Thursday, July 30, 2015

Southern District Rebuffs Citizens United's Speech Claim

Judge Sidney Stein (SDNY) this week denied Citizens United's motion to preliminarily enjoin the New York Attorney General from enforcing his policy of requiring registered charities to disclose the names, addresses, and total contributions of their major donors.

The ruling, which follows a similar Ninth Circuit ruling this past spring, is a blow to the organization's efforts to keep their donors secret through the 501(c) form. But it does not mean that Citizen United's donors will be available to all of us: both the IRS and the state AG refuse to disclose the names of donors.

The case tests the AG's rule that charities registered in the state provide to the state AG their Schedule B to IRS Form 990. Schedule B includes names of persons who donate over $5,000 to a charity. Citizens United, a 501(c) organization, challenged the rule, arguing that it violated free speech, and due process, among other claims, and filed for a preliminary injunction.

Judge Stein rejected the motion, saying that Citizens United was unlikely to win on the merits. As to the free speech claim, Judge Stein wrote that the AG's rule bears a substantial relation to the sufficiently important government interest in enforcing charitable solicitation laws and protecting state residents from illegitimate charities, and that the strength of the state's interest justified the minimal burden on the organization. Judge Stein also concluded that the rule was not an unconstitutional prior restraint on speech, because the rule "sets forth 'narrow, objective, and definite standards' that cabin the Attorney General's exercise of discretion.'" Finally, Judge Stein rejected Citizens United's claim that the rule came without warning and thus violated due process, because in fact the rule did nothing new. (Judge Stein also rejected the non-constitutional claims.)

But while Judge Stein's ruling rejected Citizens United's motion to stop the state AG from enforcing the rule for now, nothing in the ruling compels the public release of the organization's major donors. Indeed, the ruling hinges on the fact that New York law and IRS regs both bar the public release of Schedule B. The ruling only allows the state AG to collect this information for the purpose of ferreting out charitable fraud and related crimes.

July 30, 2015 in Campaign Finance, Cases and Case Materials, First Amendment, News, Opinion Analysis, Speech | Permalink | Comments (0)

Friday, July 24, 2015

D.C. Circuit OKs Case Against Consumer Financial Protection Bureau

The D.C. Circuit on Friday ruled that a case challenging the constitutionality of the Consumer Financial Protection Bureau can move forward. At the same time, the court dismissed claims against Dodd-Frank's Financial Stability Oversight Council and the government's orderly liquidation authority.

The mixed ruling sends the plaintiffs' case against the CFPB and the recess appointment of Director Richard Cordray back to the district court for a ruling on the merits. We'll undoubtedly see this case back at the D.C. Circuit.

We last posted on a challenge to the CFPB here. (The D.C. Circuit dismissed that case for lack of standing.)

The State National Bank of Big Spring and a number of states brought the case, arguing four points. First, the Bank argued that the CFPB is unconstitutional, because, as an independent agency, it has to be headed by multiple members, not a single director (as it is). Moreover, the bank says that Congress's delegation to the CFPB violates the non-delegation doctrine.

Second, the Bank argues that President Obama appointed Director Cordray as a recess appointment during a three-day intra-session Senate recess, in violation of Noel Canning. (Cordray was subsequently confirmed by the Senate, but the Bank says his actions in the meantime are invalid.)

Third, the Bank claims that the Financial Stability Oversight Council, which monitors the stability of the U.S. financial system and responds to emerging threats and has statutory authority to designate certain "too big to fail" financial companies for additional regulation, violates the non-delegation doctrine and related separation-of-powers principles.

Finally, the states claim that Dodd-Frank's liquidation authority, which permits the government to liquidate failing financial companies that pose a risk to financial stability, violates the non-delegation doctrine and the Bankruptcy Clause's guarantee of uniform bankruptcy laws.

The court held that the bank, as an entity actually regulated by the CFPB, had standing. The court also said that the bank's claims were ripe, under Abbott Labs and Free Enterprise Fund (the PCAOB case).

But the court ruled that the Bank lacked standing to challenge the Council. In particular, it rejected the Bank's novel claim that the Bank was harmed because the Council designated one of the Bank's competitors as "too big to fail," thus giving the competitor a "reputational subsidy."

The court also held that the states lacked standing to challenge the government's liquidation authority. The states said that they invested pension funds in financial companies, that states are therefore creditors in possible future liquidations, that such liquidations could deprive the states of uniform treatment, and that as a result the states' current investments are worth less. The court said this was too speculative.

July 24, 2015 in Cases and Case Materials, Congressional Authority, Courts and Judging, Jurisdiction of Federal Courts, News, Nondelegation Doctrine, Ripeness, Separation of Powers, Standing | Permalink | Comments (0)

Saturday, July 18, 2015

Wisconsin Supremes End Walker Campaign Finance Investigation

The Wisconsin Supreme Court ruled this week that a special prosecutor's reading of Wisconsin's campaign finance rules in the investigation into illegal coordination between "independent" organizations and Governor Scott Walker's campaign violated the First Amendment. The ruling ends the investigation into the alleged coordination. It also opens the spigot for coordinated expenditures between outside organizations and campaigns on all but express advocacy for the election or defeat of a particular candidate.

The special prosecutor alleged that that the Walker campaign coordinated with outside organizations on issue advocacy in the recall elections related to Wisconsin Act 10, the bill that sharply curtailed public sector union rights in Wisconsin. In particular, the prosecutor alleged that the coordination was so extensive that the outside organizations became subcommittees of Walker's campaign under Wisconsin law, and that the outside organizations' coordinated issue advocacy amounted to a contribution to the Walker campaign--all in violation of Wisconsin law.

