Thursday, May 3, 2018
The Ninth Circuit this week denied rehearing en banc of a panel ruling upholding Montana's contribution limits against a First Amendment challenge. Through a forceful dissent and response-to-the-dissent, judges on the court wrangled over the right standard for contribution limits in the wake of Citizens United and McCutcheon v. FEC.
The long-running, up-and-down case, now Lair v. Motl, tests Montana's low contribution limits, designed to address the state's unique history with political corruption. A three-judge panel of the Ninth Circuit upheld the limits, and the full court voted to deny en banc review.
In dissent, Judge Ikuta, joined by Judges Callahan, Bea, M. Smith, and N.R. Smith, argued that the panel applied too lenient a standard. In particular, Judge Ikuta wrote that under McCutcheon and Citizens United, "the only state interest that justifies contribution limits is the prevention of acts that 'would be covered by bribery laws if a quid pro quo arrangement were proved.'"
In light of the Supreme Court's clarification, a state can justify imposing regulations limiting individuals' political speech (via limiting political contributions) only by producing evidence that it has a real problem in combating actual or apparent quid pro quo corruption. . . . [T]he government must provide evidence that 'the harms it recites are real and that its restriction will in fact alleviate them to a material degree.'" To meet this test here, a state must show that it has a realistic need to prevent acts that 'would be covered by bribery laws" by (for instance) presenting evidence that large monetary contributions were made "to control the exercise of an officeholder's official duties" or "point[ing] to record evidence or legislative findings suggesting any special corruption problem." One thing is certain: the state cannot carry its burden with evidence showing only that large contributions increase donors' influence or access.
Judges Fisher and Murguia responded, arguing that the dissent's test "has never been adopted by the Supreme Court or this court." "The evidentiary standard established by the Supreme Court requires that a state need only demonstrate a risk of quid pro quo corruption or its appearance that is neither conjectural nor illusory."
Ninth Circuit Says California Medical Waste Management Act Violates Dormant Commerce Clause (but Officials get Qualified Immunity)
The Ninth Circuit ruled in Daniels Sharpsmart, Inc. v. Smith that California's Medical Waste Management Act likely violates the Dormant Commerce Clause, but that officials who imposed a fine under the Act enjoy qualified immunity against a money-damages suit.
The case arose when Daniels, a sharps-container developer, shipped its medical waste out of California for disposal. Daniels originally shipped to another state and incinerated the waste, but later switched to states that permitted waste disposal using other methods.
This didn't sit well with California regulators, who sought to enforce the state Act's requirements that all medical waste be treated by incineration and that "[m]edical waste transported out of state shall be consigned to a permitted medical waste treatment facility in the receiving state." Regulators told Daniels that his waste had to be incinerated, even if the law of another state permitted an alternative method, and that Daniels would be penalized it if didn't incinerate all of its biohazardous waste that originated in California. Daniels continued to ship waste out of California and dispose of it in other ways, and the California regulators imposed a hefty penalty. Daniels sued.
The Ninth Circuit ruled that the Act likely violated the Dormant Commerce Clause. The court applied the "direct regulation emanation" of the Dormant Commerce Clause, which forbids a state from regulating transactions that take place across state lines or entirely outside of the state's borders. Referencing circuit precedent, the court wrote:
Rather, California has attempted to regulate waste treatment everywhere in the country, just as it tried to regulate art sales and Nevada tried to regulate rules violations procedures everywhere in the country. Of course, that could also have the effect of requiring Daniels to run afoul of other states' regulation of medical waste disposal within their jurisdictions, if California law directed something different from their requirements.
Therefore, Daniels will likely succeed on its claim that the Department officials' application of the [Act] constitutes a "per se violation of the Commerce Clause." Were it otherwise, California could purport to regulate the use or disposal of any item--product or refuse--everywhere in the country if it had its origin in California.
But the court went on to hold that state officials enjoyed qualified immunity against Daniels's suit for monetary damages. That's because "a reasonable official, who is not knowledgeable about the arcane considerations lurking within the dormant Commerce Clause doctrine, could reasonably, if erroneously, believe that the Department could control what was done with California waste in another state."
