Saturday, November 19, 2016

Levinson on the Twelfth Amendment

Check out Sandy Levinson's essay on the Twelfth Amendment, the latest addition to the National Constitution Center's excellent Interactive Constitution Project.

November 19, 2016 in News | Permalink | Comments (0)

The Shameful Korematsu Decision: Wrong Then, Wrong Today

Trump supporters who have cited the shameful Korematsu ruling in support of Muslim registries (and possibly worse) might take a look at Noah Feldman's explanation in the NYT why the case was "not correct when it was decided, and . . . is not correct today." Here's Eugene Rostow's longer piece that makes similar points, referenced by Feldman.

Seems like somebody in the Trump camp could put an end to this nonsense--these suggestions that a President Trump could use this despicable ruling as support for contemptible policies. Or at least they could speak out against it (that is, if they wanted to). A president-elect might even use a frank and open repudiation of these Korematsu claims as an opportunity for some public civic education.

We posted several years ago on Peter Irons's efforts calling for Supreme Court repudiation of Korematsu and the other internment rulings. The chatter from Trump supporters, invoking the disgraceful (and disgraced) Korematsu ruling, underscore why efforts like this are so important.

November 19, 2016 in Executive Privilege, News | Permalink | Comments (1)

Friday, November 18, 2016

Sixth Circuit Issues Mixed Preemption Ruling in Labor-Rights Case

The Sixth Circuit ruled today that a local "right-to-work" ordinance was not preempted under the National Labor Relations Act, but that provisions banning hiring-hall agreements and dues-checkoff requirements are preempted.

The mixed ruling hands a partial victory to union opponents (by upholding the local "right-to-work" ordinance) and a partial victory to unions (by striking the hiring-hall and dues-checkoff bans).

Hardin County, Kentucky, enacted a so-called "right-to-work" ordinance, which prohibited employers and unions from requiring union membership or dues as a condition of employment. The ordinance also prohibited "hiring-hall" agreements (which require prospective employees to be recommended, approved, referred, or cleared by a union) and "dues-checkoff" provisions (which require employers to automatically deduct union dues and fees). Unions sued, arguing that the ordinance was preempted.

The Sixth Circuit disagreed on "right-to-work" and agreed on hiring-hall and dues-checkoff provisions.

The court ruled that the "right-to-work" provision was saved from preemption and was not field-preempted. The court looked to Section 14(b) of the NLRA:

Nothing in this Act shall be construed as authorizing the execution or application of agreements requiring membership in a labor organization as a condition of employment in any State or Territory in which such execution or application is prohibited by State or Territorial law.

The court held that Hardin County law is "State law" under this provision, and so saved from preemption by the plain terms of the Act. The court went on to say that it couldn't be field-preempted under the NLRA, because, well, it was saved under Section 14(b). ("It follows that Section 14(b)'s explicit exception of the state right-to-work laws from preemption trumps operation of implicit field preemption.")

As to the hiring-hall and dues-checkoff bans, the court held that these did not fall within the Section 14(b) exception. It held that the dues-checkoff ban was preempted by the Labor Management Relations Act, and that hiring-hall ban was explicitly permitted under the NLRA.

November 18, 2016 in Cases and Case Materials, Federalism, News, Opinion Analysis, Preemption | Permalink | Comments (0)

Local Effort to Ban Genetically Engineered Crops Preempted

The Ninth Circuit ruled today in Atay v. County of Maui that a local initiative to ban genetically engineered crops was preempted by federal and state law. The ruling ends this effort in Maui County, Hawaii, to ban GE crops.

The citizens of Maui County voted for an ordinance that banned the cultivation and testing of GE plants. The ordinance was designed "to protect organic and non-GE farmers and the County's environment from transgenic contamination and pesticides, preserve the right of Maui County residents to reject GE agriculture, and protect the County's vulnerable ecosystems and indigenous cultural heritage."

