Thursday, September 20, 2018
The Ninth Circuit ruled in Fikre v. FBI that the plaintiff's due process challenges to his inclusion on the government's no-fly list were not moot, even though the government took him off the list during the litigation. The ruling means that the plaintiff's case challenging his inclusion on the no-fly list can move forward.
The case arose from Yonas Fikre's inclusion on the no-fly list and his several and significant resulting harms. Fikre alleged that his inclusion violated substantive and procedural due process, and he sought declaratory and injunctive relief. During the litigation, the government removed Fikre from the list, however, and moved to dismiss the case as moot. The district court granted the motion.
The Ninth Circuit reversed. The court ruled that Fikre's case came under the voluntary cessation exception to mootness--that signs pointed to the government opportunistically removing him, and that the government could reinstate him at any time. The court explained:
To begin, the FBI's decision to restore Fikre's flying privileges is an individualized determination untethered to any explanation or change in policy, much less an abiding change in policy. . . .
Moreover, the government has no assured Fikre that he will not be banned from flying for the same reasons that prompted the government to add him to the list in the first place, nor has it verified the implementation of procedural safeguards conditioning its ability to revise Fikre's status on the receipt of new information. . . .
Finally . . . we note that Fikre's removal from the No Fly List does not "completely and irrevocably eradicate the effects of the alleged violation[s]."
The ruling sends the case back to the district court for further proceedings.
Wednesday, September 19, 2018
The Supreme Court yesterday declined to stay a lower court ruling that struck an FEC reg that created a disclosure loophole for 501(c)(4) organizations.
The reg allowed 501(c)(4)s and cooperating super-PACs to avoid statutory disclosure requirements. The district court ruled that the reg was at odds with statutory disclosure requirements.
Chief Justice Roberts last week issued an order (without opinion) staying the district court ruling, but yesterday the full Court vacated the Chief's order and denied the stay (also without an opinion).
Under the (now not stayed) district court ruling, the FEC has 45 days to come up with new regs that comply with the statute.
Wednesday, September 12, 2018
The UNLV William S. Boyd School of Law is calling for presenters and commenters for this exciting symposium, Dignity, Tradition, & Constitutional Due Process: Competing Judicial Paradigms, March 14-15, 2019, in Las Vegas.
The Court's determination regarding which paradigm to apply [a "deeply rooted" historical paradigm, or a "dignity" paradigm] depends, of course, on which receives at least five affirmative votes in any given appeal. Until his recent retirement, Justice Anthony Kennedy usually was the deciding vote. The probable confirmation of Hon. Brett Kavanaugh to Kennedy's seat may portend severely limited use of the dignity paradigm, if not its effective demise.
Our symposium . . . explores which of these two seemingly irreconcilable standards is correct, or whether there are one or more alternative approaches the courts should use.
Monday, September 10, 2018
Check out Adam Serwer's piece in The Atlantic, The Supreme Court is Headed Back to the 19th Century. Here's a taste:
The conservative majority on the Supreme Court today is similarly blinded [like the Court in the late 19th century] by a commitment to liberty in theory that ignores the reality of how Americans' lives are actually lived. Like the Supreme Court of that era, the conservatives on the Court today are opposed to discrimination in principle, and indifferent to it in practice. Chief Justice John Roberts's June 2018 ruling to uphold President Donald Trump's travel ban targeting a list of majority-Muslim countries, despite the voluminous evidence that it had been conceived in animus, showed that the muddled doctrines of the post-Reconstruction period retain a stubborn appeal.
Saturday, September 1, 2018
Check out Michael Kruse's The Weekend at Yale That Changed American Politics on the founding of the Federalist Society, at Politico.
Tuesday, August 28, 2018
The American Constitution Society is pleased to announce a call for papers for a workshop on public law to be held the afternoon of Thursday, January 3, 2019, at the 2019 AALS Annual Meeting in New Orleans. A committee composed to ACS's Board of Academic Advisors will select approximately 10 papers, and each selected author will have the opportunity to discuss his/her paper, as well as the paper of another author, in depth with two experienced scholars from the ACS network, which includes Erwin Chemerinsky, Pamela Karlan, Bill Marshall, Reva Siegel, Mark Tushnet, and Adam Winkler.
Papers can be on any field related to public law, including but not limited to: constitutional law, administrative law, antidiscrimination law, criminal law, environmental law, family law, federal courts, financial regulation, public international law, society welfare law, and workplace law.
