Tuesday, January 16, 2018
The Justice Department announced today that it intends to petition for immediate Supreme Court review of Judge Alsup's ruling last week that put a temporary halt to the administration's DACA-repeal effort.
From the press release:
"It defies both law and common sense for DACA--an entirely discretionary non-enforcement policy that was implemented unilaterally by the last administration after Congress rejected similar legislative proposals and courts invalidated the similar DAPA policy--to somehow be mandated nationwide by a single district court in San Francisco," said Attorney General Jeff Sessions.
Sunday, January 14, 2018
Check out Katie Benner's piece at the NYT on nationwide injunctions. And here's Prof. Samuel Bray's (UCLA) piece in the Harvard Law Review, arguing for reform, cited in Benner's piece.
Thursday, January 11, 2018
Judge Timothy J. Kelly (D.D.C.) yesterday denied Leandra English's motion for a preliminary injunction against President Trump in the dispute over the acting directorship of the Consumer Financial Protection Bureau.
Recall that outgoing director Richard Cordray appointed English as deputy in late November. Under Dodd-Frank, this meant that English would become acting director upon Cordray's resignation. But at the same time, President Trump appointed OMB Director John Michael Mulvaney as acting director pursuant to his authority under the Federal Vacancies Reform Act. As a result, both English and Mulvaney claimed title to acting director. English sued to get the courts to recognize her as the actual acting director.
Judge Kelly ruled that English was unlikely to succeed on the merits of her claim. According to the court, that's because Dodd-Frank and the FVRA can be read in harmony--in favor of the President's authority to appoint an acting director over Dodd-Frank's provision automatically assigning the post to the deputy:
The best reading of the two statutes is that Dodd-Frank requires that the Deputy Director "shall" serve as acting Director, but that under the FVRA the President "may" override that default rule. This reading is compelled by several considerations: the text of the FVRA, including its exclusivity provision, the text of Dodd-Frank, including its express-statement requirement and Deputy Director provision, and traditional principles of statutory construction.
The court said that constitutional avoidance principles confirmed this result. In particular,
English's interpretation of Dodd-Frank potentially impairs the President's ability to fulfill his obligations under the Take Care Clause. Under English's theory, because Cordray installed her as Deputy Director, she must remain acting Director--no matter whom the President would prefer in that role--until a new permanent Director is appointed. . . .
Under English's interpretation, however, Cordray could have named anyone the CFPB's Deputy Director, and the President would be virtually powerless to replace that person upon ascension to acting Director--no matter how unqualified that person might be. That alone threatens to undermine the President's ability to fulfill his Take Care Clause obligations. And this problem is compounded by another unique feature of the directorship of the CFPB: it is vested with unilateral, unchecked control over the CFPB's substantial regulatory and enforcement power.
The court said that nothing in Dodd-Frank prevented the President from appointing the acting OMB chief to simultaneously serve as CFPB Director.
The ruling is only on English's motion for a preliminary injunction--and doesn't finally settle the directorship dispute--but it foretells the ultimate result in this court.
Wednesday, January 10, 2018
Judge William Alsup (N.D. Cal.) yesterday issued a preliminary injunction requiring the Trump Administration "to maintain the DACA program on a nationwide basis on the same terms and conditions as were in effect before the rescission on September 5, 2017."
The order requires the government to continue to administer DACA, including allowing DACA enrollees to renew their enrollments, despite the Administration's announcement last year that it would halt the program. The order also potentially complicates negotiations over a congressional fix.
The court ruled that the plaintiffs were likely to succeed on the merits of their challenge to President Trump's repeal of the DACA program. In short, the court ruled that DACA was legal when adopted; that the government's stated reason for repealing it (that DHS lacked authority to implement it) was wrong as a matter of law; and that the government's post-hoc rationalization for repeal (the "litigation risk" it faced in defending DACA) didn't count, and, in any event, was arbitrary and capricious.
This order holds that, in light of our own court of appeals' reasoning . . . and in light of the analysis of the Office of Legal Counsel of the United States Department of Justice, and the reasoning set forth above, our court of appeals will likely hold that DACA was and remains a lawful exercise of authority by DHS. Plaintiffs are therefore likely to succeed on the merits of their claim that the rescission was based on a flawed legal premise and must be set aside as "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law."
