Wednesday, October 26, 2016

Conservatives Make the Case for Obstruction of SCOTUS Nominees

In the wake of Senator McCain's statements last week--first saying that Senate Republicans would block any SCOTUS nominees by a President Clinton, then (kind of) walking it back--conservative scholars are starting to outline the case for absolute obstruction and even permanently reducing the size of the Supreme Court.

Ilya Shapiro makes the case at The Federalist; Michael Stokes Paulsen makes the case at the National Review. Both argue that the Constitution doesn't require the Senate to consider, much less approve, any nominee; and both note that nothing in the Constitution sets the number of justices at 9. Beyond those points, their arguments turn on politics alone--that obstruction will give the advantage to conservatives, at least until the 2020 election, and maybe beyond.

This flies in the face of Senate Republicans' stated reason for refusing to give Judge Garland a hearing (let the people decide, through the presidential election). When that explanation wears out, expect them to adopt these new, "constitutional" arguments.

October 26, 2016 in Congressional Authority, Courts and Judging, News | Permalink | Comments (1)

Monday, October 24, 2016

State Court Judges Politically Biased in Election Disputes

Profs. Joanna Shepherd and Michael S. Kang (both of Emory), in cooperation with the American Constitution Society, recently published a comprehensive empirical study of state-court decisions in election cases. The result: State court judges are politically biased in these cases and thus favor their own party's interests in election disputes.

The study provides yet one more reason not to elect judges, especially in partisan elections.

The study, Partisan Justice: How Campaign Money Politicizes Judicial Decisionmaking in Election Cases, forthcoming in the Stanford Law Review, is based on data from over 500 election cases from all 50 states from 2005 to 2014, including over 2,500 votes from more than 400 judges in state supreme courts.

The upshot:

Analyzing a new dataset of cases from 2005 to 2014, this study finds that judicial decisions are systematically biased by these types of campaign finance and re-election influences to help their party's candidates win office and favor their party's interests in election disputes.

The study finds that judicial partisanship is significantly responsive to political considerations that have grown more important in today's judicial politics. Judicial partisanship in election cases increases, and elected judges become more likely to favor their own party, as party campaign-finance contributions increase.

But "[t]his influence of campaign money largely disappears for lame-duck judges without re-election to worry about."

October 24, 2016 in Campaign Finance, Courts and Judging, News, Scholarship | Permalink | Comments (0)

Backpage Lacks Standing to Challenge Ban on Advertising Sex Trafficking

Judge Reggie B. Walton (D.D.C.) ruled today in v. Lynch that Backpage lacked standing to challenge a federal law criminalizing ads for sex trafficking.

The ruling ends this case, unless and until Backpage successfully appeals.

Backpage, an on-line classified ad service that hosts an "adult services" section, challenged the Stop Advertising Victims of Exploitation Act of 2015, which amended the existing sex-trafficking prohibition and created a criminal penalty for advertising sex trafficking, including trafficking of minors. Backpage brought a pre-enforcement challenge to the SAVE Act, arguing that it was unconstitutionally vague and overbroad, and that it violated Backpage's free speech. To establish standing, Backpage argued that it intended "to engage in a course of conduct arguably affected with a constitutional interest."

The court rejected that argument. The court said that Backpage only "intends to continue hosting third party advertisements, including advertisements that are adult-oriented and concern escort services," but not advertisements that (even arguably) violate the SAVE Act (which, according to the court, wouldn't be constitutionally protected, anyway). Because Backpage didn't "allege[] an intention to engage in a course of conduct arguably affected with a constitutional interest," and that is "proscribed by [the] statute [it] wishes to challenge," it lacked standing for its pre-enforcement challenge.

The court distinguished the several other cases that Backpage won, writing that those cases were different.

October 24, 2016 in Cases and Case Materials, First Amendment, Jurisdiction of Federal Courts, News, Opinion Analysis, Speech, Standing | Permalink | Comments (0)

Friday, October 21, 2016

No Political Question Bar for Abu Ghraib Torture Victims

The Fourth Circuit ruled today that victims of torture at the hands of a private military contractor are not barred by the political question doctrine from pressing their case in federal court.

The ruling is a significant victory for the plaintiff-victims and for access to justice in general. It means that some portion of this case (and maybe all of it) can move forward on the merits.

The case arose when former prisoners at Abu Ghraib sued a private military contractor, CACI, for torture and mistreatment under the Alien Tort Statute. After some up-and-down on different issues, the district court ruled that the case raised a non-justiciable political question and dismissed it. In particular, the district court said (1) that CACI was under the control of the military, (2) that the case raised questions of "sensitive judgments made by the military," and (3) that the court lacked judicially manageable standards for resolving the dispute.