The deadline for submissions is 11:50 p.m. on October 19, 2018. Submissions should be works that will not be published as of January 1, 2019.
Submissions should be emailed in Microsoft Word or PDF format to email@example.com. Please indicate in the subject line "Submission for ACS Junior Scholars Public Law Workshop" and include the author's name, school, and contact information in a cover email. The cover email should also identify the field(s) in which the paper falls.
Tenure-track and tenured faculty, or faculty with similar status, who have been full-time law teachers for 10 years or less as of December 31, 2018, are eligible to participate. Co-authored submissions are permissible, but each of the coauthors must be individually eligible to participate in the workshop.
Authors are limited to one submission each. Selections will be made by November 16, 2018. Authors must arrange their own travel to the AALS Annual Meeting.
Inquiries may be sent to Kara Stein, at firstname.lastname@example.org.
Sunday, August 26, 2018
Judge Ketanji Brown Jackson (D.D.C.) ruled yesterday in American Federation of Government Employees v. Trump that President Trump's executive orders sharply curtailing federal employees' collective bargaining and labor rights violate federal labor law. The ruling means that most of the EOs' limitations are invalid.
Together, the EOs set a timeframe for completion of collective bargaining negotiations; removed certain matters from the bargaining table completely; set certain procedures for negotiations; limited the extent to which federal employees could engage in union work during business hours; limited the government resources that union members could use for union activities; made it easier for the government to dismiss federal employees for unsatisfactory performance.
The court recognized that the EOs are subject to restrictions in statutory law, but that "the President could always theoretically claim that he possesses the inherent constitutional authority to take a given action, regardless of any conflict with a congressional statute and his resulting lack of statutory authority." "But Defendants have made no such assertion in the instant case; instead, they have 'expressly recognized statutory limitations on the President's authority to act in this area.'" The court, therefore, didn't rule on the constitutional question.
The government's omission of a constitutional argument might seem surprising, given the President's recent constitutional extrapolation from the Court's ruling in Lucia in an EO designed to rein in control over executive branch ALJs. That move seemed like an attack, under cover of Lucia and claimed plenary Article II authority over the executive branch, on civil service laws that in any way restrict the President's claimed authority to hire and fire whomever he wants. That attack would seem to apply equally here. But the government didn't press it.
On the statutory questions, Judge Jackson summarized:
[T]he Order provisions concerning matters such as the reduction of the availability of and support for official time activities [to engage in union-related work], and the specific prohibitions against bargaining over [certain matters], or hte unilateral narrowing of any negotiated grievance procedures, dramatically decrease the scope of the right to bargain collectively, because, in the [Federal Service Labor-Management Relations Act], Congress clearly intended for agencies and unions to engage in a broad and meaningful negotiation over nearly every "condition of employment." Likewise, the Orders' requirements, such as the directive that agencies should "ordinarily" seek to conclude collective bargaining negotiations within five to seven months, or should limit the applicability of grievance procedures "[w]henever reasonable[,]" effectively instruct federal agencies and executive departments to approach collective bargaining in a manner that clearly runs counter to the FSLMRS's expectation of good-faith conduct on the part of negotiating parties. . . .
[T]he only challenged provisions of [the EOs] that can stand are those that neither contribute to a reduction in the scope of the collective bargaining that Congress has envisioned nor impede the ability of agencies and executive departments to engage in the kind of good-faith bargaining over conditions of federal employment that Congress has required.
Saturday, August 25, 2018
Check out Jason Zengerle's feature in the NYT Magazine, How the Trump Administration is Remaking the Courts. Zengerle examines how President Trump, with the help (or "ruthless discipline") of Senate Republicans, is shaping the courts. And how he's doing this at a blistering pace. And how this compares to the gummed-up Senate in the Obama Administration.
Check out Emily Bazelon's piece in the NYT Magazine, When the Supreme Court Lurches Right: What happens when the Supreme Court becomes significantly more conservative than the public?
Bazelon traces the history of politics and the Court, and writes,
Maybe a mobilized Democratic Party can somehow overcome all the barriers of Republican entrenchment as it did in the 1930s . . . . If a new dominant national alliance emerges to the left of the Roberts Court, maybe the justices will find a way to become a part of it. Or the Republicans could remain in power because they make a persuasive case to the voters, not because the court aids in eroding the democratic process. In other words, maybe Dahl turns out to be right. Let's hope so. The democracy may be riding on it.