The court reversed the lower court on this point, noting that the lower court wrongly applied law "at a high level of generality" when it concluded that "[t]he extraterritoriality doctrine has been clearly established for decades."
Wednesday, May 2, 2018
The State of Texas, along with six other states, sued the government today to halt the DACA program. The lawsuit, filed in the Southern District of Texas, Brownsville, follows the pattern that Texas used to stop DAPA. (Recall that the Fifth Circuit ruled in favor of Texas in the DAPA lawsuit, and the Supreme Court affirmed by an equally divided Court, but setting no nationwide precedent.) Here's the plaintiffs' motion for a preliminary injunction and supporting memorandum.
The challenge comes on the heels of yet another ruling that President Trump's rescission of DACA is unlawful.
Texas argues that DACA violates the Immigration and Naturalization Act (quoting the Fifth Circuit's ruling in the DAPA case); that it violates notice-and-comment requirements in the Administrative Procedure Act; and that it violates the Take Care Clause.
Texas is joined by Alabama, Arkansas, Louisiana, Nebraska, South Carolina, and West Virginia.
Sunday, April 29, 2018
Judge Amy Berman Jackson (D.D.C.) on Friday dismissed Paul Manafort's civil case challenging the appointment of Robert Mueller as special counsel, and therefore Meuller's authority to prosecute him. The ruling will almost certainly withstand any appeal and thus ends Manafort's civil challenge to Mueller's authority. It has no effect on Manafort's criminal case, or his ability to challenge Mueller's authority in that case.
Manafort original pleading challenged his indictment and future actions by Mueller, arguing that Mueller's appointment was invalid and that his indictment exceeded Mueller's authority. But Manafort subsequently refined his claim and sought only prospective relief: an order declaring Mueller's appointment order invalid (but only as to paragraph (b)(ii), authorizing the Special Counsel to investigate "any matters that arose or may arise directly from the investigation") and "enjoining the Special Counsel's future ultra vires exercise of authority under that Order." Manafort backed away from his earlier and much broader claims, because circuit law would certainly foreclose those. But by seeking only prospective relief, Manafort did himself in.
Judge Jackson ruled that "Manfort's situation falls squarely within the scope of" Deaver v. Seymour, the 1987 case in which the D.C. Circuit extended Younger abstention and held that the subject of a criminal investigation cannot bring a civil action to attack an impending federal prosecution (except when the criminal case chilled First Amendment rights, not applicable here). In short:
[A] civil case is not the appropriate vehicle for taking issue with what a prosecutor has done in the past or where he might be headed in the future. It is a sound and well-established principle that a court should not exercise its equitable powers to interfere with or enjoin an ongoing criminal investigation when the defendant will have the opportunity to challenge any defects in the prosecution in the trial court or on direct appeal. Therefore, the Court finds that this civil complaint must be dismissed.
Moreover, Judge Jackson ruled that Manafort lacked standing, because he couldn't plead imminent harm, and because his claim wasn't ripe. (Remember that he refined his case to ask for only prospective relief.)
Shugerman wrote after Senator Ben Sasse said during last week's Judiciary Committee debate over the Mueller protection bill that "[m]any of us think we are bound" by Justice Scalia's lone dissent in Morrison.
Here's Steve Vladeck and Eric Posner's letter to the committee explaining why Sasse's position is wrong. Here's our coverage of the Committee's hearing last September on these same issues.
Thursday, April 26, 2018
The Supreme Court this week upheld a congressionally authorized practice called "inter partes review" that allows for reconsideration and cancellation by the Patent and Trademark Office of an already-issued patent. The Court said that inter partes review didn't violate Article III (by assigning a role of the judiciary to the PTO) or the Seventh Amendment.
The case tested inter partes review against Article III, on the argument that inter partes review represents an impermissible delegation of a core judicial function to an executive agency.