But all this turned on whether the advocacy was for "political purposes." Wisconsin law defines "political purposes" as an act

done for the purpose of influencing the election or nomination for election of any individual to state or local office, for the purpose of influencing the recall from or retention in office of an individual holding a state or local office, for the purpose of payment of expenses incurred as a result of a recount at an election, or for the purpose of influencing a particular vote at a referendum. . . .

(a) Acts which are done for "political purposes" include but are not limited to:

1. The making of a communication which expressly advocates the election, defeat, recall or retention of a clearly identified candidate or a particular vote at a referendum.

In short, the special prosecutor claimed that the coordination was for "political purposes," and therefore illegal.

The Wisconsin Supreme Court ruled that the definition of "political purposes" (and, in particular, the phrase "influencing [an] election") was unconstitutionally vague and overbroad, in that it potentially banned coordination on issue advocacy (and not just express advocacy for the election or defeat of a candidate). "The lack of clarity in [the definition], which the special prosecutor relies on, leads us to the unsettling conclusion that it is left to the government bureaucrats and/or individual prosecutors to determine how much coordination between campaign committees and independent groups is "too much" coordination." The court gave the definition a narrowing construction that limited the definition of "political purposes" to include only express advocacy for the election or defeat of a candidate (and not issue advocacy).

The opinion drew a sharp dissent, which argued that the ruling limited the state's campaign finance regulations beyond what the Supreme Court required and, in doing so, opened up a free-for-all on spending and coordination between "independent" groups and campaigns on issue advocacy.

According to the United States Court of Appeals for the Seventh Circuit, no opinion of the United States Supreme Court or a federal court of appeals has established that the First Amendment forbids regulation of, or inquiry into, coordination between a candidate's campaign committee and issue advocacy groups. In repeatedly and single-mindedly declaring a rule that federal case law has declined to adopt, the majority opinion betrays its results-oriented, agenda-driven approach.

July 18, 2015 in Campaign Finance, First Amendment, News, Opinion Analysis, Speech | Permalink | Comments (0)

Tuesday, July 14, 2015

Tenth Circuit Rejects Challenge to Contraception Mandate

The Tenth Circuit today rejected statutory and First Amendment challenges to HHS's religious accommodation to its contraception mandate under the Affordable Care Act. We most recently posted on the issue, in the Notre Dame case in the Seventh Circuit, here.

The plaintiffs in the case--Little Sisters of the Poor, Southern Nazarene, and Reaching Souls--argued that the HHS requirement that they notify their health insurance providers, third party insurers, or HHS (with a simple letter) in order to get out from under the contraception mandate violated the Religious Freedom Restoration Act, free exercise and establishment of religion, and free speech.

The Tenth Circuit rejected the claims. In a lengthy opinion that comes with its own glossary and table of contents, the court ruled that it wasn't the plaintiffs' accommodation (the notification of their objection) that triggered the provision of contraceptions; it was the law. (Judge Posner arrived at the same conclusion with more colorful language in the Notre Dame case.) Given this, there was no substantial burden on religion under RFRA. Moreover, the court said that the accommodation met rational basis review under the Free Exercise Clause, that it didn't discriminate between religions and religious organizations in violation of the Establishment Clause, and that the accommodation didn't amount to compelled speech under the First Amendment.

July 14, 2015 in Cases and Case Materials, Establishment Clause, First Amendment, Free Exercise Clause, News, Opinion Analysis, Religion | Permalink | Comments (0)

Thursday, July 9, 2015

No Remedy for Torture Victims, Court Reaffirms

Judge Ellen Segal Huvelle (D.D.C.) yesterday reaffirmed that torture victims lack a remedy in the federal courts. Judge Huvelle applied circuit precedent and granted the government's motion to dismiss Mohammed Jawad's torture claims against government officials. The ruling ends Jawad's case, unless and until he appeals.

The case is not surprising, given the state of the law, but it is disturbing: it reaffirms (yet again) that torture victims lack a judicial remedy.

Jawad claimed that government officials authorized his torture at Guantanamo Bay, before and after designating him an "enemy combatant" and before releasing him as no longer "legally detainable" after over six years in detention. Jawad claimed that officials violated the Alien Tort Claims Act, the Federal Tort Claims Act, the Torture Victims Protection Act, and the Fifth and Eighth Amendment.

Judge Huvelle rejected all these claims. Judge Huvelle denied Jawad's FTCA claims, because she said that government officials were acting within the scope of their employment--torture, evidently, is within the scope of employment to maintain order and discipline at Guantanamo--and because the government's waiver of immunity under the FTCA doesn't apply outside the United States. Judge Huvelle denied the TVPA claim, because U.S. officials weren't acting under the law of a foreign nation, as required by the TVPA. And she denied Jawad's constitutional claims, because she said that special factors counseled against extending a Bivens remedy.

Judge Huvelle also ruled that Jawad's claims are foreclosed by the Military Commissions Act, which bars non-habeas claims against the government or its agents related to "conditions of confinement of an alien . . . who was properly detained as an enemy combatant . . . ." Judge Huvelle said that the government never disavowed its classification of Jawad as an enemy combatant, even though the government later said that he was no longer legally detainable.

The ruling is hardly a surprise, given circuit precedent and the state of the law. But it is disturbing: It says (yet again) that torture victims don't have a judicial remedy.

July 9, 2015 in Cases and Case Materials, Courts and Judging, Jurisdiction of Federal Courts, News, Opinion Analysis, War Powers | Permalink | Comments (2)

Tuesday, July 7, 2015

D.C. Circuit Upholds Ban on Contractor Political Contributions

The full D.C. Circuit today upheld the federal ban on government contractor political contributions to candidates and parties. The ruling is a significant victory for campaign finance regulation, and rebuffs a direct challenge to the core of the Court's First Amendment rule on political contributions. At the same time, the case also sets up a challenge to that core for potential Supreme Court review. (We posted previously on the case here.)