Along the way, the court distinguished the DAPA program, ruled illegal by the Fifth Circuit and affirmed by an equally divided Supreme Court, and said that the reasons why DAPA exceeded DHS authority don't apply to DACA:
While at least some of the majority's reasons for holding DAPA illegal would apply to DACA, fairness requires saying that DACA and DAPA were different, as the panel opinion stated. An important criticism against DAPA would not apply against DACA, namely the fact that Congress had already established a pathway to lawful presence for alien parents of citizens (so that DAPA simply constituted a more lenient substitute route). DACA, by contrast, has no such analogue in the INA. And, there is a difference between 4.3 million [covered by DAPA] and 689,800 [covered by DACA]. Finally, the criticism that DACA has been mechanically administered without the exercise of discretion in individual cases, if true, could be fixed by simply insisting on exercise of discretion. In sum, the DAPA litigation was not a death knell for DACA.
The ruling will surely be appealed.
Tuesday, January 9, 2018
The Sixth Circuit ruled today that voting rules on a proposed state constitutional amendment providing that the state constitution is not to be construed as protecting the right to abortion did not violate due process and equal protection. The ruling means that the state constitutional amendment can go into effect (although, given the federal right to abortion, it'll have no practical impact).
The case, George v. Hargett, arose when Tennessee voters approved an amendment to the Tennessee Constitution prohibiting construction of the state constitution to secure or protect the right to abortion or to require funding for abortion. Opponents of the measure sued, arguing that the voting rules for state constitutional amendments, found in Article XI, Section 3, of the state constitution, violated due process and equal protection.
Article XI, Section 3, provides:
if the people shall approve and ratify such amendment or amendments by a majority of all the citizens of the State voting for Governor, voting in their favor, such amendment or amendments shall become a part of this Constitution.
The language is vague as to whether a vote must vote in both the gubernatorial election and on the amendment, or whether a voter could vote on the amendment without also voting in the gubernatorial election. (State practice said the latter.) So during the campaign, amendment supporters urged voters to vote for the proposed amendment, but not to vote in the gubernatorial election, in order to gain a numerical advantage. In contrast, amendment opponents urged voters to vote in both the gubernatorial election and on the amendment, in order to gain their own numerical advantage.
Tennessee voters voted in favor of the amendment. And for the first time in the state's history, the number of ballots cast on the amendment question exceeded the number of ballots in the gubernatorial election (reflecting the strength of the political campaign in favor of the amendment). This made the math easy: under Article XI, Section 3, the number of votes in favor of the amendment clearly exceeded half the number of total votes in the gubernatorial election.
Amendment opponents sued, arguing that Article XI, Section 3, under the prevailing interpretation, violated due process and equal protection. (They also argued for a different interpretation of Article XI, Section 3--that only those voters who also voted for governor could vote for the amendment--but the Sixth Circuit deferred to a final state court ruling that voters could vote on an amendment without also voting for governor.)
The Sixth Circuit rejected those claims. The court said that there was no due process violation, because no "voter's right to vote was burdened by government action." In short, the voting rules (set by the state court) allowed everyone to vote on the amendment, and counted all the votes on the amendment. The court said that there was no equal protection violation, because "[e]very vote cast--on the amendment and in the governor's race--was accorded the same weight."
The ruling ends the challenge and means that Tennessee's Constitution now contains a provision that prohibits an interpretation to secure or protect the right to abortion. But again: This'll have no practical effect on the right to abortion in the state, given the federal constitutional right to abortion.
Judge Trevor McFadden (D.D.C.) ruled today that Cause of Action Institute has standing to sue to seek former Secretary of State Colin Powell's work-related e-mails on his personal AOL account. The ruling means that the case can move forward.
Cause of Action Institute first sought the Powell e-mails through a FOIA request. But after the State Department said that the e-mails no longer exist, the organization sued under the Federal Records Act and the Administrative Procedure Act. State and the Archivist moved to dismiss, arguing that Cause's harm (not getting the e-mails) couldn't be redressed by a favorable court ruling, because, after all, the e-mails no longer exist. Without redressibility, there's no standing.