The Court, drawing on precedent, said that patents fell within the "public-rights doctrine," which permits executive or legislative bodies to determine matters "arising between the government and others." And moreover, inter partes review "involves the same basic matter as the grant of a patent" in the first place, and is therefore only a kind of "second look at an earlier . . . grant" by the PTO.
Justice Breyer wrote a concurrence, joined by Justices Ginsburg and Sotomayor, saying that "the Court's opinion should not be read to say that matters involving private rights may never be adjudicated other than by Article III courts."
Justice Gorsuch, joined by Chief Justice Roberts, dissented, arguing that the practice cut into the unique Article III role and independence of the courts and impermissibly assigned the role to the PTO. (Chief Justice Roberts and Justice Gorsuch (joined by Justice Kennedy) also dissented in Patchak, the case earlier this Term holding that a congressional act instructing courts to dismiss a certain class of cases didn't violate Article III, even when the act was targeted at a particular pending case, for similar reasons. These dissents are well worth a read.)
Wednesday, April 25, 2018
Congress needs to be more involved in decisions like those about when and where America fights terrorists. But the Kaine-Corker bill would not make Congress take enough responsibility for how these decisions are made and would give presidents too great an ability to keep spreading the war on terrorism.
Monday, April 23, 2018
The Ninth Circuit ruled today that a monkey had Article III standing to sue for copyright infringement. But the court also ruled that the monkey lacked statutory standing under the Copyright Act, so dismissed the claim.
The case, Naruto v. Slater, arose when wildlife photographer David Slater left his camera unattended in a reserve on the island of Sulawesi, Indonesia, to allow crested macaque monkeys to photograph themselves. Naruto, one of the monkeys, did just that, and Slater published his picture in a book of "monkey selfies." Naruto, through his next of friend PETA, sued for copyright infringement.
The Ninth Circuit ruled that Naruto had Article III standing. The court said that circuit precedent tied its hands--the Ninth Circuit previously ruled in Cetacean Community v. Bush that the world's whales, porpoises, and dolphins could have Article III standing to sue, although they lacked statutory standing under the relevant environmental statutes--and went on to urge the Ninth Circuit to reverse that precedent.
But the court further held that Naruto lacked statutory standing under the Copyright Act, because that Act doesn't permit a monkey to sue. It dismissed Naruto's case on this ground.
The court ruled that PETA didn't have next-of-friend standing, because it didn't assert a relationship with Naruto, and because "an animal cannot be represented, under our laws, by a 'next friend.'"
Friday, April 20, 2018
Check out the Yale Journal on Regulation's symposium on Lucia v. SEC, the case testing whether SEC ALJs are principal officers under the Appointments Clause (and, if so, appointed in violation of the Clause). The Court will hear oral arguments in the case on Monday.
Here's the Democratic National Committee's complaint against President Trump, the Trump campaign and aides, Russia, Russian agents, Julian Assange, and others for hacking into the DNC servers and releasing electronic communications in aid of then-candidate Trump.
The complaint, filed today in the Southern District of New York, alleges violations of the Computer Fraud and Abuse Act, RICO, the Wiretap Act, the Stored Communications Act, the Digital Millennium Copyright Act, the Trade Secrets Act, and state torts.
The DNC claims harms to its computer systems, harms to its communications and relations with various constituencies, threats against employees, and "significant interruption and disruption of its political and fundraising activities throughout the United States."
Thursday, April 19, 2018
The Seventh Circuit today affirmed a lower court's nationwide injunction against two portions of Attorney General Jeff Sessions's clamp-down on sanctuary cities. The ruling--a significant victory for Chicago and other sanctuary jurisdictions--means that the government cannot enforce the "notice" and "access" conditions on sanctuary cities' receipt of federal law-enforcement JAG grants.
Recall that the lower court ruled that Chicago demonstrated a likelihood of success in its challenge to two key conditions that AG Sessions imposed on sanctuary cities--the notice condition and the access condition--and imposed a nationwide preliminary injunction against the enforcement of those conditions. (The notice condition requires sanctuary jurisdictions to comply with a DHS request to provide advance notice of any scheduled release date and time for a particular alien. The access condition requires sanctuary jurisdictions to allow federal agents to have access to any correctional facility to meet with aliens and interrogate them.) (The lower court did not enjoin the enforcement of the third condition, that sanctuary jurisdictions certify compliance with 8 U.S.C. Sec. 1373.)
