Friday, April 21, 2017

DOJ Moves to Clamp Down on Sanctuary Cities

The Department of Justice sent nine letters today reminding "sanctuary" jurisdictions that "as a condition for receiving certain financial year 2016 funding from the Department of Justice, each of these jurisdictions agreed to provide documentation and an opinion from legal counsel validating that they are in compliance with Section 1373." Here's DOJ's press release.

The move is the administration's latest effort to clamp down on sanctuary cities. We posted on President Trump's original EO here.

Section 1373 says that "a Federal, State, or local government entity or official may not prohibit, or in any way restrict, any government entity or official from sending to, or receiving from, the Immigration and Naturalization Service information regarding the citizenship or immigration status, lawful or unlawful, of any individual."

The DOJ letters to sanctuary cities say that the FY 2016 Edward Byrne Memorial Justice Assistance Grant Program conditions federal funds on compliance with this provision. That Program provides funds for law enforcement and related purposes. It amounts to a relatively modest sum of federal support for the targeted jurisdictions and probably runs well short of all federal spending in these jurisdictions. (President Trump's EO, in contrast, targets all "Federal grants, except as deemed necessary for law enforcement purposes by the Attorney General or the Secretary.")

These features may make it more difficult for targeted jurisdictions to challenge DOJ's latest move and any subsequent move to withhold federal funds as applied to JAG Program grants. (If the JAG Program makes this condition specific, and if immigration enforcement is sufficiently related to the purposes of the JAG grant for any given targeted jurisdiction, and if the amount of money involved does not turn pressure into compulsion, then a move to withhold JAG funds from jurisdictions that don't comply may withstand judicial scrutiny.)

But because President Trump's EO remains on the books with its full breadth, jurisdictions can still lodge facial challenges against the administration to block the full force of the EO. And the pending cases challenging the EO on its face are likely to move forward, despite this latest DOJ move.

April 21, 2017 in Cases and Case Materials, Federalism, News | Permalink | Comments (0)

Thursday, April 20, 2017

Fifth Circuit Tosses State Prosecution of Federal Officer

The Fifth Circuit today threw out a criminal case brought by Texas against a federal FBI deputy, citing Supremacy Clause immunity. The ruling means that the state's case against the officer ends, although the court noted that federal authorities could still bring a federal case.

The case arose when Charles Kleinert, specially deputized by the FBI to investigate bank robberies, accidentally shot a person during an investigation. The victim showed up to a bank that was closed after an actual robbery. When Kleinert, who was in the bank, came out, the victim gave Kleinert a false name and allegedly exhibited other suspicious behavior. When Kleinert called him on the false name, the victim fled. Kleinert followed and eventually nabbed the victim. In the course of a struggled, Kleinert's weapon discharged and struck and killed the victim.

A Travis County grand jury indicted Kleinert for manslaughter. Kleinert removed the case to federal court (under the "federal officer removal" statute) and moved to dismiss, arguing that he was immune from state prosecution under Supremacy Clause immunity. The district court agreed and dismissed the case; the Fifth Circuit affirmed.

Supremacy Clause immunity prohibits a state from punishing (1) a federal officer (2) authorized by federal law to perform an act (3) who, in performing the act, did no more than what the officer subjectively believed was necessary and proper and (4) that belief was objectively reasonable under the circumstances.

The Fifth Circuit held that Kleinert was authorized by federal law to pursue and arrest the victim, because, under the circumstances, he had probable cause that criminal activity was afoot. The court held that he had a subjective belief that his action was necessary and proper, because, under the circumstances, he acted consistently with his training, without any animus toward the victim. And the court said that Kleinert's belief was objectively reasonable, because his acts were consistent with what others would have done. (The state conceded that Kleinert was a federal officer.)

The ruling ends the state prosecution. But the court specifically noted that Kleinert might still be subject to federal prosecution.