The court disagreed. Judge McFadden ruled, in short, that the government hadn't tried hard enough to obtain the missing e-mails, given its mandatory obligations to recover missing records under the FRA. The court followed the D.C. Circuit's lead in Judicial Watch, Inc. v. Kerry, which held that a similar case seeking former Secretary Clinton's missing e-mails wasn't moot, and noted that further government investigation in that case led to the discovery of many of those e-mails. The same could be true here, the court reasoned, meaning that Cause could show that a court order for the government to investigate further could lead to the discovery of the e-mails--and that it therefore has standing.
Today's ruling--again, backed by the D.C. Circuit's ruling in Judicial Watch--means that Cause's case can move forward and seek a court order for the government to initiate action under the FRA through the Attorney General for recovery of the e-mails.
Monday, January 8, 2018
Check out this WSJ report on the Justice Department's reversals of positions in important cases under President Trump. Among the issues: union agency-fee and the First Amendment; Ohio's removal of nonvoters from the voting rolls; DACA; the constitutionality of the Consumer Financial Protection Bureau; federal subsidies for insurance companies on the exchanges; and prisoner rights.
Thursday, January 4, 2018
Today brings the news that the President is contemplating litigation to halt the publication of Fire and Fury:Inside the Trump White House by Michael Wolff. This followed a reported cease and desist letter to former White House "chief strategist" and insider Steve Bannon for talking with Wolff in alleged violation of a nondisclosure agreement.
The letter to the book's publisher is reportedly based on a claim of defamation:
“Actual malice (reckless disregard for the truth) can be proven by the fact that the Book admits in the Introduction that it contains untrue statements. Moreover, the Book appears to cite to no sources for many of its most damaging statements about Mr. Trump. Also, many of your so-called ‘sources’ have stated publicly that they never spoke to Mr. Wolff and/or never made the statements that are being attributed to them. Other alleged ‘sources’ of statements about Mr. Trump are believed to have no personal knowledge of the facts upon which they are making statements or are known to be unreliable and/or strongly biased against Mr. Trump.”
But behind the obvious relevance of New York Times v. Sullivan (1964) which set the doctrine of actual malice for defamation under the First Amendment, lurks another case involving the New York Times: New York Times v. United States (1971), often called the "Pentagon Papers Case."
It is the Pentagon Papers Case that solidified the disfavor for prior restraint.
The brief per curiam opinion in the 6-3 decision stated that there is "a heavy presumption against its constitutional validity," and the government "thus carries a heavy burden of showing justification for the imposition of such a restraint." While it is certainly the United States government that is a party to the Pentagon Papers Case, most commentators and scholars believe that it was President Nixon who was at the forefront of the attempt to stop publication of the papers. Arguably, the Pentagon Papers involved "state secrets," but President Trump, like Nixon, has been criticized as conflating his own interests with that of the government.
It's thus a good time to reconsider the continuing relevance of the case and its litigation. One perspective is available in the movie The Post involving the Pentagon Papers and starring Meryl Streep as Katharine Graham, the publisher of The Washington Post.
Another good perspective is a recent conversation between James C. Goodale, author of Fighting for the Press: the Inside Story of the Pentagon Papers and Other Battles and Jeremy Scahill, one of the founders of The Intercept and author of Dirty Wars: The World Is a Battlefield, which I moderated at CUNY School of Law.
Here's the video:
January 4, 2018 in Books, Campaign Finance, Conferences, Current Affairs, Executive Authority, First Amendment, News, Separation of Powers, State Secrets, Supreme Court (US) | Permalink | Comments (0)
Sunday, December 31, 2017
In his 2017 Year-End Report on the Federal Judiciary United States Supreme Court Chief Justice concentrated on disaster-preparedness, stating that
we cannot forget our fellow citizens in Texas, Florida, Puerto Rico, and the Virgin Islands who are continuing to recover from Hurricanes Harvey, Irma, and Maria, and those in California who continue to confront historic wildfires and their smoldering consequences. The courts cannot provide food, shelter, or medical aid, but they must stand ready to perform their judicial functions as part of the recovery effort.