The government argued that the lower court erred on the merits and that it exceeded its authority in issuing a nationwide injunction. The Seventh Circuit disagreed on both counts.
The court ruled that AG Sessions lacked unilateral authority to impose the notice and access conditions on receipt of a federal grant, because that's Congress's job:
The Attorney General in this case used the sword of federal funding to conscript state and local authorities to aid in federal civil immigration enforcement. But the power of the purse rests with Congress, which authorized the federal funds at issue and did not impose any immigration enforcement conditions on the receipt of such funds. In fact, Congress repeatedly refused to approve of measures that would tie funding to state and local immigration policies. Nor, as we will discuss, did Congress authorize the Attorney General to impose such conditions.
The court found nothing in the INA that authorized the AG to impose these conditions, and it rejected the government's claim that general statutory authority for the Assistant Attorney General, under 34 U.S.C. Sec. 10102(a)(6), authorized the AG to impose these conditions. That subsection says that "[t]he Assistant Attorney General shall . . . exercise such other powers and functions as may be vested in the Assistant Attorney General pursuant to this chapter or by delegation of the Attorney General, including placing special conditions on all grants, and determining priority purposes for formula grants." (Emphasis added.) The court said that "[t]he inescapable problem here is that the Attorney General does not even claim that the power exercised here is authorized anywhere in the chapter, nor that the Attorney General possesses that authority and therefore can delegate it to the Assistant Attorney General. In fact, as set forth above, the Byrne JAG provisions set forth the duties of the Attorney General and do not provide any open-ended authority to impose additional conditions."
Two judges went on to say that the district court was well within its authority to grant a nationwide injunction:
The case before us presents an example of the type of case in which a district court should properly be able to apply an injunction nationwide. The case presents essentially a facial challenge to a policy applied nationwide, the balance of equities favors nationwide relief, and the format of the Byrne JAG grant itself renders individual relief ineffective to provide full relief.
Judge Manion dissented from this portion of the ruling.
Wednesday, April 18, 2018
Wednesday, April 11, 2018
Judge Colleen Kollar-Kotelly (D.D.C.) ruled yesterday that an attorney appearing pro se lacked standing to sue President Trump for alleged deficiencies in his financial disclosure report that he was required to file as a candidate. The ruling ends this challenge.
The case, Lovitky v. Trump, arose when attorney Jeffrey Lovitky obtained a copy of then-candidate Trump's financial disclosure report from the Office of Government Ethics and discovered what he believed to be deficiencies in the reporting. Lovitky sued, arguing that the report included President Trump's personal debts and business debts, and that this "commingl[ing]" of personal and non-personal liabilities "mak[es] it impossible to identify which of the liabilities listed on the financial disclosure report were the liabilities of the President, in violation of [federal law]." Lovitky sought mandamus relief that would "direct the President to amend his financial disclosure report . . . for the purpose of specifically identifying any debts he owed during the [relevant] reporting period." Lovitky also sought declaratory relief.
The court ruled that Lovitky lacked standing to sue, because his requested relief wouldn't redress his claimed injuries. (The court didn't address whether he had a sufficient injury for standing purposes, because he lacked redressability.) As to mandamus, the court surveyed circuit law allowing mandamus against the president as to a ministerial duty, but, quoting the D.C. Circuit, noted that "[i]t is not entirely clear . . . whether, and to what extent, these decisions remain good law after [the Supreme Court's plurality opinion in Franklin v. Massachusetts]." Ultimately, the court said that because of this ambiguity it "would hesitate to issue mandamus even if Defendant's duty to specifically disclose personal liabilities were ministerial, but because the Court has found that it is a discretionary duty, the Court cannot do so."