The case, Wagner v. FEC, involves a narrow issue: whether the federal ban on contributions to a candidate or a political party by an individual federal contractor violates the First Amendment. The en banc D.C. Circuit unanimously said no. The court applied the familiar "lesser but still 'rigorous standard of review'" that governs restrictions on contributions, and held that the government's interests in (1) avoiding corruption and the appearance of corruption and (2) protection against interference with merit-based public administration supported the ban. The court also ruled that the ban was sufficiently well tailored, and neither unconstitutionally over-inclusive nor under-inclusive, with respect to the two government interests.

The court's lengthy opinion detailed the history of pay-to-play, government responses to the problem of contractor corruption, and current problems with corruption. The self-consciously thorough ruling appears written to insulate it as much as possible from reversal at the Supreme Court and thus underscores the importance of the case.

The plaintiffs framed the case narrowly to directly take on the current lower-level test for political contributions (as opposed to independent political expenditures), and set up a test case to overturn that portion of Buckley v. Valeo that says that government must justify restrictions on contributions at only a lower level of scrutiny under the First Amendment. While today's ruling rebuffed that effort, this is almost surely just a bump in the road for the plaintiffs on the way to the Supreme Court--and their effort to get the Court itself to disavow the lower level of scrutiny (and apply strict scrutiny to contractor contributions), or at least rule that the government's ban on contractor contributions is too sloppy to withstand a lower level of review. Either way, if the Court bites, this could represent a serious challenge to government regulation of political contributions.

July 7, 2015 in Campaign Finance, Cases and Case Materials, First Amendment, News, Opinion Analysis | Permalink | Comments (0)

Monday, July 6, 2015

Judge Posner Explains Why Contraception Mandate Accommodation Doesn't Violate RFRA (Again)

Judge Posner explained (yet again) last week why HHS's contraception mandate under the Affordable Care Act doesn't violate religious freedom, in particular, the Religious Freedom Restoration Act. His previous explanation in the Notre Dame case is perhaps the best statement why the accommodation to the mandate doesn't violate religious freedom; his ruling in the continuing, and up-and-down, Wheaton College case is next best.

Wheaton College, a nondenominational evangelical college in Wheaton, Illinois, challenged HHS's accommodation to its requirement that colleges provide contraception as part of their health-insurance policies. Wheaton College doesn't object to all the contraception required under the mandate, only those that it considers abortifacients.Still, the College apparently wasn't satisfied with the Supreme Court's instruction to simply inform the government of its objections (at which point the government would tell the insurers to provide the contraception to Wheaton students and employees free of charge, reimbursed by the government)--a religious accommodation. The College argued that this accommodation itself meant that the government would take over its insurance plan, interfere with its contractual relationship with its insurer, and force it to be complicit in its insurer's provision of contraception. The College sought a preliminary injunction. But the Seventh Circuit rejected the motion.

Judge Posner explained why the accommodation (the requirement to tell the government of its religious objections to contraception) didn't violate RFRA:

Wheaton's antipathy is to having any contractual relations with insurers who provide emergency contraception to members of the Wheaton College community. Because they are "its" insurers, someone not in the know might think it "complicit" in the insurers' provision of a type of coverage that offends Wheaton's religious views. But where's the complicity?

***

In any event, termination of the [insurance] contracts would give Wheaton only temporary relief, since the government would notify any new insurers hired by Wheaton of their legal obligation to provide emergency-contraceptive coverage.

In short: It's the government, not Wheaton College, that mandates contraception coverage; and the accommodation only requires Wheaton to inform the government of its objection. How can you get an accommodation if you can't inform the government of your objection?

July 6, 2015 in Cases and Case Materials, Free Exercise Clause, News, Opinion Analysis, Religion | Permalink | Comments (0)

Rule of Law Rankings Put U.S. at 19

The World Justice Institute recently issued its Rule of Law Index for 2015. We posted on last year's Index here.

The Index ranks 102 countries on various measures related to rule of law, around these four "universal principles":

1.    The government and its officials and agents as well as individuals and private entities are accountable under the law.

2.    The laws are clear, publicized, stable, and just; are applied evenly; and protect fundamental rights, including the security of persons and property.

3.    The process by which the laws are enacted, administered, and enforced is accessible, fair, and efficient.

4.    Justice is delivered timely by competent, ethical, and independent representatives and neutrals who are of sufficient number, have adequate resources, and reflect the makeup of the communities they serve.

The U.S. ranked 19 overall (out of 102), 19 out of 31 in our income class, and 13 out of 24 in the Americas. Low points include "no discrimination" in the criminal justice system and accessibility and affordability in the civil justice system. High points include lack of corruption and effective checks on the judiciary.

July 6, 2015 in Courts and Judging, News | Permalink | Comments (0)

Thursday, July 2, 2015

Obergefell, Federalism, and Religion: Constitutional Issues Raised in Alabama and Texas

After the United States Supreme Court's opinion in Obergefell v. Hodges on June 26 declaring that states are required by the Fourteenth Amendment to issue same-sex marriage licenses, a few state officials have not only voiced objections to the decision, but have voiced resistance to complying with the Court's declaration. 

The situations in Alabama and Texas have been the most contentious.

Alabamatexas
 

ALABAMA:     Recall that earlier this year when federal District Judge Callie V.S. Granade entered an injunction against the enforcement of the state's constitutional amendment and statutes banning same-sex marriage, the reaction of  Alabama Supreme Court's controversial Chief Judge Roy Moore was an unusual letter to the Governor objecting to the federal judge's opinion on the basis that federal courts have no power in this Biblical area.  This was followed by an opinion of the Alabama Supreme Court ordering judges not to issue same-sex marriage licenses. The Eleventh Circuit, and then the United States Supreme Court denied a stay of the district judge's opinion.

When the Court took certiorari in Obergefell, however, Judge Granade stayed her order.