Friday, August 24, 2018
The Ninth Circuit last week authorized a constitutional tort under Bivens against an ICE official for forging a document that would have led to the plaintiff's deportation. (H/t Theo Lesczynski.) The ruling means that the plaintiff's case can move forward.
The ruling is the second time in recent weeks that the Ninth Circuit authorized a Bivens action in a "new context." (The earlier case involved a Border Patrol officer's cross-border shooting of a Mexican youth.)
The case, Lanuza v. Love, arose when ICE Assistant Chief Counsel Jonathan Love submitted an I-826 form, forged with Lanuza's signature, at Lanuza's immigration hearing. The form indicated that Lanuza accepted voluntary departure to Mexico in 2000, breaking Lanuza's period of accrued continuous residency in the U.S. Without this continuous residency, Lanuza didn't qualify for cancellation of removal; and, based on the forged document, the immigration judge denied cancellation and ordered Lanuza removed. The Board of Immigration Appeals affirmed.
Lanuza then hired a new attorney, who discovered the forgery. (Among other things, the forged document referred to the "U.S. Department of Homeland Security," which did not yet exist at the time that Lanuza purportedly signed the form.) The agency then adjusted Lanuza's status to lawful permanent resident.
Lanuza brought a Bivens claim against Love for violation of his Fifth Amendment rights. The district court dismissed the case, but the Ninth Circuit reversed.
The court ruled that the case raised a "new context," but that no special factors counseled against a Bivens remedy. Indeed, the court said that certain factors favored a Bivens remedy in a case like this, where a government official submitted false evidence in a quasi-judicial proceeding:
Indeed, there are few persons better equipped to weigh the cost of compromised adjudicative proceedings than those who are entrusted with protecting their integrity. And, more often than not, the Judicial Branch, not Congress or the Executive, is responsible for remedying circumstances where a court's integrity is compromised by the submission of false evidence. Thus, it falls within the natural ambit of the judiciary's authority to decide whether to provide a remedy for the submission of false evidence in an immigration proceeding.
The court also denied qualified immunity.
The ruling sends the case back to the district court for proceedings on the merits.
Thursday, August 23, 2018
The letters take on a new significance this week, as events draw even more attention to Judge Kavanaugh's views--and how those views might translate if any issue arising out of the Mueller investigation were to reach the Court.
In one letter, former OLCers write on Judge Kavanaugh's critical remarks on United States v. Nixon; in the other, they write on the proliferation of presidential signing statements when Judge Kavanaugh served as staff secretary to President Bush.
From the first (which also captures the gist of the second):
[W]e are troubled by Judge Brett Kavanaugh's apparent commitment to a version of the unitary executive theory of presidential power that holds that the President has total control of actions and decisions of any executive branch official, and that in many cases this control cannot be reviewed by a court of law nor regulated by Acts of Congress.
Wednesday, August 22, 2018
Check out Justin Driver's (U. Chicago) expansive, meticulous, and engrossing new book, The Schoolhouse Gate: Public Education, the Supreme Court, and the Battle for the American Mind. The title speaks for itself, but here's from the intro:
At its core, this book argues that the public school has served as the single most significant site of constitutional interpretation within the nation's history. No other arena of constitutional decisionmaking--not churches, not hotels, not hospitals, not restaurants, not police stations, not military bases, not automobiles, not even homes--comes close to matching the cultural import of the Supreme Court's jurisprudence governing public schools.
That's because of "the importance of that venue for shaping attitudes toward the nation's governing document." Still, "[i]n recent decades . . . such sentiments appear more often in the Court's dissenting opinions than in its majority opinions."
Driver tells us what to do about that.
The Fifth Circuit last week rejected a challenge by faculty to a Texas law that allows concealed carry in public university classrooms. The ruling ends the challenge, and upholds the state Campus Carry Act and University of Texas at Austin policies permitting concealed carry.
The case, Glass v. Paxton, arose when faculty at the University of Texas challenge the Campus Carry Act and UT policies that permitted concealed carry for certain students on campus. Faculty challenged the Act under the First Amendment, Second Amendment, and Equal Protection Clause. The court rejected each of those challenges.
As to the First Amendment, the court held that the plaintiff lacked standing because she couldn't show, under the "certainly impending" standard of Amnesty International, "that a license-holder will illegally brandish a firearm in a classroom."