The Ninth Circuit ruled that the ordinance was preempted. The court held that the federal Plant Protection Act expressly preempted the GE ban as to crops that the Animal and Plant Health Inspection Service has deregulated. The PPA preemption provision says that "no State or political subdivision of a State may regulate the movement in interstate commerce of any . . . plant . . . plant pest, noxious weed, or plant product in order to control . . . eradicate . . . or prevent the introduction or dissemination of a . . . plant pest, or noxious weed, if the Secretary has issued a regulation or order to prevent the dissemination of the . . . plant pest, or noxious weed within the United States." The Secretary, through the APHIS, has done just that, so the court said that Maui's ban was preempted. (As to the interstate commerce element, the court said that GE seeds and plants flow across state lines, and that Congress specifically recognized in the PPA that "all plant pests, noxious weeds, plant products, articles capable of harboring plant pests or noxious weeds regulated under this chapter are in or affect interstate commerce.")

As to those crops not regulated by the APHIS, the court said that the PPA didn't impliedly preempt the ban, but Hawaii state law did. The court looked to Hawaii preemption law, which applies a "comprehensive statutory scheme" test to determine field-preemption, and held that Hawaii's statutory scheme fit the bill. (The Ninth Circuit handed down another case today with a similar state preemption holding, that one striking Kauai County's pesticide regulations.)

The ruling ends this local effort to ban GE crops.

November 18, 2016 in Cases and Case Materials, Federalism, News, Opinion Analysis, Preemption | Permalink | Comments (0)

States Lack Standing to Sue Over California's Egg Law

The Ninth Circuit ruled in Missouri ex rel. Koster v. Harris that six states lacked standing to sue California over its laws protecting hens that lay eggs. The ruling dismisses the case in favor of California (and its egg laws), unless and until the plaintiffs amend their complaint.

The plaintiffs, six egg-producing states, sued California after that state enacted a law setting certain standards for egg-laying hens. (The law bans the sale of eggs in the state by hens that are kept in cages where they can't lay down, stand up, extend their limbs, and turn around.) The plaintiffs alleged parens patriae standing on behalf of egg farmers in their states.

The Ninth Circuit ruled against them. The court said that the states couldn't show "an interest apart from the interests of particular private parties," the first of two additional elements of parens patriae standing (over and above the normal elements of standing). (The second additional element, not at issue here, is "[t]he State must express a quasi-sovereign interest.") The court held that the states didn't allege that California's law harmed their entire population, and that those affected (the egg farmers) could bring their own suit against California. The court rejected the plaintiffs' claim that the California law would cause a fluctuation in the price of eggs and thereby harm all consumers. It also rejected the claim that the plaintiffs had standing because California's law was discriminatory. (It wasn't; it applies to all hens, wherever they live. The lack of discrimination in the law also goes to the merits (although not at issue yet): under the Dormant Commerce Clause, a nondiscriminatory law is upheld only if its burdens on interstate commerce outweigh its benefits--a relatively low standard.)

The court instructed the district court to dismiss the case without prejudice, however, allowing the states to amend their complaint.

November 18, 2016 in Cases and Case Materials, Dormant Commerce Clause, Jurisdiction of Federal Courts, News, Opinion Analysis, Standing | Permalink | Comments (0)

Citizen Lacks Standing to Sue Senators Over Scuttled Supreme Court Nomination

Judge Rudolph Contreras (D.D.C.) ruled that a private citizen lacked standing to sue Senators McConnell and Grassley for failing to give President Obama's Supreme Court nominee, Judge Merrick Garland, a vote in the Senate.

Plaintiff Steven Michel brought the action under the Seventeenth Amendment, arguing that McConnell's and Grassley's stonewalling resulted in a loss of voice of his own home-state senators, and therefore a violation of his own right to vote for his home-state senators under the Seventeenth Amendment.

The court said that Michel lacked standing:

Mr. Michel has not shown that he has suffered an individualized injury such that he can maintain this action. This alleged diminution of his vote for United States Senators is the type of undifferentiated harm common to all citizens that is appropriate for redress in the political sphere: his claim is not that he has been unable to cast votes for Senators, but that his home-state Senators have been frustrated by the rules and leadership of the United States Senate. This is far from the type of direct, individualized harm that warrants judicial review of a "case or controversy."

November 18, 2016 in Cases and Case Materials, Jurisdiction of Federal Courts, News, Opinion Analysis, Standing | Permalink | Comments (0)

Thursday, November 17, 2016

Teachout on Trump and the Emoluments Clause

Check out Zephyr Teachout's (Fordham) take on whether Donald Trump's foreign business interests could violate the Emoluments Clause, in the NYT. ("And no Person holding any Office of Profit or Trust under them, shall, without the Consent of the Congress, accept of any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State.")