The Fourth Circuit reversed and remanded. As to the district court's first two grounds, the Fourth Circuit said that they don't apply when a plaintiff alleges illegal behavior under international law or criminal law. "Accordingly, when a military contractor acts contrary to settled international law or applicable criminal law, the separation of powers rationale underlying the political question doctrine does not shield the contractor's actions from judicial review."

More particularly, as to the first ground (under the control of the military), the Fourth Circuit said that "when a contractor has engaged in unlawful conduct, irrespective of the nature of control exercised by the military, the contractor cannot claim protection under the political question doctrine." The court said that the district court improperly analyzed the under-the-control-of-the-military question and remanded for further consideration of the question of illegal conduct. (The court was quite clear, however, that there was some illegal behavior. The question on remand is just how much.)

As to the second ground (sensitive judgments of the military), the Fourth Circuit again looked to the legality of the conduct: "to the extent that the plaintiffs' claims rest on allegations of unlawful conduct in violation of settled international law or criminal law then applicable to the CACI employees, those claims fall outside the protection of the political question doctrine." The court said that the district court improperly analyzed the sensitive-judgments-of-the-military question and remanded this, too. (Again, the court was quite clear that there was some illegal behavior.)

In short:

Any conduct of the CACI employees that occurred under the actual control of the military or involved sensitive military judgments, and was not unlawful when committed, constituted a protected exercise of discretion under the political question doctrine. Conversely, any acts of the CACI employees that were unlawful when committed, irrespective whether they occurred under actual control of the military, are subject to judicial review. Thus, the plaintiffs' claims are justiciable to the extent that the challenged conduct violated settled international law or the criminal law to which the CACI employees were subject at the time the conduct occurred.

As to the third ground (that the court lacked judicially discoverable and manageable standards for adjudicating the case), the Fourth Circuit said that "torture" and "war crimes" are well defined in the U.S.C. The court said that it may be a hard question, but it's not one that lacks standards. No remand on this question.

In all, under the Fourth Circuit's ruling, some portion of this case (and maybe all of it) can move forward. It all depends on how much CACI behavior was clearly illegal.

October 21, 2016 in Cases and Case Materials, Courts and Judging, Jurisdiction of Federal Courts, News, Political Question Doctrine, Separation of Powers | Permalink | Comments (0)

Tuesday, October 18, 2016

Brennan Center on Secret Laws

The Brennan Center released a new report, The New Era of Secret Law. Here's from the introduction:

Most of all, there is scant public understanding of the depth and scope of the problem. OLC opinions and FISA Court opinions are the only two manifestations of secret law that regularly make headlines. But OLC and the FISA Court are not the only government entities that make law. Moreover, the factor driving secrecy in OLC and FISA Court opinions--namely, a dramatic increase in the scope of national security activities and authorities--is a potent force throughout much of government. How common is security-driven secret law, and where else is it occurring?

Solving the problem of secret law raises its own set of questions. Are there cases in which disclosure of rules or legal interpretations, even with sensitive facts redacted, could harm national security? How great is that risk, and how does it compare with the harms of secret law? What procedural and substantive reforms could help ensure that the public's interests in both transparency of laws and the security of the nation are best served?

This report attempts to shed light on these questions, beginning with the foundational inquiry into what secret law is.

October 18, 2016 in News, Scholarship | Permalink | Comments (1)

Friday, October 14, 2016

Gerhardt and Painter on Senate Obstruction of Judicial Nominees

Michael Gerhardt (UNC) and Richard Painter (U. Minn.) recently released The New Normal: Unprecedented Judicial Obstruction and a Proposal for Change, an ACS Issue Brief that criticizes Senate obstruction of judicial nominees and proposes a solution.

Gerhardt and Painter argue that the majority and minority leaders in the Senate should enter into a pact "to keep their respective members completely committed to the objectives of allowing every judicial nomination the opportunity to receive a hearing and making public the reasons for any opposition." "An agreement between the majority and minority is the same mechanism that was used in 2013 to fix the problem with anonymous holds over judicial nominations, and it is the only kind of mechanism that can guarantee that our federal courts, including the Supreme Court, will be fully staffed and capable of exercising their constitutional functions as the third branch of government."