As to the Second Amendment, the court rejected the plaintiff's argument that the concealed carry on campus wasn't "well regulated." The court said that the "well regulated" requirement is part of the Second Amendment's prefatory clause, and that the Court in Heller ruled "that the Second Amendment's prefatory clause does not limit its operative clause."
Finally, as to equal protection, the court said that Texas's interests in the law--public safety and self-defense--were sufficient to pass rational basis review. "Here, Texas's rationales are arguable at the very least."
Saturday, August 18, 2018
The D.C. Circuit ruled in American Freedom Defense Initiative v. WMATA that the D.C. Metro's restriction on certain advertisements was a view-point neutral regulation in a nonpublic forum. But the court nevertheless remanded the case for a determination whether the restriction was "reasonable."
The ruling sends the case back to the district court for further proceedings. "Reasonableness" is usually a very low bar (thus favoring Metro), but the Court just this Term determined that a view-point neutral regulation in a nonpublic forum wasn't "reasonable." That case, Minnesota Voters Alliance v. Mansky, leaves the door cracked for AFDI on remand.
The ruling follows the recent Archdiocese of Washington v. WMATA, where the same court ruled that Metro's restriction on religious advertising was a permissible view-point neutral regulation in a nonpublic forum.
The AFDI case arose when AFDI sought to place an ad on Metro that, according to AFDI, was designed to "make the point that the First Amendment will not yield to Sharia-adherent Islamists who want to enforce so-called blasphemy laws here in the United States, whether through threats of violence or through the actions of complicit government officials." Around the same time, Metro was considering restricting ads, given the increasing number of complaints about ads disrespecting President Obama and ads on hot-button issues. A Metro employee told the Board that AFDI's proposed ad was the "straw that broke the camel's back," and the Board approved a temporary moratorium. The Board then rejected AFDI's ad under the moratorium, and later issued permanent restrictions on certain ads. The permanent policy, now in place, prohibits ads on "an issue on which there are varying opinions," politics (pro or con any candidate), religion (again, pro or con), and "industry position[s] or industry goal[s] without direct commercial benefit to the advertiser" (again, pro or con).
AFDI sued, arguing that the moratorium (but not the permanent policy) violated the First Amendment.
The court ruled first that the case was not moot. The court said that the permanent policy represented the same restrictions under the moratorium, and so AFDI's claim against the moratorium was still a live dispute, but now against the permanent policy. (Judge Karen LaCraft Henderson dissented on this point and thus would have dodged the merits.)
The court next said that Metro was a nonpublic forum (under Archdiocese of Washington), and that the restrictions were view-point neutral. The court rejected AFDI's arguments that the policy was view-point discriminatory because (1) Metro adopted the policy in response to AFDI (no evidence of this, and the straw-that-broke-the-camel's-back comment only meant that AFDI's ad, along with a whole bunch of other ads, led to the policy), (2) the policy was facially view-point based (not so under Lehman v. City of Shaker Heights), and (3) the religion restriction is inherently view-point based (AFDI didn't sufficiently develop or press this argument).
But while a view-point neutral regulation in a nonpublic forum usually satisfies the First Amendment, it also has to be reasonable. The court said that there was enough of a question here to remand the case for a determination of reasonableness under this Term's Minnesota Voters Alliance v. Mansky (holding that a restriction on political attire in a poling place wasn't reasonable).
The National Archives and Records Administration this week issued a backgrounder and update on the dispute over Judge Kavanaugh's records, with links to congressional requests and NARA responses. The statement comes at a time when Senate Democrats accuse Republicans of failing to seek and release most of Judge Kavanaugh's records, including, critically, documents related to his time as staff secretary to President Bush (which might shed light on his involvement, if any, in controversial Bush Administration policies).
In the usual course of things, the Chair of relevant congressional committees would request--and receive--all relevant docs from NARA on a nominee under the Presidential Records Act. That's what happened during other, most recent confirmation proceedings, including Justices Sotomayor's, Kagan's, and Gorsuch's. But not here.
NARA explained that it holds "several million pages of paper and email records related to Judge Kavanaugh." Still, Senator Grassley requested only about 900,000 of these (not related to Judge Kavanaugh's time as staff secretary). NARA says that expects to review and release about 300,000 pages by August 20, but can't release the remaining 600,000 pages until later, "by the end of October."