However, after the Court decided Obergefell, the Alabama Supreme Court's  "corrected order" stated that because the US Supreme Court rules allow parties 25 days to file a petition for rehearing, the parties in the case - - - including two conservative Alabama organizations - - - were invited to submit briefs on the effect of Obergefell.  Federal District Judge Callie Granade issued a one-page Order on July 1, referenced her earlier stay and then stated:

The United States Supreme Court issued its ruling on June 26, 2015. Obergefell v. Hodges, 576 U.S. ____ (2015). Accordingly, by the language set forth in the [previous] order, the preliminary injunction is now in effect and binding on all members of the Defendant Class.

Thus, the officials of Alabama are subject to a direct order by a federal judge.

 TEXAS:   The Attorney General of Texas, Ken Paxton, who is reportedly facing criminal charges on unrelated matters, issued a six page opinion letter a few days after Obergefell which stressed the individual religious rights of county clerks and their employees, as well as justices of the peace and clergy, regarding their participation in same-sex marriages.  Paxton's opinion was widely reported and concluded that county clerks retain religious freedoms that "may allow" accommodations depending "on the particular facts of each case."  Paxton relied on the First Amendment as well as Texas's Religious Freedom Restoration Act (RFRA), essentially similar to the federal RFRA at issue in the Court's decision in Hobby Lobby. This is not unique:  the possibility of claims by individual public employees in clerk's offices was also raised after New York passed its Marriage Equality Act in 2011 and as that act made clear - - - as is generally understood - - - that religious officers have complete discretion in agreeing or refusing to solemnize marriages. 

The Fifth Circuit issued a very brief opinion on July 1, noting that "both sides now agree" that the  the injunction appealed from, originally issued in early 2014 by federal district judge Orlando Garcia in DeLeon v. Perry [now Abbott],  "is correct in light of Obergefell," the Fifth Circuit ruled that the preliminary injunction is affirmed. 

The Fifth Circuit's opinion makes clear - - - seemingly with state agreement - - - that Texas is bound by Obergefell, but does not mention individual religious accommodations. 

In both the Alabama and Texas situations, there are echoes of resistance to the Supreme Court's opinion in Brown v. Board of Education; The Supremacy Clause and the Court's opinion in Cooper v. Aaron seem to answer the question of whether state officials simply may disagree with the Court's interpretation of the Constitution.  This is true despite the dissenting opinions in Obergefell itself which argued that the Court should leave the resolution of same-sex marriage to individual states.  The question of religious accommodations may be a closer one, but what seems clear is that if there is indeed an individual right to be accommodated - - - again, that itself is unclear - - - it cannot be a right of a government entity.  While Hobby Lobby may have held that corporations have religious freedoms, it is hard to conceive of government entities having free exercise rights in a manner that does not violate the Establishment Clause.

July 2, 2015 in Cases and Case Materials, Courts and Judging, Current Affairs, Equal Protection, Family, Federalism, First Amendment, Fourteenth Amendment, Free Exercise Clause, Fundamental Rights, News, Recent Cases, Reconstruction Era Amendments, Religion, Sexual Orientation, Supreme Court (US) | Permalink | Comments (0)

Tuesday, June 30, 2015

Court Puts Union Fair Share on the Chopping Block

The Supreme Court today agreed to hear Friedrichs v. Cal. Teachers Association, and certified the first question as "Should Abood be overruled?" The case is just the latest foray into the First Amendment challenges to union fair share dues requirements. The Court has been chipping away at this in its last few rulings. This case will likely mean the end of union fair share requirements under the First Amendment.

We've posted a lot on this issue (search the blog for "Abood"), most recently here.

June 30, 2015 in Cases and Case Materials, First Amendment, News | Permalink | Comments (0)

Monday, June 29, 2015

Court Hands Victory to the People in Redistricting

The Supreme Court ruled in Arizona State Legislature v. Arizona Independent Redistricting Commission that federal law and the Elections Clause permit the people of Arizona to create, by referendum, an independent redistricting commission and vest it with authority to redraw congressional districts.

Arizona voters designed the Commission to take redistricting authority away from the state legislature and put it in the hands of an independent authority. In validating the Commission, the Court handed a significant victory to the voters--the People themselves--as against the state legislature and its partisan gerrymandering. The ruling means that Arizona's independent commission stays in place and can continue its work redrawing congressional districts.

Here's our oral argument review.

The key dispute between the majority and dissent is how to cast the exercise of redistricting power through referendum: the majority says that the people themselves hold government power, and therefore hold "legislative" power under the Elections Clause to create an independent redistricting commission; the dissent says that only the legislature holds redistricting power under the Elections Clause.

Justice Ginsburg wrote for the Court, joined by Justices Kennedy, Breyer, Sotomayor, and Kagan. She wrote that 2 U.S.C. Sec. 2a(c)--which provides that "[u]ntil a State is redistricted in the manner provided by the law thereof after any apportionment," it must follow federally prescribed redistricting procedures--permits redistricting by an independent commission created by voter referendum. She also wrote that the Elections Clause permits this. "The history and purpose of the Clause weigh heavily against [preclusion of the right of the people to create an independent redistricting commission], as does the animating principle of our Constitution that the people themselves are the originating source of all the powers of government."

Chief Justice Roberts wrote the principal dissent, joined by Justices Scalia, Thomas, and Alito. He wrote that the text, structure, and history of the Elections Clause say that only "the legislature" can prescribe "The Times, Places and Manner of holding Elections for Senators and Representatives."

Justices Scalia and Thomas each wrote their own dissents, each joined by the other.