As part of the effort to maintain judicial functions, Roberts' noted that the Administrative Office of the United States Courts has established an Emergency Management and Preparedness Branch, including having response teams. He added:
I recognize that this might sound like trying to fight fire with administrative jargon. But imagine yourself one of a handful of employees of the bankruptcy court in Santa Rosa, California, when raging wildfires suddenly approach the courthouse where you work and state officials order evacuation—as happened this past September. The staff members did not face the emergency alone; they had at their disposal a professional response team to assist in making quick decisions to protect personnel, relocate services, and ensure continuity of operations.
He also lauded the oft-forgotten territories in the United States that have been coping with the after-effects of disaster:
The hurricanes brought flooding, power outages, infrastructure damage, and individual hardship to Texas and Florida. But the judicial districts of the Virgin Islands and Puerto Rico were especially hard hit. Judges and court employees responded in dedicated and even heroic fashion. They continued to work even in the face of personal emergencies, demonstrating their commitment to their important public responsibilities.
Roberts' ended the 16 page report with a segue to the "new challenge" of dealing with the "depth of sexual harassment."
Events in recent months have illuminated the depth of the problem of sexual harassment in the workplace, and events in the past few weeks have made clear that the judicial branch is not immune. The judiciary will begin 2018 by undertaking a careful evaluation of whether its standards of conduct and its procedures for investigating and correcting inappropriate behavior are adequate to ensure an exemplary workplace for every judge and every court employee.
I have asked the Director of the Administrative Office to assemble a working group to examine our practices and address these issues. I expect the working group to consider whether changes are needed in our codes of conduct, our guidance to employees—including law clerks—on issues of confidentiality and reporting of instances of misconduct, our educational programs, and our rules for investigating and processing misconduct complaints. These concerns warrant serious attention from all quarters of the judicial branch. I have great confidence in the men and women who comprise our judiciary. I am sure that the overwhelming number have no tolerance for harassment and share the view that victims must have clear and immediate recourse to effective remedies.
Roberts' is undoubtedly responding to the high-profile resignation of Ninth Circuit Judge Alex Kozinski and public letters from former law clerks, professors, and others to address the issue of inappropriate conduct by federal judges.
What might have also been in the report? The need for diversity among Article III judges, especially given the tendency of the recent and current nominations to be white and male.
Wednesday, December 27, 2017
D.C. Circuit Declines to Halt Election Integrity Commission Request for Voter Information for Lack of Standing
The D.C. Circuit ruled that the Electronic Privacy Information Center lacked standing to obtain an injunction halting a request by the Presidential Advisory Commission on Election Integrity for voter information from the states. The district court ruled earlier that EPIC had standing, but was unlikely to succeed on the merits, because the Commission wasn't an "agency" under the Administrative Procedure Act. The D.C. Circuit ruling has the same effect--denial of a preliminary injunction--but for a different reason: EPIC hasn't demonstrated a substantial likelihood of standing.
The ruling is only on EPIC's motion for a preliminary injunction. But EPIC's lack of standing at this preliminary stage may also mean that it (later) lacks standing to bring the claim at all. Based on the D.C. Circuit's ruling, it seems that only voters themselves, or an organization that represents voters, would have standing to bring this kind of claim.
EPIC initially brought the case to challenge the Commission's request for voter information without first conducting, and producing, a privacy impact assessment under the E-Government Act. EPIC argued that it was entitled to the assessment, and that its failure to receive it formed the basis of its standing.
The D.C. Circuit rejected that argument. The court ruled that EPIC lacked both informational injury and organizational injury. As to the former, informational injury, the court said that EPIC "has not suffered the type of harm that section 208 of the E-Government Act seeks to prevent. Indeed, EPIC is not even the type of plaintiff that can suffer such harm." The court said that section 208 was designed to protect the privacy of individuals (here, voters), not an organization like EPIC, an organization that does not have members (much less voter members) and whose only interest is in "ensur[ing] public oversight of record systems."