April 20, 2017 in Cases and Case Materials, Federalism, News, Opinion Analysis | Permalink | Comments (0)

Wednesday, April 19, 2017

CREW Files Amended Emoluments Complaint

The Center for Responsibility and Ethics in Washington sought to tighten standing by adding plaintiffs to its complaint against President Trump for violations of the Emoluments Clause. We previously posted on the case here.

CREW's standing to sue was sure to be an early issue, even a roadblock, in the case. So the organization added plaintiffs ROC United, a nonprofit corporation with restaurant members and a restaurant owner in its own right, and an individual who books events for Washington hotels. Both new plaintiffs argue that President Trump, by doing and gaining business at his own hotels and restaurants in violation of the Emoluments Clause, is harming their bottom line by taking away business.

The move is designed the tighten standing. In order to sue in federal court, a plaintiff has to show that they suffered an actual or imminent concrete and particularized injury, that the defendant's alleged actions caused the injury, and that their requested relief would redress their injury. The amended complaint almost surely satisfies these requirements, but we're still likely to see a motion to dismiss for lack of standing.

April 19, 2017 in Cases and Case Materials, Courts and Judging, Jurisdiction of Federal Courts, News, Standing | Permalink | Comments (0)

Stone on Spencer's Speech at Auburn

Check out Geoff Stone's op-ed in the NYT on Auburn's invitation, then dis-invitation, to white nationalist Richard B. Spencer to speak on campus.

April 19, 2017 in First Amendment, News | Permalink | Comments (0)

Monday, April 17, 2017

Turkey's Constitutional Referendum

The NYT reports that with 99 percent of the votes in, Turkey's constitutional referendum passed 51.3 percent to 48.7 percent.

The referendum shifts Turkey from a parliamentary system to an independent presidential one, among making other changes. On net, the changes shift power to the president (especially in the areas of executive power and judicial appointments), but also build in some checks.

Brookings has a nice summary here; the Center for American Progress has a good summary here.

April 17, 2017 in Comparative Constitutionalism, News | Permalink | Comments (0)

Friday, April 14, 2017

Court Gives No First Amendment Protection to Competition Art at U.S. Capitol

Judge John D. Bates (D.D.C.) ruled today that a student whose painting was displayed at the U.S. Capitol after winning an congressional art competition enjoyed no First Amendment right against the Architect of the Capitol when the Architect took the painting down based on its viewpoint.

Judge Bates said that the painting amounted to government speech, and that it was therefore not protected by the First Amendment.

The ruling is just the latest chapter in a dispute over the painting between a group of Republican lawmakers and law enforcement advocates, and the Congressional Black Caucus.

The case arose when high school student David Pulphus's painting was selected to represent Missouri's First Congressional District in the 2016 Congressional Art Competition. As a result, Pulphus's painting hung, along with other selected works, in the Cannon Tunnel in the U.S. Capitol complex. But this didn't sit well with some members of Congress, who saw the painting as anti-police. They took it upon themselves to remove the painting and deliver it to the office of Congressman William Clay, who represents the First District. After each removal, Clay, whose district includes Ferguson, then took it upon himself to return the painting to its place in the Cannon Tunnel.

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Zach Gibson, AP

Eventually the Architect removed the painting, but did not explain exactly why. Clay and Pulphus then sued, arguing that the removal constituted viewpoint discrimination in a designated public forum and therefore violated free speech.

Judge Bates disagreed. Applying three factors from Walker v. Sons of Confederate Veterans and Pleasant Grove City v. Summum, Judge Bates said (1) that the "traditional use of the medium" was "inconclusive," but (2) that "[t]he government, then, is understood by the public as speaking through that exercise of choosing which works are displayed in the art competition," and (3) that the Architect "retains editorial control over the art submitted in the competition." He concluded that Pulphus's piece therefore amounted to government speech (and not private speech in a limited public forum), and therefore enjoyed no First Amendment protection.