June 29, 2015 in Cases and Case Materials, Elections and Voting, Federalism, News, Opinion Analysis | Permalink | Comments (1)

Court Rejects Challenge to OK Lethal Injection

The Supreme Court in Glossip v. Gross rejected an Eighth Amendment challenge to Oklahoma's three-drug lethal injection cocktail. The ruling deals a blow to opponents of the death penalty and leaves in place a protocol that's resulted in a spate of gruesome and botched executions. It also means that the plaintiffs' executions will move forward under Oklahoma's protocol.

The case was important, because victory for the challengers would have left states with few, if any, viable and sustainable options for administering lethal injection--and may have marked the de facto beginning of the end of the death penalty. (That's why some states have explored other methods of execution recently.) But there was no victory for the challengers, so the ruling allows states to move forward with a popular, but deeply flawed, cocktail.

If the past is any indicator, opponents of the death penalty will now work outside the courts to get suppliers of Oklahoma's new drug to stop providing it to states that use it for lethal injections--the same strategy they used to force Oklahoma to turn to a new protocol in the first place. And if the past is any indicator, they'll be successful, which might, in turn, lead to the next protocol and the next challenge.

We posted on the oral arguments here.

Challengers argued that Oklahoma's use of the sedative midazolam as the first drug did not reliably induce and maintain a deep, coma-like unconsciousness that would render a person insensate to the excruciating pain caused by the second and third drugs (which paralyze and cause cardiac arrest, respectively). Oklahoma turned to midazolam after suppliers for the state's previous first drugs dried up.

Justice Alito wrote for the Court, joined by Chief Justice Roberts and Justices Scalia, Kennedy, and Thomas. Justice Alito wrote that the challengers didn't show that the state's use of midazolam created a demonstrated risk of severe pain, substantial compared to alternatives, and that they didn't identify a viable alternative. Justice Alito credited the district court's factual findings as to midazolam's ability to stop pain, and wrote that the district court didn't clearly err in finding that alternative drugs (the state's old drugs) were unavailable.

Justice Sotomayor wrote the principal dissent, joined by Justices Ginsburg, Breyer, and Kagan. She argued that the district court erred in crediting the state's expert and in putting the burden on the challengers to identify a viable alternative to the state's use of midazolam.

Justice Breyer dissented, joined by Justice Ginsburg, and argued that the Court should entirely reevaluate the constitutionality of the death penalty. Justices Scalia and Thomas each wrote concurrences addressing Justice Breyer's points.

June 29, 2015 in Cases and Case Materials, Fourteenth Amendment, Fundamental Rights, News, Opinion Analysis | Permalink | Comments (1)

Thursday, June 25, 2015

Court Rebuffs Attack on Obamacare Subsidies

The Supreme Court ruled today that the Affordable Care Act means exactly what Congress thought it meant in the first place: everybody should get--and be able to get--health insurance.

The Court ruled in King v. Burwell that the ACA authorizes federal tax subsidies for qualified purchasers of health insurance on federally-subsidized exchanges. The ruling means that qualified purchasers will continue to receive federal tax subsidies for their health insurance, that they won't go without insurance (at least not for a lack of subsidies), and that Obamacare remains intact.

Opponents attacked the subsidies, arguing that the ACA authorized subsidies only for purchasers on state exchanges, not federally-facilitated exchanges, and that the IRS had to stop extending subsidies to purchasers on federally-facilitated exchanges. Their argument turned on a single phrase in the Act, that subsidies extend to "an Exchange established by the State," despite the overwhelming evidence that the Act, as a whole, was designed to provide universal coverage. Our oral argument preview is here.

The Court today rejected the opponents' arguments. Chief Justice Roberts wrote the majority opinion, joined by Justices Kennedy, Ginsburg, Breyer, Sotomayor, and Kagan. He wrote that the phrase "an Exchange established by the State" was ambiguous, given the way the rest of the Act hung together, and that the Court therefore should give the phrase a reading that harmonizes with the rest of the Act, including the Act's clear purpose to provide universal coverage. That reading, he wrote, meant that tax subsidies extend to purchasers on both state-created and federally-facilitated exchanges.

Chief Justice Roberts's opinion is notable for its recognition of the several key components of Obamacare (guaranteed issue, community rating, individual mandate, and tax subsidies) and how they are designed to operate together to ensure universal (or close to universal) coverage. The majority opinion also discussed in some detail how these components evolved and ended up in the ACA and the health-care and health-insurance problems they were designed to solve (including the death spiral).

But Chief Justice Roberts also took the opportunity make a dig on process--how the legislative road to the ACA was hurried and lacked transparency.

Justice Scalia wrote the dissent, joined by Justices Thomas and Alito. The dissent was predictably colorful, but comes down to this:

The Court holds that when the Patient Protection and Affordable Care Act says "Exchange established by the State" it means "Exchange established by the State or the Federal Government." This is of course quite absurd, and the Court's 21 pages of explanation make it no less so.

June 25, 2015 in Cases and Case Materials, Congressional Authority, Executive Authority, News, Opinion Analysis, Separation of Powers | Permalink | Comments (1)

Monday, June 22, 2015

Court Strikes Warrantless Hotel Registry Searches

The Supreme Court today struck a Los Angeles city ordinance that required hotels to make available their guest records "to any officer of the Los Angeles Police Department for inspection . . . ." But at the same time the ruling specifically allows the city to require hotel owners to keep and retain a guest registry and says that officers can search it if they only get a warrant (even just an ex parte administrative warrant), or satisfy an established exception to the Fourth Amendment warrant requirement.

In short, the ruling in Los Angeles v. Patel only requires officers to jump through a hoop--an important hoop, to be sure, but perhaps only a minimally challenging hoop--before reviewing hotel records.

Still, the sharply divided ruling is a clear victory for Fourth Amendment enthusiasts for two reasons. For one, the ruling requires precompliance review of some sort in the ordinary case. This means that in most cases a neutral decisionmaker would review an officer's request to search the records before the search. For another the ruling underscores the fact that challengers can bring a facial case under the Fourth Amendment.