Gerhardt and Painter's latest solution complements their earlier ones, from this 2011 ACS Issue Brief. There the authors prescribed this four-part plan:

1.    Nominees should get a Judiciary Committee hearing within 90 days of nomination;

2.    The Senate should bar the use of anonymous holds;

3.    Every nominee should come to the Senate with a presumption that the nominee will get a prompt Judiciary Committee hearing, with the burden falling on any senators who oppose the nomination "to make their case publicly"; and

4.    When a nominee is reported out of committee, there's a presumption "that a majority 'yes' votes are needed to confirm the nominee," with an up-or-down vote within 120 days of the nomination.

October 14, 2016 in Congressional Authority, Executive Authority, News, Separation of Powers | Permalink | Comments (0)

Tuesday, October 11, 2016

D.C. Circuit Hands Victory to Unitary Executive Theory, Defeat to CFPB

In a sweeping endorsement of the unitary executive theory, the D.C. Circuit ruled today in PHH Corp. v. CFPB that the Consumer Financial Protection Bureau is unconstitutional. But at the same time, the court limited the remedy to reading out the "for-cause" termination provision for the director and turning the Bureau into an ordinary executive agency.

The ruling allows the Bureau to continue to operate, but, unless the ruling is stayed pending the inevitable appeal, removes the for-cause protection enjoyed by the director. Because that for-cause protection is what makes the CFPB "independent," the ruling turns the Bureau into a regular executive agency, with a single head that enjoys no heightened protection from removal.

In an opinion by Judge Kavanaugh, the court ruled that the single head of the Bureau, terminable only for cause, put the Bureau outside the reach of the President, in violation of Article II. The court said that this feature of the Bureau--single head, terminable only for cause--meant that there was no political accountability for the Bureau, and no check on the director's actions. (The court contrasted this single-head structure with a board structure in an independent agency, where, according to the court, the members could check each other.) The court also said that the single-head structure cuts against the historical grain--that we've never done it that way. Here's a summary:

The CFPB's concentration of enormous executive power in a single, unaccountable, unchecked Director not only departs from settled historical practice, but also poses a far greater risk of arbitrary decisionmaking and abuse of power, and a far greater threat to individual liberty, than does a multi-member independent agency. The overarching constitutional concern with independent agencies is that the agencies are unchecked by the President, the official who is accountable to the people and who is responsible under Article II for the exercise of executive power. Recognizing the broad and unaccountable power wielded by independent agencies, Congress and Presidents of both political parties have therefore long endeavored to keep independent agencies in check through other statutory means. In particular, to check independent agencies, Congress has traditionally required multi-member bodies at the helm of every independent agency. In lieu of Presidential control, the multi-member structure of independent agencies acts as a critical substitute check on the excesses of any individual independent agency head--a check that helps to prevent arbitrary decisionmaking and thereby to protect individual liberty.

Emphasizing a unitary executive, the court wrote at length, and disapprovingly, about how the director is entirely unaccountable. But this ignores the fact that the for-cause termination provision does not mean "never able to fire." It also ignores other ways that a President can influence the Bureau, outside of just firing the director at will. And it also ignores other checks on the office, like statutory authorities and restrictions, congressional oversight, and (ironically) judicial review of CFPB actions (although these are obviously not presidential checks on the Bureau).

After ruling the CFPB unconstitutional--but saving it by striking only the for-cause termination provision for the director--the court went on to hold that the CFPB misapplied the Real Estate Settlement Procedures Act.

Judge Randolph joined the majority opinion and added that the ALJ who presided over the hearing (after the CFPB filed its charges) was appointed in violation of the Appointments Clause.

Judge Lecraft Henderson concurred in the court's statutory ruling, but argued that the court did not need to touch the constitutional question (because it could grant PHH relief under the statute alone).

This ruling is hardly the end of this case: it'll undoubtedly go to the Supreme Court.

October 11, 2016 in Appointment and Removal Powers, Cases and Case Materials, Executive Authority, News, Opinion Analysis, Separation of Powers | Permalink | Comments (0)

Tuesday, October 4, 2016

Seventh Circuit Reality Checks Mike Pence on Syrian Immigrants

Schwinn-stevenThe Seventh Circuit upheld a preliminary injunction against Indiana Governor Mike Pence's program to halt federal resettlement funds to a private organization that resettles Syrian immigrants. The smack-down ruling was hardly a surprise after the brutal oral arguments, just last month.

The ruling means that Indiana cannot stop payment of federal funds for Syrian resettlement, at least for now. But if the courts' actions so far are any indication, this preliminary injunction will quickly turn to a permanent one.