November 17, 2016 in News | Permalink | Comments (0)

Ten Commandments at City Hall Violates Establishment Clause (even with other secular monuments)

The Tenth Circuit ruled last week in Felix v. City of Bloomfield that the city's monument to the Ten Commandments violated the Establishment Clause, even though the overall display included other, later-erected secular monuments.

The case arose when a city council member obtained council permission to place a Ten Commandments monument in front of city hall, along with other monuments that would celebrate the city's "history of law and government." The council member raised private money for the Ten Commandments monument (from churches, among other sources), and, after some fits and starts, placed the massive monument (over five feet tall, 3,400 pounds, sunk 14 inches into the ground) right in front of city hall. The city held an unveiling ceremony, which included religious references, statements, and the like, and some secular ones, too.

After this suit was filed, arguing that the Ten Commandments monument violated the Establishment Clause, the council member arranged for other monuments at city hall, including one for the Declaration of Independence, one for the Gettysburg Address, and one for the Bill of Rights.

The Tenth Circuit ruled that the Ten Commandments monument violated the Establishment Clause. The court wrote that an objective observer, reasonably informed about the monument, would have concluded that the city was endorsing religion. The court said that the text on the monument, its prominent location, the religious circumstances surrounding its financing and unveiling, and the timing of this lawsuit (just seven months after the monument's unveiling) all pointed toward endorsement.

The court recognized the city's effort to secularize the display with later, secular monuments, but said that this wasn't enough to scrub the religious history behind it.

November 17, 2016 in Cases and Case Materials, Establishment Clause, News, Opinion Analysis, Religion | Permalink | Comments (0)

Tenth Circuit: State is Immune From Federal Slavery Claim

The Tenth Circuit ruled in Mojsilovic v. State of Oklahoma that the state's sovereign immunity barred the plaintiffs' forced-labor claim under the federal Trafficking Victims Protection Reauthorization Act. The ruling ends this case.

The plaintiffs, Danijela and Aleksandar Mojsilovic, were hired by the University of Oklahoma on H-1B visas to conduct DNA sequencing and issue typing and to make transfectants and tissue cultures. Their supervisor, Dr. William Hildebrand, forced them to work longer hours than permitted by their visas, without pay, for his private corporation, Pure Protein, on threat of having their visas revoked. The Mojsilovic's sued under the TVPRA, seeking monetary damages under the Act; the University asserted sovereign immunity; and the district court dismissed the case.

The Tenth Circuit affirmed. The court ruled that Congress enacted the TVPRA under its Commerce Clause authority (and not its Thirteenth Amendment authority), and so could not abrogate state sovereign immunity under the Eleventh Amendment. In any event, the court said that any abrogation wasn't sufficiently clear in the language of the TVPRA. (The TVPRA applies to "whoever," without specifically naming "states.")

The ruling, while not surprising under the Court's abrogation doctrine, illustrates the impact of the rule that Congress cannot abrogate state sovereign immunity using its Commerce Clause authority. It means that states and state agencies can get away with trafficking, slavery, involuntary servitude, forced-labor, and the like without incurring TVPRA liability.

Congress could, of course, change this by making clear that the TVPRA is enacted under the Thirteenth Amendment and clearly abrogating state sovereign immunity.

November 17, 2016 in Cases and Case Materials, Commerce Clause, Congressional Authority, Eleventh Amendment, Federalism, News, Opinion Analysis, Thirteenth Amendment | Permalink | Comments (1)

Wednesday, November 16, 2016

Sixth Circuit Says Bankruptcy Gives Detroit a Free Pass on Civil Rights

The Sixth Circuit ruled this week that the Bankruptcy Code prevented citizens and organizations in Detroit, which is is Chapter 9 bankruptcy proceedings, from suing the city for certain constitutional violations.

The ruling gives Detroit a free pass on certain civil rights--because it is in bankruptcy. Indeed, the court goes so far as to say (based on almost no authority) that because the financial conditions in Detroit are so bad, federalism considerations even more support a reading of the Bankruptcy Code that bars certain civil rights actions against the city.

The lesson: If you're out to have your constitutional rights violated, do it in a city that's not in bankruptcy, with really big financial problems.