Justice Sotomayor wrote for the Court, joined by Justices Kennedy, Ginsburg, Breyer, and Kagan. Justice Sotomayor wrote that the LA ordinance violated the Fourth Amendment on its face. In particular, she said that ordinance authorized an extra-judicial administrative search (with no prior judicial approval and no probable cause requirement), and that kind of search requires the subject to "be afforded an opportunity to obtain precompliance review before a neutral decisionmaker." The Court explained why that's important:

Absent an opportunity for precompliance review, the ordinance creates an intolerable risk that searches authorized by it will exceed statutory limits, or be used as a pretext to harass hotel operators and their guests.

Although the Court recognized that it never really defined "precompliance review," the ordinance allowed no review and therefore violated the Fourth Amendment on its face. The Court said that the ordinance has to provide a hotel owner at least an opportunity for precompliance review; but because it didn't, it violated the Fourth Amendment.

The Court emphasized "the narrow  nature of our holding," saying that nothing in today's ruling prevents the city from requiring hotel owners from maintaining a guest registry with certain information, or authorizing the police to access that registry with appropriate Fourth Amendment protections, or under established Fourth Amendment exceptions.

Justice Scalia wrote the principal dissent, joined by Chief Justice Roberts and Justice Alito. Justice Scalia argued that a warrantless hotel records search was not unreasonable in every application (as required for a facial challenge), because hotels are closely regulated and therefore the government has more leeway in conducting warrantless administrative searches under New York v. Burger.

Justice Alito also dissented, joined by Justice Thomas. Justice Alito argued that the Court overreached with its facial ruling, that there are (at least) five applications of the ordinance that satisfy the Fourth Amendment, and that the Court's ruling means that LA can never enforce its "116-year-old requirement that hotels make their registers available to police officers."

June 22, 2015 in Cases and Case Materials, Fourth Amendment, Fundamental Rights, News, Opinion Analysis | Permalink | Comments (0)

Court Sets Objective Standard for Pretrial Detainee Civil Rights Action

The Supreme Court ruled today in Kingsley v. Hendrickson that a pretrial detainee need only show that an officer's use of force was objectively unreasonable--and not subjectively unreasonable, a higher standard--in order to prevail on an excessive force claim. The ruling reverses the Seventh Circuit, which affirmed a trial judge's jury instruction that set the bar at the higher subjective standard, and remands the case for an application of the lower objective standard.

The ruling means that a pretrial detainee's burden in an excessive force claim is lower than the standard upheld by the Seventh Circuit. That's good news for pretrial detainees who bring civil rights claims. But the Court was quick to say that a detainee still has other hurdles to jump--including qualified immunity.

Justice Breyer wrote for the Court, joined by Justices Kennedy, Ginsburg, Sotomayor, and Kagan. Justice Breyer wrote that the trial court's jury instruction based on a subjective standard--that "[e]xcessive force means force applied recklessly that is unreasonable in light of the facts and circumstances [and]  [d]efendants knew that using force presented a risk of harm to plaintiff, but they recklessly disregarded plaintiff's safety . . . ."--should have been been based on an objective standard--that "the force purposely or knowingly used against him was objectively unreasonable."

Justice Scalia wrote the principal dissent for himself, Chief Justice Roberts, and Justice Thomas. Justice Alito also dissented, arguing that the case should be dismissed as improvidently granted.

June 22, 2015 in Cases and Case Materials, Fourteenth Amendment, Fundamental Rights, News, Opinion Analysis | Permalink | Comments (0)

Wednesday, June 17, 2015

Second Circuit Gives Detainee Case Against Ashcroft, Mueller the Go-Ahead

The Second Circuit ruled today that a civil rights case by former alien detainees against former AG John Ashcroft, former FBI Director Robert Mueller, former INS Commissioner James Zigler, and officials at the Metropolitan Detention Center can move forward.

The ruling is not a decision on the merits, but instead says that the bulk of the plaintiffs' case against the officials is not dismissed and can proceed to discovery.

Still, the ruling is significant, to say the least. It means that officials at the highest level of the DOJ will have to answer in court for their actions that led directly to the wrongful detention and mistreatment of aliens who were mistakenly swept up in the 9/11 investigation, even though, as the court said, "they were unquestionably never involved in terrorist activity."

The case, Turkmen v. Ashcroft, over thirteen years old, challenges the defendants' moves that resulted in the detention and mistreatment of aliens in the post-9/11 investigation, even though they had nothing to do with the 9/11 attacks or terrorist activities. In particular, the plaintiffs claimed that they were detained between three and eight months, without individualized suspicion and because of their race, religion, ethnicity, or national origin, and subjected to various forms of mistreatment.

The plaintiffs alleged that the DOJ defendants took certain actions that resulted in their detention and unlawful treatment, with knowledge that the plaintiffs were wrongfully detained and mistreated. They also alleged that the MDC defendants took official actions that led to their abuse and knew about certain "unofficial abuse."

The defendants moved to dismiss for failure to state a claim, on qualified immunity grounds, and, for some claims, that Bivens did not extend a cause of action. The district court dismissed all claims against the DOJ defendants and some claims against the MDC defendants.

The Second Circuit (mostly) reversed and allowed the case to move forward. The court said that the plaintiffs adequately pleaded their constitutional claims (and met the Iqbal pleading standard) that the DOJ and MDC defendants acted directly to violate the plaintiffs' constitutional rights. Key to the ruling was the plaintiffs' carefully pleaded complaint, which incorporated most of two reports of the DOJ's Office of Inspector General, helping plaintiffs to meet the plausibility test. Also key was the plaintiffs' allegations that the DOJ defendants received regular information on the post-9/11 investigation, including detainees, and that they ordered and implemented certain policies and took certain actions that resulted directly in the plaintiffs' wrongful detention.