Judge Bates also rejected the plaintiffs' vagueness challenge, writing that "[w]hen the government speaks, it is free to promulgate vague guidelines and apply them arbitrarily."

April 14, 2017 in Cases and Case Materials, First Amendment, News, Speech | Permalink | Comments (0)

Thursday, April 13, 2017

ACS Symposium on The Future of the U.S. Constitution

Check out the ACSblog on-line symposium here.

April 13, 2017 in Conferences, News | Permalink | Comments (0)

Greenhouse on the Broken Supreme Court

Wednesday, April 12, 2017

UPDATED: Trump Administration to Continue Contested Insurance Subsidies Under ACA

Update: Might've spoken a little too soon. President Trump told the WSJ yesterday that he's still considering withholding subsidies.

The Trump Administration will continue to pay subsidies to health insurance companies on the exchanges under the Affordable Care Act, despite a district court ruling against the Obama Administration that they are illegal, according to the NYT.

The decision will help to keep the exchanges operating.

Recall that Judge Rosemary Collyer (D.D.C.) ruled that the Obama Administration illegally spent money on the subsidies to ACA exchange insurers without a valid congressional authorization.

The ACA provides for the subsidies, but Congress didn't fund them. President Obama went ahead and paid them, anyway.

The lawsuit, brought by congressional Republicans, is on appeal. The Trump Administration hasn't announced its position in the litigation, beyond saying that it'll continue to fund the subsidies for now.

April 12, 2017 in Executive Authority, News, Separation of Powers | Permalink | Comments (0)

State Attorney Argues Separation of Powers in Lawsuit Against Governor Over Death Penalty

Aramis Ayala, the State Attorney for Florida's Ninth Judicial Circuit, filed suit yesterday against Governor Rick Scott over Scott's effort to remove Ayala from 23 pending homicide cases. Scott issued a series of executive orders purporting to transfer the cases to a neighboring state attorney after Ayala announced that she would not seek the death penalty in some of those cases.

Ayala's lawsuit raises state constitutional separation-of-powers issues, pitting the independently-elected State Attorney's authority to prosecute cases within her jurisdiction against the Governor's authority to execute the law.

In particular, Ayala argues in her state supreme court writ of quo warranto that Scott's executive orders violate the state attorney's power to prosecute all cases in that circuit. Article V, Section 17 of the Florida Constitution provides that the state attorney for each judicial circuit "shall be the prosecuting officer in all trial courts in that circuit." The constitution contains two exceptions, but neither applies. Ayala argues that Scott's executive orders violate the provision vesting her office alone with prosecutorial authority within her district.

Ayala also claims that the governor's constitutional powers to "take care that the laws be faithfully executed" and "supreme executive power" don't authorize his actions, because the Florida Constitution specifically allotted her powers in Article V, Section 17.

Finally, Ayala contends that Scott's moves violate functional separation of powers. Drawing on Florida's strict separation clause ("No person belonging to one branch of government shall exercise any powers appertaining to either of the other branches unless expressly provided herein."), Ayala says that Scott's executive orders infringe on her role as a quasi-judicial officer and on the state judiciary itself:

Here, Scott has purported to remove Ayala entirely from the cases that his orders apply to. So under the Governor's orders, not only would Ayala not decide whether to seek the death penalty here, she also would not participate in other crucial aspects of the case, including ensuring compliance with Brady v. Maryland, safeguarding a fair trial, and considering the interests of the victims and the public. Those latter functions are precisely those that an independent judiciary protects and that the executive may not meddle in.

Ayala simultaneously filed a federal lawsuit, arguing that Scott's moves violate equal protect and due process. But she moved to stay federal proceedings pending the outcome of her state claims.

April 12, 2017 in News, Separation of Powers, State Constitutional Law | Permalink | Comments (0)

Did David Souter Kill the Filibuster?

Check out Ross Douthat's piece in the NYT.