The Senate scheduled Judge Kavanaugh's hearings to begin on September 4.
At the same time, NARA explains that it can't respond to Democrats' requests for Judge Kavanaugh's records (including records relating to Judge Kavanaugh's time as staff secretary), because under the Presidential Records Act "consistent practice has been to respond only to requests from the Chair of Congressional Committees, regardless of which party is in power." Senate Democrats took the extraordinary step of filing a FOIA request, and Senator Schumer this week threatened to sue NARA to get the docs not requested by Senator Grassley, and to get them more quickly.
Finally, NARA explained that "a separate review . . . is also underway." In particular, a Bush Administration representative (William Burck) "requested and received from [NARA] a copy of the White House Counsel's Office and nomination records and has begun to provide copies of those records directly to the Senate Judiciary Committee." Burck is conducting his own review outside of the ordinary NARA process. NARA explained that this
is something that has never happened before. This effort by former President Bush does not represent the National Archives of the George W. Bush Presidential Library. The Senate Judiciary Committee is publicly releasing some of these documents on its website, which also do not represent the National Archives.
Thursday, August 16, 2018
Wednesday, August 15, 2018
Eighth Circuit Upholds Public Union Exclusive Representation Designation Against First Amendment Challenge
The Eighth Circuit this week held that a Minnesota law that authorizes public employees to organize and to designate an exclusive representative to negotiate employment terms with the state did not violate the First Amendment.
The case, Bierman v. Dayton, may represent a next front, after Janus, in First Amendment challenges to public-sector unions. The Eighth Circuit quoted the time-bomb in Janus (see below) that could well foretell the end of exclusive representation, even without a fair-share requirement.
The case tested Minnesota's Public Employee Labor Relations Act, as applied to in-home care providers for disabled Medicaid recipients. The Act permits those employees to organize and designate an exclusive bargaining representative, but it doesn't require fair-share fees for non-union members. Still, dissenting home-health-care workers challenged the Act, arguing that it compelled them to associate with a union that they want no part of. (Again: They were not charged an agency fee or fair-share fee. Their claim was that the state, merely by allowing their union colleagues to designate an exclusive bargaining representative, violated their First Amendment rights.)
The court flatly rejected this claim, pointing to Minnesota State Board for Community Colleges v. Knight, which, the court said, squarely answered the question.
As to Janus's impact on this kind of case, the court wrote,
Recent holdings in [Janus] and [Harris] do not supersede Knight. Under those decisions, a State cannot compel public employees and homecare providers, respectively, to pay fees to a union of which they are not members, but the providers here do not challenge a mandatory fee. Janus did characterize a State's requirement that a union serve as an exclusive bargaining agent for its employees as "a significant impingement on associational freedoms that would not be tolerated in other contexts," but the decision never mentioned Knight, and the constitutionality of exclusive representation standing alone was not at issue. Of course, where a precedent like Knight has direct application in a case, we should follow it, even if a later decision arguably undermines some of its reasoning.
This isn't the first time West Virginia's courts have been embroiled in constitutional/political disputes. We posted on Caperton here.
Tuesday, August 14, 2018
President Trump late yesterday issued a breathtaking constitutional signing statement on the John S. McCain National Defense Authorization Act for Fiscal Year 2019. The President called out dozens of provisions for impinging on the commander-in-chief authority, the foreign affairs authority, the appointments authority, executive privilege, and the President's authority to recommend legislation.
Perhaps most alarming, the President identified 18 separate sections that require public disclosure or reports to Congress on various topics as categorically "protected by executive privilege."
My Administration will treat these provisions consistent with the President's constitutional authority to withhold information, the disclosure of which could impair national security, foreign relations, law enforcement, or the performance of the President's constitutional duties.
The move pits the President's inherent Article II powers against Congress's powers to appropriate funds, its war powers and powers over the military, its foreign-relations powers, and its oversight authority (to say nothing of any interest or right that the people have in knowing what their government is up to). But unless Congress is willing to push back (for example, by issuing and enforcing subpoenas for reports required by the Act, but over which the President has claimed a categorical "executive privilege"), or unless a person or group has standing to challenge any of the President's rejection of funding restrictions or requirements or appointments matters, these claims will never see the inside of a courtroom.
If not, then the President will have effectively line-item vetoed a whopping 50 or more provisions of a single Act of Congress, with no check.