Along the way, the court ruled that the plaintiffs had Bivens claims (except for their free exercise claim), even though the DOJ defendants didn't argue Bivens on appeal. The court also ruled that the defendants weren't entitled to qualified immunity, because the law on pretrial detention and mistreatment was clear at the time.

The court concluded:

The suffering endured by those who were imprisoned merely because they were caught up in the hysteria of the days immediately following 9/11 is not without a remedy.

Holding individuals in solitary confinement twenty-three hours a day with regular strip searches because their perceived faith or race placed them in the group targeted for recruitment by al Qaeda violated the detainees' constitutional rights. To use such a broad and general basis for such severe confinement without any further particularization of a reason to suspect an individual's connection to terrorist activities requires certain assumptions about the "targeted group" not offered by Defendants nor supported in the record. It assumes that members of the group were already allied with or would be easily converted to the terrorist cause, until proven otherwise. Why else would no further particularization of a connection to terrorism be required? Perceived membership in the "targeted group" was seemingly enough to justify extended confinement in the most restrictive conditions available.

Judge Reena Raggi dissented.

June 17, 2015 in Cases and Case Materials, Courts and Judging, Due Process (Substantive), Equal Protection, Fifth Amendment, Fourth Amendment, Jurisdiction of Federal Courts, News, Opinion Analysis, Recent Cases | Permalink | Comments (0)

Friday, June 12, 2015

D.C. Circuit Vacates Military Commission Conspiracy Conviction

The D.C. Circuit today vacated the conspiracy conviction by military commission of Ali Hamza Ahmad Suliman al Bahlul, an alien enemy combatant who one time bragged about his role in the 9/11 attacks. The court said that the conviction for inchoate conspiracy--a charge that's not an offense under the international law of war--violated the Article III power of the judiciary "by authorizing Executive Branch tribunals to try the purely domestic crime . . . ."

The ruling is a victory of Bahlul and a blow to the government in conducting military commissions. In short, the case says that the government's charge in a military commission must be recognized as violation of the international law of war, and that Congress lacks authority to define an otherwise domestic crime as an international law of war in order to vest a military commission with authority to convict for its violation.

But while the ruling is significant, it's almost certainly not the last word on this case that's already gone up and down the judicial hierarchy. In particular: It's gone en banc at the D.C. Circuit before, and seems likely to go en banc again, if not farther, to the Supreme Court.

The court ruled first that Bahlul's structural challenge (that his conviction violated Article III) was not waivable, and that the court could therefore hear it--and to hear it de novo--even though he didn't raise it below.

The court went on to say that while the government could conduct law-of-war military commissions under Ex Parte Quirin, Quirin and its progeny limit the charges to "offenses against the law of war." But the court held that inchoate conspiracy isn't one of those offenses, that even the government agreed that it isn't, and that Congress didn't have power to define it as such: "Congress cannot, pursuant to the Define and Punish Clause, declare an offense to be an international war crime when the international law of war concededly does not." The court held that because conspiracy is only a domestic offense, and not an international law offense, the Bahlul's conviction by military commission (an Article I tribunal, not an Article III court) impermissibly intruded into the Article III role of the courts.

The court rejected the government's arguments that historical practice and the Necessary and Proper Clause (augmenting the Define and Punish Clause) did the trick.

Judge Tatel, concurring, explained why he joined the en banc court when it previously said that the Ex Post Facto Clause did not prevent Congress from granting military commissions jurisdiction over conspiracy, but now joined Judge Rogers in saying that separation-of-powers did:

The answer is the standard of review. The en banc Court came down the way it did, and I voted the way I did, because al Bahlul had forfeited his [previous] ex post facto challenge by failing to raise it before the Commission, so our review was for plain error. Applying that highly deferential standard, the Court concluded that it was "not 'obvious that conspiracy was "not . . . triable by law-of-war commissions" at the time al Bahlul committed his crimes.

But the court reviewed Bahlul's structural challenge de novo. And "[i]n my view, whether Article III prohibits military commissions from trying conspiracy turns on what Ex Parte Quirin says and what Hamdan does not"--that "the law-of-war exception is exclusively international," and does not include domestic crimes.

Judge Henderson wrote a lengthy dissent, arguing that the majority's approach to Congress's power to define the international law of war would restrict Congress to only what the international community has said, and, worse, by the judiciary's reckoning:

My colleagues contend--as a matter of constitutional law, not simply comity--that the Congress cannot authorize military-commission trials unless the international community agrees, jot and tittle, that the offense in question violates the law of war. And the contend of international law is to be determine by--who else?--the Judiciary, with little or no deference to the political branches.

June 12, 2015 in Cases and Case Materials, Congressional Authority, Courts and Judging, Jurisdiction of Federal Courts, News, Opinion Analysis, Separation of Powers, War Powers | Permalink | Comments (0)

Thursday, June 11, 2015

Crossroads GPS Has Standing to Defend FEC Non-Action

The D.C. Circuit ruled last week in Public Citizen v. FEC that Crossroads GPS, a conservative 501(c)(4) organization, has standing to intervene as a defendant in the on-going litigation involving the FEC's decision not to pursue Public Citizen's complaint against Crossroads GPS.

The case grows out of Public Citizen's complaint to the FEC that Crossroads GPS violated federal election law by failing to register as a political committee, despite "raising and spending significant amounts of money to influence the 2010 congressional elections." The FEC Office of General Counsel recommended that the FEC "find reason to believe" that Crossroads GPS violated FECA, but the FEC divided 3-3 on moving forward. Because the FEC needs four votes to move forward, it dismissed the complaint.

Public Citizen then sued the FEC in federal district court--the complaint is here--and Crossroads GPS moved to intervene as defendant. The district court denied the motion, ruling that Crossraods GPS didn't have standing, but the D.C. Circuit reversed.