As to organizational injury, the court said that, because the E-Government Act doesn't confer an informational interest on EPIC (as above), EPIC can't ground organizational injury on the Act. "It follows that any resources EPIC used to counteract the lack of a privacy impact assessment--an assessment in which it has no cognizable interest--were "a self-inflicted budgetary choice that cannot qualify as an injury in fact." Moreover, the Commission's request for voter information without an assessment didn't cause EPIC to take any particular measures.
Finally, the court said that halting the Commission's collection of voter data wouldn't likely redress any informational or organizational injury, anyway. That's because ordering the Commission to halt its collection of information--assuming the Commission is subject to the Act--"only negates the need (if any) to prepare an assessment, making it less likely that EPIC will obtain the information it says is essential to its mission of "focus[ing] public attention on emerging privacy and civil liberties issues."
Thursday, December 21, 2017
The ruling ends the case, unless and until it's appealed.
The case arose when CREW and other plaintiffs (including hotel- and restaurant-owners who compete with Trump properties) sued the President for accepting gifts and emoluments from foreign and domestic sources without congressional approval, in violation of the Emoluments Clause. The plaintiffs sought declaratory and injunctive relief.
The government argued that the plaintiffs lacked standing and that the case should be dismissed. Today Judge George B. Daniels (S.D.N.Y.) agreed.
The court said the "hospitality plaintiffs" lacked competitive standing, because they didn't sufficiently allege that President Trump's Emoluments Clause violations caused their injuries (lack of business due to competition with Trump properties) and that a successful suit would redress those injuries. The court explained:
Here, the Hospitality Plaintiffs argue that Defendant has adopted "policies and practices that powerfully incentivize government officials to patronize his properties in hopes of winning his affection." Yet . . . it is wholly speculative whether the Hospitality Plaintiffs' loss of business is fairly traceable to Defendant's "incentives" or instead results from government officials' independent desire to patronize Defendant's businesses. Even before Defendant took office, he had amassed wealth and fame and was competing against the Hospitality Plaintiffs in the restaurant and hotel business. It is only natural that interest in his properties has generally increased since he became President. As such, despite any alleged violation on Defendant's part, the Hospitality Plaintiffs may face a tougher competitive market overall. Aside from Defendant's public profile, there are a number of reasons why patrons may choose to visit Defendant's hotels and restaurants including service, quality, location, price and other factors related to individual preference. Therefore, the connection between the Hospitality Plaintiffs' alleged injury and Defendant's actions is too tenuous to satisfy Article III's causation requirement.
[Moreover,] Plaintiffs are likely facing an increase in competition in their respective markets for business from all types of customers--government and non-government customers alike--and there is no remedy this Court can fashion to level the playing field for Plaintiffs as it relates to overall competition. . . . [T]he Emoluments Clauses prohibit Defendant from receiving gifts and emoluments. They do not prohibit Defendant's businesses from competing directly with the Hospitality Plaintiffs.
The court went on to hold that the Hospitality Plaintiffs weren't within the zone of interests protected by the Emoluments Clause.
The court also held that CREW lacked standing, because its alleged harm (diversion of resources to monitor and respond to the President's Emoluments Clause violations) wasn't sufficient. "Here, CREW fails to allege either that Defendant's actions have impeded its ability to perform a particular mission-related activity, or that it was forced to expend resources to counteract and remedy the adverse consequences or harmful effects of Defendant's conduct. CREW . . . may have diverted some of its resources to address conduct it may consider unconstitutional, but which has caused no legally cognizable adverse consequences, tangible or otherwise, necessitating the expenditure of organizational resources."
Finally, the court ruled that the case raised a nonjusticiable political question (because of the Emolument Clause's textual commitment to a coordinate branch of government, Congress) and that the case wasn't ripe (because "a conflict between two coordinate branches of government . . . has yet to mature").
Wednesday, December 20, 2017
The Sixth Circuit ruled this week that the DOJ's and FBI's designation of a group as a "gang" wasn't a final agency action, and therefore the group couldn't challenge the designation as violating the First Amendment under the Administrative Procedure Act.
The case arose when the FBI's National Gang Intelligence Center designated Juggalos, fans of the musical group Insane Clown Posse, as a gang. Juggalos display distinctive tattoos, art, clothing, symbols, and insignia that demonstrate their affiliation with Insane Clown Posse, and associate with each other in order to share their support of the group. According to the NGIC Report, "many Juggalo subsets exhibit gang-like behavior and engage in criminal activity and violence."
