealth, exclusive neighborhoods dotting a handful of cities and towns. And in an economy that has minted billionaires in a dizzying array of industries, most made their fortunes in just two: finance and energy. . . .

Not since before Watergate have so few people and businesses provided so much money early in a campaign, most of it through channels legalized by the Supreme Court's Citizens United decision five years ago.

At the same time, Ciara Torres-Spelliscy writes at the Brennan Center that DOJ is stepping up to enforce campaign finance crimes:

The Federal Election Commission is still living up to its unfortunate nickname as the Little Agency That Wouldn't. This means that in the pricey and already in full swing 2016 presidential election, the FEC is likely to be sitting on its hands instead of enforcing the law. But would be scofflaws do have something to worry about: the Justice Department is on the beat.

October 12, 2015 in Campaign Finance, First Amendment, News | Permalink | Comments (0)

Columbus Day - - - Or Indigenous Peoples Day?

The 2015 Presidential Proclamation for Columbus Day includes an acknowledgement that the celebration of Columbus is controversial among many:

Though these early travels expanded the realm of European exploration, to many they also marked a time that forever changed the world for the indigenous peoples of North America. Previously unseen disease, devastation, and violence were introduced to their lives -- and as we pay tribute to the ways in which Columbus pursued ambitious goals -- we also recognize the suffering inflicted upon Native Americans and we recommit to strengthening tribal sovereignty and maintaining our strong ties.

As the Washington Post reports, many cities are replacing Columbus Day with Indigenous Peoples Day, including Seattle. The state of South Dakota legislated the day as "Native American Day" in 1990 - - - although no other state seems to have followed suit.  The day remains a federal holiday.

A lively commentary by James Nevius over at The Guardian calls Christopher Columbus a "lost sadist," but also interestingly argues that the holiday's "sentiments are superfluous," given the United States' development.  In a more scholarly vein, Kevin Bruyneel has argued that the holiday serves as a consolidation of white settler identity; his article, The Trouble with Amnesia: Collective Memory and Colonial Injustice in the United States, takes calendar holidays as its theme and is worth a read over at ssrn.

Gräff Matthias, Christoph Kolumbus landet auf San Salvador, via

October 12, 2015 in Current Affairs, History, News | Permalink | Comments (0)

Wednesday, October 7, 2015

How to Write a Constitution to Prevent Violence

Nic Cheeseman and Alexander Noyes give tips in the Washington Post on writing a constitution to prevent violence and promote peace in Africa. (An upcoming Tanzanian vote provides the backdrop.)

Cheeseman (Oxford) is the author of Democracy in Africa: Successes, Failures, and the Struggle for Political Reform.

Their lessons, largely drawn from Cheeseman's book:

-Constitutional design is important, but very different kinds of constitutions can work.

-Political inclusion can bring great benefits, to a point.

-Power-sharing carries large risks, if not done right.

-But failing to share power also comes with risks.

-There's no one-size-fits-all model for every country.

October 7, 2015 in Comparative Constitutionalism, News | Permalink | Comments (1)

Tuesday, October 6, 2015

Judge Allows Challenge to D.C. School Funding to Move Forward

Judge Tanya Chutkan (D.D.C.) last week denied the District of Columbia's motion to dismiss key parts of a claim by D.C. charter schools that the D.C. government under-funded them in comparison to District public schools. The lengthy ruling is laden with analysis on the constitutional relationship between Congress and the District, much of it indeterminate, reminding us just how complicated this relationship can be.

The plaintiff charter schools brought the case, arguing that the D.C. government funneled extra money to D.C. public schools, but not charter schools, in violation of the District Clause and Home Rule Act, the Supremacy Clause, and the School Reform Act. In particular, the plaintiffs argued that the D.C. government violated the Home Rule Act by altering a a congressional act (the School Reform Act) without specific congressional authorization. The District countered that it has authority under the Home Rule Act to amend or repeal the School Reform Act, because the School Reform Act applies only to the District.

Judge Chutkan ruled that neither the case law nor the Home Rule Act tells when Congress acts in tandem with the D.C. City Council (so that the Council could alter a congressional act), or when Congress has the final word--at least in the abstract. So she turned to the text and history of the School Reform Act to answer the question here. But Judge Chutkan said that the School Reform Act was similarly indeterminate. She wrote that the Act's apparent mandatory language on equal school funding for charters and public schools wasn't dispositive, because "if the District can (and has) repealed Acts of Congress that used the term 'shall,' then that term alone cannot necessarily delineate Congress' intent with respect to the Council's authority.'" Moreover, Judge Chutkan said that the legislative history of the School Reform Act didn't answer the question. The upshot: "As it stands, the uniform funding formula is on the books, and it is not clear whether it has been violated, whether it has been amended or repealed by Council enactments (through Congressional acquiescence or otherwise), or whether the challenged actions do not implicate or conflict with the funding formula at all." She thus denied the District's motion to dismiss the District Clause, Home Rule Act, and School Reform Act claims. The ruling means that these claims can move forward.

In contrast, Judge Chutkan did dismiss the plaintiffs' Supremacy Clause claim. That's because the Supremacy Clause doesn't apply to congressional acts over D.C.; the District Clause does. The analysis is the same, Judge Chutkan wrote, but the Supremacy Clause doesn't do the work.