The case arose when Governor Pence announced that he would stop payment under the federal Refugee Act for resettlement of Syrians, and Syrians alone. But there was a problem: The Refugee Act bans discrimination by nationality, among other characteristics. And that's exactly what Pence did in denying payment for Syrian resettlement.

The Seventh Circuit rejected Pence's argument that he wasn't really discriminating by nationality:

But that's the equivalent of his saying (not that he does say) that he wants to forbid black people to settle in Indiana not because they're black but because he's afraid of them, and since race is therefore not his motive he isn't discriminating. But that of course would be racial discrimination, just as his targeting Syrian refugees is discrimination on the basis of nationality.

The court also schooled Pence on some basics of refugee screening (it's thorough, and the federal government does it, without the second-guessing of the likes of Pence), and called him on his empty claims and baseless fears:

The governor of Indiana believes, though without evidence, that some of these persons were sent to Syria by ISIS to engage in terrorism and now wish to infiltrate the United States in order to commit terrorist acts here. No evidence of this believe has been presented, however; it is nightmare speculation.

The ruling only affirms the lower court's grant of a preliminary injunction, so theoretically doesn't end the case. But the handwriting is on the wall: This program violates the terms of the federal Refugee Act.

October 4, 2016 in Cases and Case Materials, Federalism, News, Opinion Analysis | Permalink | Comments (0)

Friday, September 30, 2016

Tax Court is, Indeed, a "Court" (Under FOIA)

Judge Rudolph Contreras (D.D.C.) ruled in Byers v. United States Tax Court that the Tax Court is a "court," not an "agency," under FOIA. The ruling means that the Tax Court isn't subject to the plaintiff's FOIA request.

The case arose when Ronald Byers filed a FOIA request against the Tax Court. Byers argued that the Tax Court should be exempt from FOIA (as Article III courts are), because it's located in the Executive Branch.

Judge Contreras disagreed. He wrote that the touchstone for FOIA coverage of the Tax Court isn't where the Tax Court is located, but rather its nature. "[A] number of factors, including congressional intent, Supreme Court interpretation, and the function of the Tax Court, all suggest that the Tax Court is best understood as a court, not an agency, for the purposes of FOIA." And because FOIA exempts "courts of the United States," the Tax Court is exempt.

September 30, 2016 in Cases and Case Materials, Courts and Judging, News, Opinion Analysis, Separation of Powers | Permalink | Comments (0)

Eleventh Circuit Upholds PAC-to-PAC Transfer Ban

The Eleventh Circuit this week rejected a First Amendment challenge to Alabama's ban on PAC-to-PAC political contributions. The ruling upholds Alabama's ban and deepens a split in the circuits.

The Alabama Democratic Conference, an Alabama PAC perhaps best known for its yellow sample ballot that it distributes to voters, brought the case, arguing that Alabama's law that bans political contributions between PACs violates free speech. The ADC gets money from individual contributors, other PACs, and even candidates; it spends money in support of particular candidates and independent advocacy. The ADC uses separate bank accounts for candidate contributions and its own independent expenditures. Still, the state's PAC-to-PAC transfer ban prohibited the ADC from receiving money from other PACs. So it sued.

The Eleventh Circuit upheld the state's transfer ban. The court ruled that the state enacted the ban in response to a concern by state voters that PAC-to-PAC transfers were being used to conceal the true identity of political contributors--and raised the appearance of quid pro quo corruption. Moreover, the court said that the ADC didn't do enough to segregate its two accounts to reduce the appearance that it might use other PACs' contributions for candidate contributions. Because the ban was closely drawn to address the appearance of corruption, the Eleventh Circuit upheld it.

The ruling aligns with the Second and Fifth Circuits, but against the Tenth, on the question whether a PAC-to-PAC transfer ban violates free speech, when a PAC has two separate accounts, one for candidate contributions and the other for independent expenditures.

September 30, 2016 in Campaign Finance, Cases and Case Materials, First Amendment, News, Opinion Analysis | Permalink | Comments (0)

Wednesday, September 28, 2016

Call for Papers: Symposium on the Constitution of Canada

Scuola Sant' Anna and the STALS (Sant' Anna Legal Studies) Project are hosting a symposium on The Constitution of Canada: History, Evolution, Influence and Reform in Pisa, Italy, on May 24, 2017. Hosts are calling for papers:

Submissions are invited from scholars at all levels--from senior scholars to doctoral students--on one or more of the following subjects. We invite participants to take any methodological approach they wish, including comparative, doctrinal, empirical, historical and/or theoretical perspectives.