The court said that Crossroads GPS has standing on the theory that an adverse court decision would mean that Crossroads GPS would again be subject to enforcement proceedings at the FEC:

In short, the favorable FEC ruling provides Crossroads--as most favorable agency actions would--with a significant benefit, similar to a favorable civil judgment, and precludes exposure to civil liability. Were Crossroads to lose that beneficial ruling, it would return to the position of a respondent subject to enforcement proceedings before a federal agency. Crossroads understandably claims this loss would amount to concrete injury.

The court said that "even where the possibility of prevailing on the merits after remand is speculative, a party seeking to uphold a favorable ruling can still suffer a concrete injury in fact."

The court rejected the argument that the FEC would adequately represent Crossroad's interests, because the FEC's General Counsel recommended moving forward in the first place.

The ruling doesn't say anything on the merits of Public Citizen's claims against the FEC. It only adds a new dimension to the case.

June 11, 2015 in Campaign Finance, Cases and Case Materials, Jurisdiction of Federal Courts, News, Standing | Permalink | Comments (0)

Monday, June 8, 2015

President Has Sole Power of Recognition, Says Supreme Court

The Supreme Court ruled today in Zivotofsky v. Kerry that the President has exclusive power of recognition of foreign sovereigns, and that a congressional attempt to force the President to recognize sovereignty over Jerusalem (by Israel) impermissibly intrudes on the President's power.

The ruling is a decisive win for the presidency over Congress in the area of recognition of foreign sovereignty. It also puts an end to this highly politicized case involving U.S. recognition of sovereignty over Jerusalem.

Recall that Congress enacted legislation requiring the State Department to put "Israel" as the country-of-birth on a passport of any U.S. citizen born in Jerusalem, upon the request of the passport applicant. President George W. Bush signed the legislation, but with a signing statement saying that this was unconstitutional. The State Department has long had regs that say that only "Jerusalem" (and not "Israel") go on the passport of a U.S. citizen born in Jerusalem, so as not to tilt the balance toward one side on the sensitive question of who has sovereignty over Jerusalem.

Our argument review is here.

Justice Kennedy wrote the Court's opinion, joined by Justices Ginsburg, Breyer, Sotomayor, and Kagan. Justice Kennedy said that the text and history of the Reception Clause (giving the President power to "receive Ambassadors and other public Ministers") gives the President alone authority to recognize foreign sovereigns. He wrote that the text and purpose of Section 214(d) of the Foreign Relations Authorization Act--which required the State Department to list "Israel" as the country-of-birth for a U.S. citizen born in Jerusalem, upon the passport applicant's request--intruded on that authority.

US-Passportcover

Justice Breyer filed a concurring opinion; Justice filed an opinion concurring in part and dissenting in part; Chief Justice Roberts filed a dissent (joined by Justice Alito); and Justice Scalia wrote a dissent (joined by Chief Justice Roberts and Justice Alito).

We'll have more analysis and review later.

June 8, 2015 in Cases and Case Materials, Congressional Authority, Executive Authority, News, Opinion Analysis, Separation of Powers | Permalink | Comments (0)

Friday, June 5, 2015

Clean Air Act Survives Federalism Challenges

The D.C. Circuit this week upheld a key authority of the EPA for enforcing the Clean Air Act against federalism and congressional authority challenges. The per curiam ruling rejected other challenges to EPA action, as well, and means that the case is dismissed. The ruling leaves intact the EPA's authority to designate geographic areas as noncompliant with the Clean Air Act and to take certain enforcement actions.

The federalism challenge in the case, Mississippi Commission on Environmental Quality v. EPA, sought to exploit the plurality's ruling in NFIB, where the Court held that Obamacare's Medicaid expansion couldn't condition a state's entire Medicaid grant on the ACA's Medicaid expansion. But the court rejected that argument, easily distinguishing Medicaid expansion and the EPA's actions here, as described below.

The case tested EPA's authority to designate certain geographic areas as noncompliant with the Clean Air Act's National Ambient Air Quality Standards. A variety of plaintiffs lodged complaints, but only two, Wise County, Texas, and the Texas Commission on Environmental Quality, raised constitutional claims. They argued that the EPA's designation of Wise County as a nonattainment area violated the Tenth Amendment and due process, and exceeded congressional authority under the Commerce Clause.

The court rejected these arguments. The court ruled that the Clean Air Act "authorizes the EPA to promulgate and administer a federal implementation plan of its own if the State fails to submit an adequate state implementation plan." The court said that's not commandeering, because the federal government isn't requiring the state or state officers to implement the federal plan.

The court also ruled that the Clean Air Act's sanctions for noncompliance--re-direction of a portion of federal highway funds to federal programs that would improve air quality--were not unduly coercive under NFIB. That's because they don't come close to the size of a state's federal Medicaid grant, and because it wasn't a new program that came as a surprise to the states. Indeed, the condition has been on the books (and states have taken advantage of it) for decades.

The court said that the Clean Air Act's delegation of authority to the EPA to designate areas as noncompliant is well within Congress's Commerce Clause authority. The court said that dirty air blows across state lines, causing a substantial effect on interstate commerce, and that the activities in Wise County that led to the dirty air themselves have a substantial effect on interstate commerce.

Finally, the court rejected a due process claim that the EPA administrator for Region 6 was biased. The court said that the administrator's past professional activities and statements did not rise to the level of an "unalterably closed mind" or an inability or unwillingness "to rationally consider arguments."

As mentioned, the court rejected other arguments against the EPA's authority, too, mostly under the APA.

June 5, 2015 in Cases and Case Materials, Congressional Authority, Courts and Judging, Due Process (Substantive), Federalism, News, Spending Clause, Tenth Amendment | Permalink | Comments (0)