April 12, 2017 in News | Permalink | Comments (0)

Monday, April 10, 2017

Justice Gorsuch

The Honorable Neil M. Gorsuch was sworn in this morning by Chief Justice John G. Roberts, Jr., in a private ceremony in the Justices' Conference Room at the Supreme Court. Later, Justice Kennedy administered the Judicial Oath at a public ceremony at the White House. Here's the Court's brief press release. Justice Gorsuch's bio is on the Court's site.

Photo: Franz Jantzen, Collection of the Supreme Court of the United States

April 10, 2017 in News | Permalink | Comments (0)

Friday, April 7, 2017

Did Trump Have Authority to Launch Strikes in Syria?

Charlie Savage provides a good starting point for the legal analysis at the NYT; Amber Phillips looks a little more at the politics at WaPo; Conor Friedersdorf has a little of both at The Atlantic.

For a deeper dive into the constitutional law, check out these:

Jack Goldsmith, at Lawfare

John Bellinger, same

Ashley Deeks, same

Andrew Kent, same

Marty Lederman, at Just Security

Harold Koh, same

Marty Lederman (responding to Koh), same

Ryan Goodman, same

Julian Ku, Opinio Juris

Deborah Pearlstein, same

Edward Swaine, same

Julian Ku (again), same

Ilya Somin, Volokh Conspiracy

Here are links to the cited OLC memos:

Libya (2011)

Kosovo (2000)

Haiti (1994)

For a broader, historical approach, check out this CRS report on Congressional Authority to Limit U.S. Military Operations.

April 7, 2017 in Congressional Authority, Executive Authority, News, Separation of Powers | Permalink | Comments (1)

Wednesday, April 5, 2017

Third Circuit Rules for Officials in Retaliatory Speech and Petition Case

The Third Circuit granted qualified immunity to local government officers against plaintiffs' First Amendment claims that the officers retaliated against them for exercising their speech and petition rights and directly violated their right to petition the government.

The ruling most likely ends this case.

The case arose when the Mirabellas, husband and wife who happen to be attorneys, got into a dispute with their neighbors over the neighbor's use of protected wetlands. The Mirabellas sought local government assistance in the dispute, but government officials sided with the neighbors. The Mirabellas then threatened to sue the neighbors and join the local government. So local government officials wrote to the Mirabellas that they were barred from communicating with the government or government officials (except the township attorney), and that government counsel should seek sanctions against the Mirabellas if they sued.

The Mirabellas did sue--but on First Amendment grounds, and not the underlying land-use dispute. They alleged that government officials retaliated against them for communicating with the government and directly violated their right to petition the government.

The Third Circuit ruled that the officials enjoyed qualified immunity and dismissed both claims. The court ruled that the officials did, in fact, retaliate against the Mirabellas for exercising their free speech and petition rights (based on the no-contact communication, but not on the communication threatening sanctions), but that the law wasn't clearly established at the time. In particular, the court said that "the right to be free from a retaliatory restriction on communication with one's government, when the plaintiff has threatened or engaged in litigation against the government" wasn't clearly established at the time.

The court similarly ruled that the officials violated the plaintiffs' right to petition the government, but that that right wasn't clearly established, either. The court said that "the right to be free from a restriction on communicating with one's government, when the plaintiff has threatened or engaged in litigation against the government" wasn't clearly established.

In defining the rights in this very specific way for purposes of the clearly-established prong of the qualified immunity test, the court said that Ashcroft v. al-Kidd prohibited it from "defin[ing] clearly established law at a high level of generality."

The court said that it wanted to address both prongs of the qualified immunity test--actual constitutional violation and clearly established--in order to provide some guidance on the actual contours of the rights at issue. (The court could have ruled the same way by addressing the clearly-established prong only, and punting on the actual constitutional violation prong.)