The case arose when Detroit citizens and organizations sued the city in the Eastern District of Michigan for turning off thousands of residents' water for nonpayment and refusing to negotiate. The plaintiffs sought declaratory and injunctive relief; they brought due process and equal protection claims (among others) under 42 U.S.C. Sec. 1983 and Monell.

The district court then transferred the case to bankruptcy court and consolidated it with Detroit's Chapter 9 case. The plaintiffs moved for a TRO, and the city moved to dismiss pursuant to 11 U.S.C. Sec. 904 (in the Bankruptcy Code). That section says:

Notwithstanding any power of the court, unless the debtor consents or the plan so provides, the court may not, by any stay, order, or decree, in the case or otherwise, interfere with--

(1) any of the political or governmental powers of the debtor;

(2) any of the property or revenues of the debtor; or

(3) the debtor's use or enjoyment of any income-producing property.

The Sixth Circuit ruled, with little analysis, that each of these three conditions applied, and therefore the bankruptcy court had no power to issue declaratory or injunctive relief, and therefore the case must be dismissed.

Along the way, the court had some pretty surprising things to say about federalism and protection of rights. For example, the court wrote that Section 904 is essentially a federalism protection for a city like Detroit, and a city in bankruptcy--and especially one with really bad financial problems--ought (perhaps paradoxically) to have more protection against constitutional-rights claims (than a city in a regular district court) because of it. Here's how the court put it:

That a federal court's power should be more constrained in the chapter 9 context than in a typical Monell action also makes sense. Monell plaintiffs may claim damages and prospective injunctive relief, such as the implementation of a training program that better protects citizens' constitutional rights, provided they make the appropriate showing. We agree that the Tenth Amendment is not a barrier to a federal court's authority over a municipality in that setting.

But a discrete change in policy in a particular office or department of local government is far removed from the complete financial overhaul undertaken in a municipal reorganization. Detroit's case is a good example. "At the time of filing, the City had over $18 billion in escalating debt, over 100,000 creditors, hundreds of millions of dollars of negative cash flow," failing infrastructure, and "a crumbling water and sewer system." The bankruptcy court bore responsibility for approving a plan of adjustment equally vast in its aim to remedy these conditions. Concerns for state sovereignty loom larger with so much at stake. "As a state-federal cooperative enterprise conducted in delicate circumstances in which state sovereignty must be respected, Congress has been sedulous to assure that the bankruptcy power not be used in municipal insolvencies in a manner that oversteps delicate state-federal boundaries." The massive scale of a municipal bankruptcy simply provides more opportunities for excessive federal court interference.

Apparently only one other court, a bankruptcy court, had used federalism in the way the Sixth Circuit did to support its Section 904 analysis, because that's the only case (in two versions) that the Sixth Circuit cited in support of its federalism claims.

Surprisingly, the court said that this reasoning applies equally to the plaintiffs' request for declaratory relief. (It's not entirely clear how declaratory relief alone interferes with any of the three categories in Section 904.)

All this said, the ruling probably doesn't extend to other civil rights claims that don't involve a "contract" with the government. This case ended up in the bankruptcy court because the residents had a water-services "contract" with the city that fell under the city's bankruptcy. A different kind of claim (police brutality, for example) wouldn't involve a "contract," (hopefully) wouldn't get kicked to bankruptcy, and therefore wouldn't get dismissed under Section 904.

November 16, 2016 in Cases and Case Materials, Federalism, News, Opinion Analysis | Permalink | Comments (0)

Enclave Clause is No Restriction on Federal Land Taking for Oneida Nation

The Second Circuit last week rejected claims that the federal government exceeded its authority and violated the Enclave Clause in taking about 13,000 acres of land in central New York into trust on behalf of the Oneida Indian Nation of New York.

The ruling is a victory for the Nation and its ability to self-govern. In particular, under federal land-into-trust law, it means that the Nation's land is not subject to state and local taxes and zoning and regulatory requirements, and that (unless the Nation consents) New York lacks criminal and civil jurisdiction over Nation members on the land.