1.    The History and Evolution of the Constitution of Canada

2.    The Influence Abroad of the Constitution of Canada

3.    Canada's "Invisible" Constitution

4.    Reforming Canada's Constitution: Perspectives from Abroad

500-word abstracts are due by December 15, 2016, to The full call is here.

You can direct questions to Giuseppe Martinico, at

September 28, 2016 in Comparative Constitutionalism, Conferences, News | Permalink | Comments (0)

Thursday, September 22, 2016

Judge Slaps FEC for Erroneous Analysis of Political Committee

Judge Christopher R. Cooper (D.D.C.) ruled earlier this week that the controlling members of the FEC applied the wrong legal analysis in concluding that two groups were not "political committees" under federal campaign finance law. The ruling reverses and remands to the FEC for reconsideration.

The case matters because designation as a "political committee" triggers more stringent reporting requirements under campaign finance law. Judge Cooper's ruling makes it more likely that a group would be considered a "political committee," and thus marks a victory for campaign disclosure advocates.

The case arose when CREW lodged a complaint with the FEC that two groups, American Action Network and Americans for Job Security, were unregistered "political committees." Those groups spent money on TV ads and other electioneering communication in three congressional districts in the 2010 elections. In response to CREW's complaint, three FEC commissioners determined that the groups' "major purpose" wasn't "the nomination or election of a candidate," and therefore that they were not "political committees" under campaign finance law. The commissioners reasoned that the groups' electioneering communications--ads that mentioned a candidate, but that did not advocate for or against a candidate's election--shouldn't be considered in determining the "major purpose," and that groups' purposes over their entire history should be considered in determining their "major purpose."

Judge Cooper disagreed. He ruled first that under Buckley and its progeny, the commissioners should have considered the groups' electioneering communications in determining their "major purpose":

CREW's citations to legislative history, past FEC precedent, and court precedent certainly support the conclusion that many or even most electioneering communications indicate a campaign-related purpose. Indeed, it blinks reality to conclude that many of the ads considered by the Commissioners in this case were not designed to influence the election or defeat of a particular candidate in an ongoing race. . . . Instead, the Court will limit itself to identifying the legal error in the Commissioners' statements--that is, the erroneous understanding that the First Amendment effectively required the agency to exclude from its consideration all non-express advocacy in the context of disclosure.

Judge Cooper ruled next that the commissioners wrongly considered the groups' spending over their entire existence, instead of confining their analysis to spending within the most recent calendar year, in determining the "major purpose." He explained that a group's purpose can change over time:

The Commissioners' refusal to give any weight whatsoever to an organizations' relative spending in the most recent calendar year--particularly in the case of a fifteen-year-old organization like AJS--indicates an arbitrary "fail[ure] to consider an important aspect of the [relevant] problem."

Judge Cooper sent the case back to the FEC and ordered it "to conform with [this] declaration within 30 days." The FEC can, of course, appeal.

September 22, 2016 in Campaign Finance, Cases and Case Materials, First Amendment, News, Opinion Analysis | Permalink | Comments (0)

Wednesday, September 21, 2016

Tenther States Claim Sovereign Right Not to Pay Employees Overtime

Twenty-one states, led by Texas, sued the federal government this week over the Labor Department's new overtime rule. The complaint, which argues that the rule violates the Tenth Amendment and principles of state sovereignty, puts Garcia, long a thorn in the side of states'-righters, on the chopping block.

The suit challenges DOL regulations under the Fair Labor Standards Act that raise the threshold exemption for overtime pay. This means that employers now have to pay overtime to employees who earn up to $47,476, up from $23,660. (The FLSA only exempts "managerial" positions from the overtime requirement. DOL has long used a salary test as a proxy for "managerial" in its regulations, however.) The rule applies to both private-sector employers and states.

The states argue that the new rule will cost them money and require them to reshuffle spending priorities, interfering with their state sovereignty and violating the Tenth Amendment.

The Supreme Court at one time would have agreed. The Court ruled in National League of Cities v. Usery in 1976 that the FLSA minimum-wage requirement violated the Tenth Amendment for exactly these reasons. But less than a decade later, when it became clear that this approach couldn't work across the myriad federal regulations that applied to states in their non-sovereign capacity, the Court walked back. It ruled in Garcia v. San Antonio Metropolitan Transit Authority (1985) that the FLSA did not violate the Tenth Amendment, and that states had plenty of protection against federal overreach through the ordinary political process.

Now the plaintiffs in this latest lawsuit explicitly argue that Garcia should be overruled. They say that subsequent developments in the law have undermined the case, and that it's time to go back to National League of Cities.