April 5, 2017 in Cases and Case Materials, First Amendment, News, Speech | Permalink | Comments (0)

Friday, March 31, 2017

D.C. Circuit Rejects Media Claim to Guantanamo Force-Feeding Tapes

The D.C. Circuit ruled today in the long-running Dhiab case that media intervenors had no First Amendment right to access redacted and videotapes classified as "secret" of force-feedings at Guantanamo Bay. The ruling overturns the district court order releasing the tapes after government redaction and ensures that the tapes won't be released (at least unless the full D.C. Circuit or Supreme Court reverses). We last posted on the case here.

The court rejected the internors' First Amendment claim under Press-Enterprise Co. v. Superior Court. The court distinguished that case, holding that it dealt with sealed testimony and exhibits in a murder case (not classified national security information, as here) and that it was a criminal prosecution (and not a habeas corpus case, as here). As to the former difference, the court noted that national security information is traditionally well protected, citing the State Secrets Privilege from Reynolds and Totten, the closed hearings in Guantanamo habeas cases, and the classified-material exception in FOIA. As to the latter difference, the court reviewed the history and concluded that "[i]n habeas corpus cases, there is no tradition of public access comparable to that recounted in Press-Enterprise II with respect to criminal trials."

The court went on to say that even if the intervenors had a First Amendment right of access to the tapes, the government's interests in protecting national security justified withholding them. In particular, the court said that the government provided sufficient evidence that the tapes could threaten security at Guantanamo Bay, incite violence against American troops abroad, and serve as propaganda to recruit fighters.

March 31, 2017 in Cases and Case Materials, First Amendment, News, Speech | Permalink | Comments (0)

Seattle Sues Over Sanctuary Cities EO

Seattle sued the Trump Administration this week over President Trump's "sanctuary cities" executive order. Seattle's move follows San Francisco's earlier suit and AG Sessions's speech this week on how he intends to enforce the EO.

We posted earlier on the EO here, on San Francisco's suit here, and on Section 1373's constitutionality here.

Like San Francisco, Seattle alleges that it's already complying with Section 1373 (because that section doesn't "impose an affirmative obligation to collect the citizenship and immigration data of its residents, or to provide such data to federal officials"), and that Section 1373 is unconstitutional if it requires anything more.

As to the constitutionality of Section 1373, Seattle contends that it violates the anti-commandeering principle in violation of Printz, that it turns pressure into compulsion in violation of NFIB, and that it contains only vague conditions on federal spending, unrelated to the underlying federal program.

Seattle's suit assumes that the EO threatens all federal funding for failure to comply with Section 1373--an assumption that seems supported by the plain language of the EO. AG Sessions's speech this week did very little (if anything) to qualify that assumption and to clarify the EO's reach.

March 31, 2017 in Cases and Case Materials, Federalism, News, Tenth Amendment | Permalink | Comments (0)

Wednesday, March 29, 2017

Tenth Circuit Upholds Prairie-Dog Protection Under Endangered Species Act Against Commerce Clause Challenge

The Tenth Circuit today rebuffed a challenge to the Endangered Species Act and ruled that Congress had authority to enact the Act under the Commerce Clause. The ruling in PETPO v. FWS upholds the Fish and Wildlife Service's regulation protecting Utah prairie dogs.

The ruling deals a(nother) blow to challengers of ESA regs that protect purely intra-state species and reaffirms federal authority to protect those species under the Commerce Clause. (Because the court held that the prairie-dog reg was authorized under the Commerce Clause, it did not separately address whether it's authorized under the Necessary and Proper Clause.)

We might keep an eye on this case and any others like it. If Judge Gorsuch is confirmed, he could tilt the balance on the Court against ESA regs--and in favor of yet more restrictions on congressional authority under the Commerce Clause. (Remember that Justice Scalia concurred in Gonzales v. Raich, the basis for the Tenth Circuit's ruling. Judge Gorsuch might not agree, or might see this case through the Lopez- and Morrison-lenses of the plaintiffs. Judge Gorsuch was not on the Tenth Circuit panel in this case.)