Juggalos brought an APA claim against the DOJ and FBI, arguing that the gang designation violated their First and Fifth Amendment rights, because other law enforcement officers (including state and local officers) used the NGIC Report to target them.
The Sixth Circuit dismissed the case. The court said that the designation didn't cause law enforcement officers to target Juggalos; instead, officers voluntarily relied on the NGIC and used it for their own enforcement purposes. Therefore, the designation didn't cause any legal consequences to Juggalos, and it wasn't a final agency action under the APA.
The court noted, however, that its ruling didn't foreclose First Amendment suits against local law enforcement officers under 42 U.S.C. Sec. 1983.
Judge Amy Berman Jackson (D.D.C.) ruled today that Freedom Watch, Inc., lacked standing to bring a mandamus action to force Justice Department review of Special Counsel Robert Mueller's investigation and, ultimately, to terminate Mueller and his staff.
Freedom Watch alleged that Mueller's team engaged in a "torrent of leaks" and has "unethical conflicts of interest." The organization asked the court to order various DOJ offices to investigate Mueller's team and, if the allegations prove true, to fire them.
Judge Jackson ruled that Freedom Watch lacked standing to sue. In particular, the court said that Freedom Watch only alleged generalized grievances, not specific harm to itself or its members:
The fact that plaintiff has taken on the mantel of seeking to shine light on alleged governmental wrongdoing does not mean that it is affected by that wrongdoing in any particularized way--what plaintiff alleges is that the wrongdoing harms its objectives, not it. This is exactly the sort of abstract injury that does not rise to the level of an injury-in-fact.
The court also said that Freedom Watch's complaint lacked redressability:
While plaintiff has detailed the source of defendants' authority to undertake investigations, and the reasons why, in plaintiff's view, they should act, it points to no legal source of a mandatory duty owed to plaintiff to act, and therefore supplies no basis for the Court's power to order defendants to do so.
The ruling means that the case is dismissed.
Friday, December 15, 2017
Judge Wendy Beetlestone (E.D. Pa.) ruled today that the Commonwealth of Pennsylvania was likely to succeed on the merits of its challenge to the Trump Administration's interim final rules rolling back Obamacare's contraception mandate. Judge Beetlestone issued a temporary injunction, halting enforcement of the rules.
The case, Pennsylvania v. Trump, arose when the administration issued two interim final rules that all but undid the Affordable Care Act's contraception mandate for any organization that didn't want to enforce it. One rule, the Religious Exemption Rule, said that any organization could claim an exemption based on a sincerely held religious belief; the other, the Moral Exemption Rule, said the same thing for any organization that claimed a sincere moral objection. Under the rules, objecting organizations didn't have to seek an accommodation; they could simply drop coverage (with ERISA notice to their employees).
Pennsylvania sued, arguing that the IRFs violated the Administrative Procedure Act, Title VII of the Civil Rights Act , equal protection, and the Establishment Clause.
Judge Beetlestone first ruled that the Commonwealth had standing--for exactly the same reasons why Texas had standing to challenge President Obama's DAPA program in Texas v. United States:
There is no daylight between the 2015 Texas suit against the federal government and the current Commonwealth suit against the federal government. Like Texas, the Commonwealth challenges agency action in issuing regulations--here, the New IRFs. It is all the more significant that the Commonwealth, like Texas before it, sues to halt affirmative conduct made by a federal agency. . . . Furthermore, like Texas and Massachusetts [in Massachusetts v. EPA], the Commonwealth seeks to protect a quasi-sovereign interest--the health of its women residents. . . . According to the Commonwealth . . . the Agencies' New IRFs will allow more employers to exempt themselves from the ACA's Contraceptive Mandate. Consequently, the Commonwealth contends that Pennsylvania women will seek state-funded sources of contraceptive care. Such a course of action will likely cause the Commonwealth to expend more funds to protect its quasi-sovereign interest in ensuring that women residents receive adequate contraceptive care.