The ruling is also a reaffirmation of the federal government's land-into-trust powers, by which the federal government can take state land into trust for Native American nations, and the very limited restrictions on federal power to take and regulate land under the Enclave Clause. (The Enclave Clause, Art. I, Sec. 8, cl. 17, is a favorite of those who argue against federal authority to hold and regulate lands other than Washington, D.C., even though that reading is not supported by the text, history, or precedent of the Clause.)

The case arose when the federal government took about 13,000 acres of land in New York into trust on behalf of the Oneida Indian Nation, pursuant to authority under the Indian Reorganization Act. (The dispute goes back much farther, however.) The Oneida Nation already owned the land--it purchased it on the private market--but sought the trust in order to govern itself and avoid state taxes and certain regulations. Plaintiffs (two towns, a civic organization, and some individuals) sued, arguing that the land-into-trust procedures violated the Indian Commerce Clause, state sovereignty, and the Enclave Clause. (Plaintiffs asserted that they'd be harmed by the Nation's casino, and the inability to collect taxes on the land where it sits.)

The Second Circuit flatly rejected those claims. The court ruled that under the Indian Commerce Clause the federal government has plenary authority to regulate with respect to Native American nations, including authority to take land in trust for nations, and that this authority wasn't correlated to the Interstate Commerce Clause or otherwise bound only to purely intra-state activities. The court also ruled that no constitutional provisions protected "state sovereignty" as against the land-into-trust procedures.

As to the Enclave Clause claim, the court, drawing on longstanding precedent, wrote that "state consent is needed only when the federal government takes 'exclusive' jurisdiction over land within a state." (This follows from precedent and the plain language of the Clause itself: "The Congress shall have Power . . . To exercise exclusive Legislative in all Cases whatsoever, over such District . . . as may, by Cession of particular States, and the Acceptance of Congress, become the Seat of the Government of the United States, and to exercise like Authority over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings[.]") Because the federal government's land-into-trust procedures leave some authority to a state (like civil and criminal law as against non-members, and the power to impose a sales tax on sales to non-members), it did not need "Cession of" the state under the Enclave Clause.

November 16, 2016 in Cases and Case Materials, Congressional Authority, Federalism, News, Opinion Analysis | Permalink | Comments (0)

Monday, November 14, 2016

District Judge Halts Phoenix Fire at Washington Monument

Judge Colleen Kollar-Kotelly (D.D.C.) denied the group Catharsis on the Mall a preliminary injunction against the National Park Service from enforcing its regulation against certain bonfires on Park Service land in D.C.

The ruling, though preliminary, means that Catharsis on the Mall didn't get to burn its wooden Phoenix this weekend--symbolic speech in support of veterans' and PTSD survivors' access to treatment.

The case arose when Catharsis sought permission to hold its second annual 72-hour vigil near the Washington Monument, which was to culminate in the burning of a 24-foot tall Phoenix. The group sought to show its support for veterans' and PTSD survivors' access to treatment.

The NPS denied permission, however, citing a new regulatory scheme for outdoor events, including a regulation that bans burning structures by size.

But here's the problem: NPS granted a permit to the group to burn a structure during its vigil last year that was even bigger than this year's Phoenix. And the D.C. Fire Department didn't think the Phoenix burning would have been a problem.

Still, the court ruled that Catharsis didn't show a likelihood of success on the merits. In particular, the court wrote that the new bonfire regulation was a content-neutral time, place, manner regulation on speech in a public forum; that it was narrowly tailored to maintain safety; and that Catharsis had other ways to convey its message.

The ruling is only on Catharsis's motion for a preliminary injunction, but given the court's approach to the likelihood-of-success question, the final ruling will almost certainly be the same.

November 14, 2016 in Cases and Case Materials, First Amendment, News, Opinion Analysis, Speech | Permalink | Comments (0)

Savage on the Powers Obama Leaves to Trump

Check out Charlie Savage's piece in the NYT, reviewing President Obama's assertions of national-security power--power that President Obama now leaves to President-Elect Trump.

November 14, 2016 in News | Permalink | Comments (0)

Saturday, November 12, 2016

No Free Speech for Officer Criticizing Operations, Superiors

The D.C. Circuit ruled this week in LeFande v. D.C. that the D.C. Metropolitan Police Department did not violate an officer's First Amendment rights when the MPD fired the officer for internal e-mails critical of MPD operations and officers, and refusing to respond to a superior's request.