As to declaratory relief, the court noted that it, too, wasn't obviously available against the president post Franklin. Regardless, the court said that because mandamus wasn't available, and because the Declaratory Judgment Act doesn't create an independent basis for jurisdiction, declaratory relief had no jurisdictional hook, and the court therefore lacked jurisdiction.
Monday, April 9, 2018
Judge William G. Young (D. Mass.) last week rejected a Second Amendment challenge to Massachusetts's assault weapon ban. Judge Young held that covered rifles fell outside the Second Amendment and thus enjoyed no constitutional protection.
The case, Workman v. Healey, tested the state's ban on assault weapons and large-capacity magazines. The state ban was styled on the federal assault weapons ban, but, unlike Congress, the Massachusetts Legislature made the ban permanent. Plaintiffs sued in early 2017, arguing that the ban violated the Second Amendment.
The court disagreed. Judge Young wrote that the banned weapons fell outside the core of the Second Amendment and enjoyed no constitutional protection. He declined to apply any level of scrutiny and simply upheld the ban. The court explained:
Consequently, "Heller . . . presents us with a dispositive and relatively easy inquiry: Are the banned assault weapons and large-capacity magazines 'like' 'M-16 rifles,' i.e., 'weapons that are most useful in military service,' and thus outside the ambit of the Second Amendment?" The undisputed facts in this record convincingly demonstrate that the AR-15 and [large-capacity magazines] banned by the Act are "weapons that are most useful in military service." As a matter of law, these weapons and [large-capacity magazines] thus fall outside the scope of the Second Amendment and may be banned.
The court rejected the plaintiffs' argument that the AR-15 is a popular firearm, and therefore enjoys Second Amendment protection:
Yet the AR-15's present day popularity is not constitutionally material. This is because the words of our Constitution are not mutable. They mean the same today as they did 227 years ago when the Second Amendment was adopted. The test is not the AR-15's present day popularity but whether it is a weapon "most useful in military service."
Judge Young went on to quote Justice Scalia from Scalia Speaks.
The court also rejected the plaintiffs' claims that the ban is vague (because it doesn't define what "copies or duplicates" of assault weapons means) and that enforcement violated the Ex Post Facto Clause (because the state attorney general issued a notice that could punish existing ownership of banned weapons).
Monday, April 2, 2018
Check out this NYT editorial on MLK, race and voting rights at the Supreme Court. Here's what it says on Chief Justice Roberts's majority opinion in Shelby County striking the coverage formula for Section 5 preclearance, because "things have changed dramatically":
In one sense, he was right: Racial discrimination in voting is no longer as blatant or systemic as it was in 1965. But the idea that the American fixation on race and power had magically evaporated in just a few decades was, at best, striking naive. It was also disproved within hours of the court's ruling, when Republican lawmakers in Texas and North Carolina, both states that had been covered by the Voting Rights Act, rammed through discriminatory new voting laws that they had been gunning to pass for years, including some that had been blocked under the act.
Thursday, March 29, 2018
Judge Randolph D. Moss (D.D.C.) ruled in Siegel v. U.S. Dep't of Treasury that plaintiffs lacked standing to sue the U.S. government for anti-Palestinian actions of Israelis. The court rejected the plaintiffs' theory that U.S. aid to Israel caused their harm, and that judicial relief would redress it. The ruling means that the case is dismissed.
The plaintiffs in the case were U.S. taxpayers and two individuals who claimed that Israeli settlers took their property with the support of the Israeli military. They alleged that U.S. aid to Israel contributed to Israeli actions that were detrimental to Palestinians. The government moved to dismiss, arguing that the plaintiffs lacked standing; the district court agreed.
As to the taxpayers, the court said their "harm" was too diffuse to support standing. As to the two displaced individuals, the court said that they alleged a sufficient harm, but that they didn't sufficiently allege that U.S. aid to Israel caused their harm, or that judicial relief would redress it. The court said the two individual plaintiffs' "chain of reasoning is too remote and too speculative for several reasons." In short,
Plaintiffs ultimately ask the court to "pile conjecture on conjecture" and to reduce the complex decisions surrounding Israeli activity in the territory at issue to a single determinative variable. As this Court has previously explained, "[s]uch 'unadorned speculation as to the existence of a relationship between the challenged government action and the third-party conduct will not suffice to invoke the federal judicial power.'"