She went on to rule that the IRFs likely violated the APA, for two reasons. First, the administration violated notice-and-comment rules in issuing the IRFs. The court rejected the government's argument that it had statutory authority to bypass notice-and-comment procedures, and that special circumstances justified bypassing those procedures. Next, the IRFs violated federal law, the ACA. In particular, the ACA mandates coverage for women's preventative care, and doesn't provide an exception for religious or moral beliefs. Moreover, the accommodation process doesn't violate the Religious Freedom Restoration Act (as the government maintained), and so there's no RFRA reason for the Religious Exemption Rule. (The government didn't even try to argue that the RFRA mandated the Moral Exemption Rule.)
Because the court held that the Commonwealth would likely succeed on its APA claims, it didn't rule on the constitutional claims.
The court went on to conclude that the Commonwealth demonstrated the other elements of a preliminary injunction, too.
Thursday, December 14, 2017
The Ninth Circuit this week ruled that the Secretary of the Interior could withdraw, for up to twenty years, over one million acres of land near Grand Canyon National Park from new uranium mining claims. The ruling deals a blow to mining companies and local governments who brought the lawsuit. But the blow may be temporary, if the current administration reverses course and allows mining.
The case, National Mining Association v. Zinke, arose when then-Secretary Salazar exercised his authority under the Federal Land Policy and Management Act and moved to withdraw the land from mining claims. Under the Act, the Interior Secretary has authority to withdraw large tracts of federal land from mining, so long as the Secretary publishes a notice in the Federal Register, affords an opportunity for public hearing and comment, and obtains consent to the withdrawal from any other department or agency involved in the administration of the relevant lands. Moreover, the Secretary can only withdraw land for 20 years, max, and has to report to Congress.
The Act also contains a legislative veto, allowing Congress, by concurrent resolution only (and not with a presidential signature), to veto the Secretary's withdrawal.
As soon as Salazar filed his Notice of Intent in the Federal Register, mining companies and local governments sued, arguing, among other things, that the Secretary lacked authority under the Act. Their theory went like this: The Act's legislative veto provision is unconstitutional under Chadha; the legislative veto is not severable from the rest of the Act (including the Secretary's authority to withdraw federal land); and therefore the unconstitutionality of the legislative veto provision dooms the entire withdrawal provision of the Act, including the Secretary's authority.
The Ninth Circuit rejected this theory. The court ruled that the legislative veto provision was severable, and didn't affect the Secretary's authority. Therefore, the Secretary could go ahead and initiate the withdrawal, pursuant to requirements under the Act, irrespective of the legislative-veto's invalidity.
The court went on to reject the several merits arguments against the Secretary's exercise of authority.
Wednesday, December 13, 2017
The Third Circuit ruled that school board officials are entitled to qualified immunity from a First Amendment claim by a disruptive speaker who the board excluded from future meetings. But the court also ruled that immunity did not extend to the school board itself.
The ruling sends the case back to the district court for further proceedings on municipal liability.
The case, Barna v. Board of School Directors of the Panther Valley School District, arose when the school board excluded speaker Barna from future meetings because he had made threatening and disruptive comments at earlier meetings. After giving Barna a second chance, which he blew, the board's attorney sent Barna a letter barring him from attending all board meetings or school extracurricular activities because his conduct had become "intolerable, threatening and obnoxious" and because he was "interfering with the function of the School Board." The board permitted Barna to submit written questions, however.
Barna sued individual board officials and the board itself for violating his free speech. The district court granted qualified immunity to all defendants and dismissed the case.
The Third Circuit partially reversed. As to the individual board officials, the court said that Barna's right to free speech wasn't clearly established at the time, because Barna cited no Supreme Court authority saying otherwise, and because Fourth Circuit precedent went against him:
We therefore conclude that, given the state of the law at the time of the Board's ban, there was, at best, disagreement in the Courts of Appeals as to the existence of a clearly established right to participate in school board meetings despite engaging in a pattern of threatening and disruptive behavior. Even if a "right can be 'clearly established' by circuit precedent . . . there does not appear to be any such consensus--much less the robust consensus--that we require to deem the right Barna asserts here as clearly established.