The court applied the test from Gonzales v. Raich, which upheld the federal prohibition on home-grown marijuana for medical use because it was part of a larger regulatory scheme (the federal Controlled Substances Act), which itself was authorized under the Commerce Clause. At the same time, the court specifically rejected PETPO's argument that it should consider the prairie-dog regulation only in isolation (like the Gun-Free School Zones Act in U.S. v. Lopez or the individual cause of action in United States v. Morrison)--not as part of the larger ESA scheme. By analyzing the reg under Raich (and not under the provision-specific approach in Lopez and Morrison), the court aligned with other circuits that have ruled on the question.

The court summarized its test:

In short, the Commerce Clause authorizes regulation of noncommercial, purely intrastate activity that is an essential part of a broader regulatory scheme that, as a whole, substantially affects interstate commerce (i.e., has a substantial relation to interstate commerce). Therefore, to uphold the challenged regulation here, we need only conclude that Congress had a rational basis to believe that such a regulation constituted an essential part of a comprehensive regulatory scheme that, in the aggregate, substantially affects interstate commerce.

The court rejected PETPO's contention that it shouldn't apply Raich, because PETPO lodged a facial challenge to the specific prairie-dog provision under Lopez and Morrison, and not "an application to a particular subset of activity, as in Raich." The court said,

the real crux of PETPO's challenge is not a challenge to any particular FWS regulation but to Congress's power to authorize regulation of the Utah prairie dog. Although PETPO is, in a sense, correct that the prohibition on take of the Utah prarie dog is "a particular challenged provision," this prohibition finds its place within the broader regulatory scheme of the ESA's protections of endangered and threatened species. More specifically, the prohibition at issue is an instance of Congress's broad authorization to use regulations to extend the take protections that endangered species enjoy to those listed as threatened.

The court said that "the Court in both Lopez and Raich looked past the larger enactment and characterized the Gun-Free School Zones Act as an independent statute."

The court also rejected PETPO's argument that the ESA "is a comprehensive scheme to provide for environmental conservation, not [to] regulate a market." The court said that this was based on too cramped a reading of Raich, which, the court said, doesn't require a "comprehensive economic scheme." Instead, Raich only required a "comprehensive regulatory scheme" that has a "substantial relation to commerce." The court said that the ESA prohibitions easily meet this standard, based on their plain economic effects (some of which PETPO itself raised as the harms that formed the basis of its suit).

The court went on to hold that Congress had a rational basis for thinking that the prairie-dog-protection reg constituted an essential part of the ESA, a comprehensive regulatory scheme, that, "in the aggregate, substantially affects interstate commerce."

 

March 29, 2017 in Cases and Case Materials, Commerce Clause, Congressional Authority, News | Permalink | Comments (0)

Thursday, March 23, 2017

Fifth Circuit Says Medical Reimbursement Preemption Claim Can Move Forward

The Fifth Circuit ruled this week that a medical air-evacuation company has standing and that it sufficiently alleged that state defendants had "some connection" to the enforcement of state law against it to allow the company's preemption suit, including a request for injunctive relief, to move forward. The ruling remands the case to the district court for proceedings on the merits.

The case involves Texas's workers'-compensation scheme, which caps reimbursement to Air Evac's medi-vac air ambulances from an insurance company. Under the Texas Workers' Compensation Act, the Texas Workers' Compensation Commission sets reimbursements rates for insurers to pay health-care providers directly. The Act also prohibits health-care providers from billing a patient for any amount in excess of the set rate. The upshot is that "the initial bill goes to the insurer rather than the patient," at a set rate, here 125% of the Medicare rate for the same service.

Air Evac, along with other, similar health-care providers, challenged the rate through the state administrative-dispute system, arguing that it was preempted by the federal Airline Deregulation Act. They lost, and the lead plaintiff, PHI, appealed.