The complaint speaks in terms of the additional burden to the states of the new DOL regulation, but its logic extends to any federal standard (like minimum wage, maximum hours, worker safety, etc.) imposed on the states. As a result, the case, if ultimately successful, would work a sea change in federal-state relations as they've existed since 1985, potentially across policy areas. That seems unlikely given the current composition of the Court. But who knows what might happen after the election.

The states also argue that the new regulation exceeds DOL authority under the FLSA, because the FLSA sets the overtime requirement based on job type ("managerial"), but the DOL regs set the requirement based on salary. This claim may have more traction (in the Fifth Circuit, at least, and possibly before the Supreme Court). It's similar to the core claim in the last state effort, also led by Texas, to challenge administrative action as a violation of the Constitution and the Administrative Procedures Act--in that case, the DAPA program. An evenly divided Supreme Court left in place the Fifth Circuit's ruling that DAPA violated the APA.

September 21, 2016 in Cases and Case Materials, Federalism, News, Opinion Analysis, Tenth Amendment | Permalink | Comments (0)

District Court Orders Texas to Halt its Nonsense Over Voter ID

After the Fifth Circuit ruled this summer that Texas's voter ID law violated the Voting Rights Act, and after a district court ordered the state to educate voters on voting requirements in light of that ruling (that voters need not produce ID), Texas continued to play games to dodge the courts' rulings and hassle voters. For example, the state issued misleading materials that mischaracterized language in the district court's order, and state officials threatened to investigate anyone who signed a declaration saying that they couldn't get the required ID.

So the district court issued a new order yesterday, requiring the state to re-issue press releases, edit printed material to go at polling places, edit its web-site and online materials, and "provide counsel for all Plaintiffs scripts and copy for documents and advertisements that have not yet been published for review and objection prior to publication."

The Texas AG is reportedly planning to seek Supreme Court review of the Fifth Circuit ruling this week.

The Brennan Center has all the litigation documents and a good overview of the case here.

September 21, 2016 in Cases and Case Materials, Elections and Voting, News | Permalink | Comments (0)

Immigrant Children Between a Rock and a Hard Place on Right to Counsel Claims

The Ninth Circuit ruled yesterday that a federal district court lacked jurisdiction to hear a class-action claim by immigrant children that they have a right to counsel in deportation proceedings.

While the judges on the panel wrote separately to acknowledge the challenging barriers for unrepresented child-immigrants in the deportation process, the upshot of the ruling is that immigrant children remain between a rock and a hard place in lodging a right-to-counsel claim, and, thus, in the deportation process itself.

The case arose when immigrant children aged 3 to 17 filed suit in federal district court arguing that they had a constitutional and statutory right to counsel in deportation proceedings. The problem was that the Immigration and Naturalization Act provides for an appeal process in administrative deportation proceedings that permits an immigrant to appeal to a federal circuit court and consolidates "all questions of law and fact . . . arising from any action taken or proceeding brought to remove an alien .  .  only in judicial review of a final order . . . ." This means that an immigrant can raise deportation-related claims only in his or her direct appeal of an administrative deportation order, and not in a collateral process (like a separate case in district court).

The children argued that the INA's jurisdictional provision means that, as a practical matter, they could never raise a right-to-counsel claim on direct appeal of a deportation order. That's because one of two things could happen in deportation proceedings. First, an immigrant could have an attorney, in which case they wouldn't have standing to raise a right-to-counsel claim on direct appeal. Alternatively, an immigrant could not have an attorney. But in that case, given the complexities of the immigration process, a child couldn't adequately develop a record to successfully appeal (if they could even figure out how to appeal). (Immigration judges won't deal with the issue, so the children really would have to raise it on appeal to the federal circuit court.) So, they argued, they should be able to file a collateral class action in federal district court on the right-to-counsel claims.

The Ninth Circuit disagreed. The court ruled that the INA's jurisdictional provision directly answered the question: the children could only raise their right-to-counsel claims through the administrative deportation process and on direct appeal to the federal circuit court.

The panel judges wrote separately to acknowledge the unique challenges that immigrant children face in this labyrinthine process, and the practical difficulties in raising a right-to-counsel claim. They also wrote that there's wide agreement that children need an attorney in deportation proceedings. But in the end, according to the court, right to counsel is an issue to raise only on direct appeal.

Or: Congress could simply fix it by providing a statutory right to counsel for children in deportation proceedings.