October 6, 2015 in Cases and Case Materials, Congressional Authority, Federalism, News, Opinion Analysis, Supremacy Clause | Permalink | Comments (0)

Monday, October 5, 2015

The Civil Rights Issue of Our Time: The Supreme Court

ConLawProf Rick Hasen (UC Irvine, Election Law Blog) wrote in a wide-ranging piece last week at TPM that the composition of the Supreme Court itself is "the most important civil rights cause of our time."

And according to Hasen, it's one that progressives don't pay enough attention to.

Consider what's at stake in the next presidency:

Justice Ruth Bader Ginsburg will be nearly 84, Justices Antonin Scalia and Anthony Kennedy will be over 80, and Justice Stephen Breyer will be 78. Although many Justices have served on the Court into their 80s and beyond, the chances for all these Justices remaining through the next 4 or 8 years of the 45th President are slim. Indeed, the next president will likely make multiple appointments to the Court.

And it matters:

Had a President Kerry or President Gore appointed more liberal Justices instead of Chief Justice Roberts and Justice Alito, the Supreme Court probably would not have struck down Washington, D.C.'s gun control law in the Heller case; it would not have approved the constitutionality of the federal partial-birth abortion ban in Gonzales v. Carhart; it would not have struck down Seattle school district's affirmative action plan in Parents Involved; and it would not have struck corporate campaign finance limits in Citizens United or a key portion of the Voting Rights Act in Shelby County.

October 5, 2015 in News | Permalink | Comments (0)

Tuesday, September 29, 2015

SEC Target Can't Jump the Gun (to Federal Court)

The D.C. Circuit ruled in Jarkesy v. SEC that the target of an SEC administrative proceeding has to run the administrative course before he can challenge the proceeding in federal court for violating his constitutional rights.

The ruling aligns with a recent Seventh Circuit decision, but is at odds with some of the district courts that have ruled on the question.

The SEC brought an administrative proceeding against George Jarkesy, charging him with securities fraud. Before the SEC ruled on the case, but after Jarkesy's co-respondents settled (in a way that didn't look good for Jarkesy), Jarkesy sued in federal court to stop the proceeding, arguing that it violated various constitutional rights.

The district court dismissed Jarkesy's case, and the D.C. Circuit affirmed.

The court applied the two-part framework in Thunder Basin Coal Co. v. Reich and held (1) that congressional intent to require a litigant to proceed exclusively through the SEC's statutory scheme of administrative and judicial review was "fairly discernible in the statutory scheme" itself and (2) that Jarkesy's claims were "of the type Congress intended to be reviewed within [the SEC's] statutory structure."

The court rejected an argument that Jarkesy's case was like the plaintiffs' challenge in Free Enterprise Fund v. PCAOB. In that case, the Supreme Court sustained district-court jurisdiction over the plaintiffs' facial constitutional challenge to Sarbanes-Oxley. The court also rejected an approach that would distinguish between different types of constitutional challenges (allowing some on collateral attack, but not allowing others). The court explained:

We do not read the Free Enterprise Court's characterization of the plaintiffs' claims in that case, however, to define a new category of collateral claims that fall outside an otherwise exclusive administrative scheme. In its subsequent decision in Elgin [v. Department of the Treasury], the Court considered and rejected the idea that one could divine an exception to an otherwise exclusive administrative scheme based on the distinction between various types of constitutional challenges. "[A] jurisdictional rule based on the nature of an employee's constitutional claim would deprive the aggrieved employee, the MSPB, and the district court of clear guidance about the proper forum for the employee's claims at the outset of the case," the Court wrote, dismissing the plaintiffs' proposed line between constitutional challenges to statutes and other types of constitutional arguments to be "hazy at best and incoherent at worst." The Elgin Court also rejected the dissent's proffered rule making an exception to the CSRA scheme specifically for facial attacks on statutes. The Court explained that "the distinction between facial and as-applied challenges is not so well defined that it has some automatic effect or that it must always control the pleadings and disposition in every case involving a constitutional challenge."

September 29, 2015 in Congressional Authority, Courts and Judging, Jurisdiction of Federal Courts, News, Opinion Analysis | Permalink | Comments (0)

Monday, September 28, 2015

D.C. Circuit to Rehear Judgment Vacating Military Commission Conviction

The D.C. Circuit announced that it would rehear en banc a panel's earlier judgment vacating the military commission conviction of Ali Hamza Ahmad Suliman al Bahlul, an alien enemy combatant who one time bragged about his role in the 9/11 attacked.

A panel this past June vacated al Bahlul's conviction for inchoate conspiracy. The panel said that the conviction violated Article III because it was based on "the purely domestic crime" of inchoate conspiracy, which is not an offense under the international law of war.

The panel's summer ruling was a victory for al Bahlul and a blow to the government in conducting military commission trials. But the court's latest ruling gives it a second bite at this apple. The ruling vacates the panel's summer judgment and sets oral argument before the entire court for December 1, 2015.

September 28, 2015 in Cases and Case Materials, Congressional Authority, Courts and Judging, Executive Authority, News, Opinion Analysis, Separation of Powers, War Powers | Permalink | Comments (0)