The Second Circuit ruled that New York's practice of using surplus revenue from highway tolls to fund its canal system did not violate the Dormant Commerce Clause. The ruling means that New York can continue this practice.
The court ruled that Congress specifically approved the practice in the Intermodal Surface Transportation Efficiency Act of 1991. That Act authorizes state authorities to collect highway tolls without repaying the federal government (for federal financial aid to construct and improve highways in the first place) so long as it first used those funds for specified purposes under the Act. If so, then a state could use all excess toll revenues "for any purpose for which Federal funds may be obligated by a State under [Title 23]." This includes "historic preservation, rehabilitation and operation of historic transportation buildings, structures, or facilities (including historic railroad facilities and canals)." A separate provision--a "Special Rule"--paralleled this rule and added specific conditions for the New York State Thruway.
The court said that the ISTEA "permitted the Thruway Authority to allocate excess toll revenues (1) to any transportation facilities under the Thruway Authority's jurisdiction or (2) for any project eligible to receive federal assistance under Title 23." According to the court, this "plain language of the ISTEA manifestly contains . . . 'unmistakably clear' evidence of an intent to authorize the Thruway Authority to use excess highway toll revenues for canal purposes."
Because Congress validly authorized this under its Commerce Clause authority, it can't violate the Dormant Commerce Clause.
Wednesday, March 28, 2018
Judge Peter J. Messitte (D. Md.) ruled today that Maryland and D.C. have standing to sue President Trump for violations of the Domestic and Foreign Emoluments Clauses. At the same time, Judge Messitte said that the plaintiffs lacked standing to sue with regard to Trump properties other than the Trump International Hotel in D.C.
The ruling says nothing about the merits and only means that the case can move forward, beyond this preliminary stage. Recall that a district judge ruled the other way in CREW's Emoluments Clause case against President Trump.
The case involves Maryland's and D.C.'s challenge to payments that President Trump receives as owner of his world-wide properties. The plaintiffs argue that these payments violate the Domestic and Foreign Emoluments Clauses. The President moved to dismiss the case based on lack of standing. Today the district court denied that motion.
The court ruled that the plaintiffs sufficiently alleged injuries-in-fact to their quasi-sovereign, proprietary, and parens patriae interests. As to their quasi-sovereign interest, the court said that other states' use of the Trump International Hotel on official business "rather clearly suggests that Maryland and the District of Columbia may very well feel themselves obliged, i.e., coerced, to patronize the Hotel in order to help them obtain federal favors." As to proprietary interests, the court said that "the President's ownership interest in the Hotel has had an almost certainly will continue to have an unlawful effect on competition, allowing an inference of impending (if not already occurring) injury to Plaintiffs' proprietary interests" in their own properties. Finally, as to the plaintiffs' parens patriae interest, the court said that "[i]t can hardly be gainsaid that a large number of Maryland and District of Columbia residents are being affected and will continue to be affected when foreign and state governments choose to stay, host events, or dine at the Hotel rather than at comparable Maryland or District of Columbia establishments, in whole or in substantial part simply because of the President's association with it."
The court also held that the plaintiffs sufficiently pleaded causation and redressability, and that the plaintiffs fell within the "zone of interests" of the Emoluments Clauses and that the case was not a nonjusticiable political question.
The court, citing a string of Supreme Court precedent, said that the plaintiffs' request for injunctive and declaratory relief against the President didn't violate the separation of powers.
But the court limited the case to a challenge based on the President's interest in the Trump International Hotel in D.C. (and not based on other Trump properties around the country or around the world). The court did not foreclose challenges based on those other properties in other cases, but said only that Maryland and D.C. had failed sufficiently to plead standing against Trump-owned properties outside D.C.
Tuesday, March 27, 2018