While the appeal was pending, Air Evac filed this case in federal court, seeking a declaration that the ADA preempted the TWCA and an injunction against TWCA enforcement (under Ex Parte Young). But the district court dismissed the case for lack of subject-matter jurisdiction, because the state defendants weren't charged with enforcing the maximum-reimbursement scheme against Air Evac (because the rate "constraints the amount insurers can pay, rather than the amount air-ambulance companies can charge"), and because Air Evac "failed to show an enforcement proceeding concerning the balance-billing prohibition is imminent, threatened, or even intended."

The Fifth Circuit reversed. The court ruled that Air Evac had standing, because the maximum rate actually constrained the amount that Air Evac could receive, even though it operated directly on the third-party insurer (and not Air Evac). The court held that there was federal question jurisdiction, because Air Evac pleaded that the federal ADA preempted the TWCA. And the court ruled that the state defendants had "some connection" to enforcement of the maximum rate against Air Evac, again because the maximum rate actually constrained Air Evac's reimbursement, even if it operated on the insurer. The court declined to abstain while PHI's state appeal was pending, because the parties and claims were different.

The ruling sends the case back to the district court for proceedings on the merits, the preemption claim.

 

March 23, 2017 in Cases and Case Materials, Federalism, Jurisdiction of Federal Courts, News, Opinion Analysis, Preemption | Permalink | Comments (0)

Monday, March 20, 2017

Fourth Circuit: No First Amendment Protection for Fire Battallion Chief's Disruptive Facebook Posts

The Fourth Circuit today dismissed a fire department battalion chief's First Amendment retaliation claim for his Facebook activity in violation of the Department's Social Media and Code of Conduct policies. The court also dismissed his facial challenge against the policies as moot.

The case arose when Howard County (Maryland) Fire and Rescue Services Battalion Chief Kevin Patrick Buker posted a series of statements and "likes" on his Facebook page. On January 20, 2013, Buker posted this while on duty (sics omitted):

My aide had an outstanding idea . . lets all kill someone with a liberal . . . then maybe we can get them outlawed too! Think of the satisfaction of beating a liberal to death with another liberal . . . its almost poetic . . .

He then "liked" a colleague's post that added ugly racial comments to this.

The assistant chief directed Buker to remove the posts pursuant to the Department's Social Media Policy. That Policy, relatively new at the time, prohibited employees from posting anything that "might reasonably be interpreted as discriminatory, harassing, defamatory, racially or ethnically derogatory, or sexually violent when such statements, opinions or information, may place the Department in disrepute or negatively impact the ability of the Department in carrying out its mission."

Buker removed the posts, but then posted comments criticizing the Social Media Policy and the "liberals" who were behind it. The Department moved Buker out of field operations and into an administrative assignment and began an investigation.

About three weeks later, another colleague posted to his own Facebook page a picture of an elderly woman with her middle finger raised, with a caption saying that he'll post whatever he wants, and a note stating, "for you Chief." Buker "liked" it.

Shortly after that, Buker was fired for violating the Social Media Policy and the Code of Conduct. (The Code of Conduct banned "conduct unbecoming," that is, "any conduct that reflects poorly on an individual member, the Department, or County government, or that is detrimental to the public trust in the Department or that impairs the operation and efficiency of the Department.")

Buker sued, arguing that the Department fired him in retaliation for his speech, and that the Social Media Policy and Code of Conduct Policy were facially unconstitutional. The Fourth Circuit disagreed.