While the court didn't rule on the merits--it didn't have to in order to grant qualified immunity, because it concluded that a right to free speech wasn't clearly established at the time--it noted that it had "twice upheld the temporary removal of a disruptive participant from a limited public forum like a school board meeting." The difference in this case: Barna's ban was permanent.
As to the board, the court reversed. The court noted that under Owen v. City of Independence municipalities do not enjoy qualified immunity from suit for damages under Section 1983. The court sent the issue back to the district court for determination whether the action was a pattern or practice under Monell and, if so, a determination on the merits.
Monday, December 11, 2017
Check out Prof. Samuel L. Bray's piece, Multiple Chancellors: Reforming the National Injunction, in the Harvard Law Review. Bray argues that the national injunction--issued in key cases challenging policies of the Trump Administration and, earlier, the Obama Administration--is a recent development in equity that comes with negative consequences, including more forum shopping, worse judicial decisionmaking, a risk of conflicting injunctions, and tension with other doctrines and practices in the federal courts. Bray offers a "single clear rule" for injunctions: the "plaintiff-protective injunction," which enjoins the defendant's conduct only as to the plaintiff.
Saturday, December 9, 2017
The Ninth Circuit ruled this week that the standards for a conditional use permit in Ventura County left too much discretion to the decisionmakers and therefore violated the First Amendment. The ruling reverses a district court's dismissal of the plaintiff's First Amendment claim and sends the case back for a decision on the plaintiff's motion for a preliminary injunction.
The case, Epona, LLC v. County of Ventura, arose when the corporation sought a conditional use permit to use the outdoor area on his rural property for outdoor weddings. County officials denied the permit, concluding that the use was "not compatible with the rural community," that it had "the potential to impair the utility of neighboring property or uses," and that it had "the potential to be detrimental to the public interest, health, safety, convenience, or welfare . . . and the findings [in the local zoning law]." The corporation's owner sued, arguing that the standards and denial violated the First Amendment, and that the denial violated RLUIPA. The district court dismissed the claims.
The Ninth Circuit reversed on the First Amendment claim. The court ruled that Ventura County's standards left too much discretion to the decisionmakers, and therefore raised the possibility of content-based discrimination.
The standards say that a person seeking a conditional use permit for an event, including a wedding, show that the event is (among other things):
(b) compatible with the character of surrounding, legally established development;
(c) not . . . obnoxious or harmful, [and must not] impair the utility of neighboring property or uses;
(d) not . . . detrimental to the public interest, safety, convenience, or welfare;
(e) compatible with existing and potential land uses in the general area where the development is to be located . . . .
The scheme requires permitting officials to make "specific factual findings," which arguably made the standards more determinate.
Nevertheless, the court looked to "the totality of the factors" regarding the scheme and concluded that "the [conditional use permit] scheme fails to provide definite and specific guidelines for permitting officials." Moreover, the court said that the scheme failed to provide a time limit (as required by Freedman v. Maryland), so "compounds the problem created by the lack of definite standards for permitting officials." "Together, these defects confer unbridled discretion on permitting officials in violation of the First Amendment."
At the same time, the court rejected the plaintiff's RLUIPA claim, because the corporation isn't "a religious assembly or institution."
The court sent the case back for a ruling on the plaintiff's motion for a preliminary injunction on the First Amendment claim.
Friday, December 8, 2017
WaPo's Can He Do That? podcast takes on this question, in light of John Dowd's statement earlier this week that the "president cannot obstruct justice because he is the chief law enforcement officer . . . and has every right to express his view of any case." Check it out.
Wednesday, December 6, 2017
The American Constitution Society released its inaugural Supreme Court Review this week. This outstanding volume includes critical essays from top constitutional thinkers on the Court's 2016 Term, taking on the key cases and issues and putting them into a broader historical and doctrinal perspective. Check it out.
Dean Erwin Chemerinsky wrote the Foreword. Contributors include Samuel R. Bagenstos, Amanda Frost, Brianne J. Gorod, Richard L. Hasen, Ira C. Lupu and Robert W. Tuttle, Steve Sanders, and Stephen I. Vladeck. I had the honor and privilege to edit it.