September 21, 2016 in Cases and Case Materials, Jurisdiction of Federal Courts, News, Opinion Analysis, Procedural Due Process | Permalink | Comments (0)

Tuesday, September 20, 2016

Divided Sixth Circuit Weighs in On Federal Gun Ban for Involuntary Commitment

A divided en banc Sixth Circuit last week reversed a district court's order dismissing an as-applied Second Amendment challenge to the federal ban on gun possession by anyone "who has been adjudicated as a mental defective or who has been committed to a mental institution."

The ruling sends the case back to the district court to give the government a second chance to show that the federal ban meets intermediate scrutiny. The ruling doesn't end the case, and it doesn't say whether the ban violates the Second Amendment. It just sends the case back to give the government a second bite at the apple.

In short, the ruling says this: A person's long-ago involuntary commitment doesn't necessarily make them a danger today, and, without a safety valve for individuals who no longer pose a danger, the federal ban may sweep too broadly with respect to currently safe individuals.

The case arose when 74-year-old Clifford Tyler tried to buy a gun. Tyler was rejected by the county sheriff, because he had been involuntarily committed for less than 30 days in the 1980s. Still, despite not showing any evidence of mental illness in his latest check, in 2012, under federal law, 18 U.S.C. Sec. 922(g)(4), Tyler couldn't possession a firearm.

Moreover, federal law didn't allow any exception. It turns out that federal law used to permit an applicant, otherwise barred by Section 922, to apply to the Attorney General for an exception. But Congress de-funded that authority, and then transferred it to participating states. Tyler's state, Michigan, hadn't accepted it, so Tyler had no recourse.

The Sixth Circuit ruled that Tyler made out a case, at least sufficient to withstand a motion to dismiss. As an initial matter, the court held that Heller's list of "presumptively lawful regulatory measures" did not answer the questions. According to the court, that's because Section 922(g)(4) is a relatively new innovation, and doesn't have the kind of "historical pedigree" that would allow it to "give Heller conclusive effect." "In the absence of such evidence, it would be odd to rely solely on Heller to rubber stamp the legislature's power to permanently exclude individuals from a fundamental right based on a past involuntary commitment."

The court next turned to the two-part approach under circuit precedent and adopted in several other circuits. It ruled first that the ban "burdens conduct that falls within the scope of the Second Amendment, as historically understood." It particular, "historical evidence . . . does not directly support the proposition that persons who were once committed due to mental illness are forever ineligible to regain their Second Amendment rights." It ruled next that the ban failed intermediate scrutiny. It said that while the government had important enough interests (keeping guns out of the hands of risky people, protecting the community, and preventing suicide), the flat, lifetime ban was too broad. The court noted that some persons with a past commitment for a mental condition do not currently have a mental condition, and can safely possess a firearm. But without a procedure for an exception, the ban prohibits anyone with a past commitment from possessing a firearm.The ruling drew several separate opinions, both concurring and dissenting. As summed up by the principal opinion, "ten of us would reverse the district court; six of us would not. And at least twelve of us agree that intermediate scrutiny should be applied, if we employ a scrutiny-based analysis." Thus, the court remanded with specific instructions to allow the government to satisfy intermediate scrutiny by introducing additional evidence in support of the lifetime ban or additional evidence showing that the ban would be constitutional as to Tyler, because he would pose a risk to himself or others if he had a gun.

September 20, 2016 in Cases and Case Materials, News, Opinion Analysis, Second Amendment | Permalink | Comments (0)

Friday, September 16, 2016

Plaintiff Can't Challenge Dog's Dismissal in Federal Court

The Seventh Circuit ruled today that a service-dog owner can't challenge a state judge's order banning the dog from the courtroom in federal district court. The ruling leaves the owner with state-court remedies, but no remedy in federal district court, for this violation of the Americans with Disabilities Act.

The case arose when a state court probate judge ordered Gloria Jean Sykes to stop bringing her service dog, Shaggy, to probate proceedings. Sykes uses Shaggy for assistance with her post-traumatic stress disorder, but the judge nevertheless ordered Shaggy out.

Sykes sued in federal district court, arguing that the judge's behavior toward her (critically questioning her need for Shaggy) and the order violated the ADA. The district court dismissed the case, and Sykes appealed.

The Seventh Circuit ruled that the Rooker-Feldman doctrine barred the suit. The Rooker-Feldman doctrine says that a lower federal court cannot exercise jurisdiction over cases brought by state court losers challenging state court judgments rendered before the district court proceedings commenced. "Claims that directly seek to set aside a state court judgment are de facto appeals which trigger the doctrine. But even federal claims which were not raised in state court, or that do not on their face require review of a state court's decision, may still be subject to Rooker-Feldman if those claims are inextricably intertwined with a state court judgment."