Applying Pickering, the court held that two of Buker's posts (the one about assaulting liberals, and the one criticizing the Social Media Policy) addressed matters of public concern. (The court assumed, without deciding, that Buker's Facebook activity constituted a "single expression of speech.") But the court said that the Department's interest in efficiency and preventing disruption outweighed Buker's interests:

  • Buker's Facebook activity "interfered with an impaired Department operations and discipline as well as working relationships within the Department.
  • The posts "significantly conflicted with [his] responsibilities as battalion chief," including "acting as an impartial decisionmaker and 'enforcing Departmental policies and taking appropriate action for violations of those policies.'"
  • Buker's "speech frustrated the Department's public safety mission and threatened 'community trust' in the Department, which is 'vitally important' to its function."
  • Buker's activity "expressly disrespect[ed] [his] superiors" after he had been reprimanded.
  • The posts "disregarded and upset the chain of command."

The court dismissed Buker's facial challenge to the Social Media Guidelines and Code of Conduct as moot. The court said that although the Department changed the policies to eliminate the earlier version's prohibitions on the private use of social media, the Chief and defendants' counsel both promised the court that the Department wouldn't re-implement the old guidelines (so as to make this a "voluntary cessation" case).

 

 

March 20, 2017 in Cases and Case Materials, First Amendment, News, Opinion Analysis, Speech | Permalink | Comments (0)

Friday, March 17, 2017

Is Section 1373 Unconstitutional?

President Trump's EO on sanctuary cities says that "the Attorney General and the Secretary . . . shall ensure that jurisdictions that willfully refuse to comply with 8 U.S.C. Sec. 1373 (sanctuary jurisdiction) are not eligible to receive Federal grants, except as deemed necessary for law enforcement purposes by the Attorney General or the Secretary."

The provision is almost certainly over-broad, in that it conditions apparently all "Federal grants" on compliance with Section 1373, running afoul of both the relatedness prong and the pressure-into-compulsion test for conditioned federal spending.

But is 1373 itself unconstitutional? In particular, does 1373 violate the non-commandeering principle?

Section 1373 reads:

(a) Notwithstanding any other provision of Federal, State, or local law, a Federal, State, or local government entity or official may not prohibit, or in any way restrict, any government entity or official from sending to, or receiving from, the Immigration and Naturalization Service information regarding the citizenship or immigration status, lawful or unlawful, of any individual.

(b) Notwithstanding any other provision of Federal, State, or local law, no person or agency may prohibit, or in any way restrict, a Federal, State, or local government entity from doing any of the following with respect to information regarding the immigration status, lawful or unlawful, or any individual:

(1) Sending such information to, or requesting or receiving such information from, the Immigration and Naturalization Service.

(2) Maintaining such information.

(3) Exchanging such information with any other Federal, State, or local government entity.

(c) The Immigration and Naturalization Service shall respond to an inquiry by a Federal, State, or local government agency, seeking to verify or ascertain the citizenship or immigration status of any individual within the jurisdiction of the agency for any purpose authorized by law, by providing the requested verification or status information.

The provision--which prohibits action (it prohibits prohibitions) by state and local governments, but doesn't require action--is a pretty transparent attempt to try to work around the anti-commandeering principle. (Doing the same thing directly--by requiring state and local officers to report--would obviously violate the anti-commandeering principle.) Does that save it from commandeering?

Jane Chong, in a thoughtful post over at Lawfare, says maybe--or at least "the answer is not as open-and-shut as the experts insist it is."

If she's right--and she makes a good argument--maybe the problem isn't with transparent work-arounds like 1373. Maybe, instead, the problem is with the anti-commandeering principle itself. In light of 1373 (and a similar provision in the Professional and Amateur Sports Protection Act of 1992, which Chong discusses), maybe "anti-commandeering" suffers from the same problem that another Tenth Amendment principle--"areas of traditional government functions"--suffered from between National League of Cities v. Usery and Garcia v. San Antonio Metropolitan Transit Authority: It's unworkable. And maybe the solution is the same as in Garcia: Abandon it, and leave the issue to the political process. (After all, there's nothing in the Tenth Amendment that says anything about commandeering.)

March 17, 2017 in Executive Authority, Federalism, News, Tenth Amendment | Permalink | Comments (1)