The court rejected Sykes's arguments that her ADA claim wasn't intertwined with the state court judgment (the Shaggy ban). In particular, the court rejected her argument that the judge's conduct, not just the order, violated the ADA, and that the practices in the courthouse violated the ADA (in the spirit of Tennesse v. Lane). The court said that the claim and the judgment were still intertwined: "[T]o provide any relief in response to the harm stemming from [the judge's] acts, her court order banning Shaggy would need to be set aside."

The court noted that Rooker-Feldman would permit the suit, for example, if the courthouse "had a policy of banning service animals." The court also noted that Sykes could have sought mandamus in the state courts, pursued an interlocutory appeal in the state courts, or filed a motion for a supervisory order under state court rules.

September 16, 2016 in Cases and Case Materials, Jurisdiction of Federal Courts, News, Opinion Analysis | Permalink | Comments (0)

Can Congress Investigate and Issue and Enforce Subpoenas Against State AGs?

In the latest chapter in the state climate-fraud investigations and the congressional response to those investigations, the House Committee on Science, Space, and Technology this week held a hearing on its oversight authority to investigate, issue subpoenas to, and enforce subpoenas against New York and Massachusetts State Attorneys General and several environmental organizations regarding the AGs' investigations fraud by Exxon. (The AGs and organizations refused to comply with the subpoenas this summer.)

The Committee heard testimony from Profs. Jonathan Turley (GWU), Ronald Rotunda (Chapman), Charles Tiefer (U. Balt.), and Elizabeth Price Foley (FIU). The Committee's hearing page, including links to the testimony and to Chairman Lamar Smith's opening statement, is here.

September 16, 2016 in News | Permalink | Comments (0)

Thursday, September 15, 2016

No Standing to Challenge Export of Chimps

Judge Ketanji Brown Jackson (D.D.C.) ruled in New England Anti-Vivisection Society v. U.S. Fish and Wildlife Service that the plaintiff organization lacked standing to challenge an export permit issued by the FWS for certain chimpanzees. The ruling means that this case ends (except NEAVS's FOIA claim), unless and until NEAVS successfully appeals.

The case arose when the FWS issued an export permit under the Endangered Species Act that allowed Yerkes National Primate Research Center to transfer eight of its chimpanzees to a zoo in the U.K. (The ESA requires an export permit in order to export endangered species.) NEAVS sued, lodging several causes of action, but the FWS moved to dismiss for lack of standing.

NEAVS argued that it had informational standing, "because the FWS's failure to collect the information necessary to conclude that the authorized export will 'enhance the survival' of the chimpanzee species." It argued that it had organizational standing, because FWS's permit decision would harm its ability to carry out a key mission--ending the use of animals in research, testing, and science education. And it argued that its members had individual standing, because those members formed strong bonds with the particular chimpanzees that will be exported, and that they hope to see them again.

The court held that NEAVS lacked informational standing, because Section 10(c) doesn't require an agency to collect the information that NEAVS cites. "By its terms, then, Section 10(c) creates a 'right to information[,]' but that right extends only to the information that the agency receives in connection with a permit application, and Congress did not impose any duty to make an affirmative effort to collect certain information as part of the permitting process . . . ."

The court held that NEAVS lacked organizational standing, because, under circuit precedent, its interests are simply too abstract. "NEAVS has not shown that [the] export permit impairs NEAVS's own activities or operations in any perceptible way. Indeed, the testimony that Plaintiffs have offered comes nowhere close to specifying how the permit interferes with NEAVS's ability to do its job . . . and, instead, NEAVS's declarant makes statements that are remarkably close to the kinds of general mission-frustration contentions that the D.C. Circuit has considered (and rejected) as a basis for finding organizational standing.

The court held that there was no individual standing, because "the dashed-hopes harm these individual plaintiffs allegedly have suffered" is not an injury in fact, and it "is also not even fairly traceable to FWS's decision to issue the export permit." And any aesthetic injury was to speculative, or was self-inflicted.

September 15, 2016 in Cases and Case Materials, Jurisdiction of Federal Courts, News, Opinion Analysis, Standing | Permalink | Comments (0)

Radiolab on the AUMF

Check out Radiolab's segment on the Authorization for Use of Military Force--an engaging and accessible discussion of the "60 words" (plus a couple read into it) that the government has used to justify operations against alleged terrorists, and the need to update it.

September 15, 2016 in Executive Authority, News, Separation of Powers | Permalink | Comments (0)