The ruling puts an end to this very long-running dispute, and the very long-running, and highly contentious, relationship between the officer, LeFande, and the MPD.

This piece of the case arose when Matthew LeFande, police reserve officer with the MPD (a volunteer position designed to assist full-time officers), wrote a series of internal e-mails highly critical of certain MPD operations and MPD officers, and declining to comply with a superior's request. (The case actually started much earlier, with a suit LeFande filed against the MPD, and the MPD fired him. He raised a First Amendment claim to his termination (based on his free speech in bringing the suit), but the MPD said it actually fired him for the e-mails--thus opening this latest chapter of the case.)

The court ruled that it didn't have to say whether the e-mails constituted citizen speech on matters of public concern (under Pickering), because the MPD's interest  in efficiency outweighed LeFande's interests in free speech, anyway. The court held that LeFande's free-speech interest in sending e-mails criticizing MPD operations and officers "cannot outweigh the fact that their 'disruptive force' . . . threatens workplace efficiency." It further held that LeFande's interest in sending e-mails declining a superior's request were outweighed by the MPD's interest in efficiency, because "[i]f police department leadership faced opposition from employees after every routine request, the machinery of law enforcement would grind to a halt."

The court conceded that some of LeFande's speech (especially those e-mails criticizing MPD operations) implicated matters of public concern--perhaps more than the survey questions in Connick. But it ruled that the MPD's interest outweighed LeFande's, especially "given the 'special degree of trust and discipline required in a police force.'"

November 12, 2016 in Cases and Case Materials, First Amendment, News, Opinion Analysis, Speech | Permalink | Comments (0)

Rakoff on Our Diminished Access to the Courts

Senior Judge Jed S. Rakoff (S.D.N.Y.) published his essay in The New York Review of Books, Why You Won't Get Your Day in Court, examining the many ways that doctrine, politics, logistics, resources, and raw power conspire to leave us with a diminished access to the courts. Check it out.

November 12, 2016 in News | Permalink | Comments (0)

Sunday, November 6, 2016

Supremes Keep Arizona Ban on Ballot Collection in Place

The Supreme Court on Saturday stayed an injunction issued by the Ninth Circuit late last week halting enforcement of Arizona's ballot collection ban. The order means that Arizona can enforce its criminal ban on ballot collection pending appeal to the full Ninth Circuit--well after Election Day.

Recall that a divided three-judge panel of the Ninth Circuit denied a preliminary injunction against Arizona's 2016 ballot collection law. That law criminalized the collection and delivery of early ballots by anyone other than the voter. (Arizona had previously allowed certain persons other than the voter to collect and deliver a voter's ballot. This practice was used by minority communities in the state, including Native American, Hispanic, and African American communities that, for different reasons, lacked easy access to the polls.)

The full Ninth Circuit then agreed to hear the case. And the court issued an injunction against enforcement of the law pending appeal. As to any problems from enjoining a law so close to the election (like voter confusion)--the Purcell factors--the court wrote:

First, the injunction does not affect the state's election processes or machinery. . . .

Enjoining enforcement of H.B. 2023 will not have any effect on voters themselves, on the conduct of election officials at the polls, or on the counting of ballots. . . .

Here, the injunction preserves the status quo prior to the recent legislative action in H.B. 2023. Every other election cycle in Arizona has permitted the collection of legitimate ballots by third parties to election officials. . . .

Moreover, the court wrote that Arizona's first attempt at criminalizing ballot collection was stopped by DOJ--denied preclearance before Shelby County effective wiped preclearance off the books. But then Arizona re-enacted it in 2016, after Shelby County said that Arizona no longer had to preclear election-law changes. Thus, according to the Ninth Circuit, an injunction pending appeal didn't run into Purcell problems, because "[i]n the wake of Shelby County, the judiciary provides the only meaningful review of legislation that may violate the Voting Rights Act."

The Ninth Circuit will hear oral arguments in January, but the Supreme Court's order on Saturday ensures that Arizona's ban on ballot collection will stay in place for this election cycle.

The order was unsigned, and there were no concurrences or dissents.

The Ninth Circuit's resource page is here.

 

 

November 6, 2016 in Cases and Case Materials, Elections and Voting, News, Opinion Analysis | Permalink | Comments (0)

Wednesday, November 2, 2016

Ninth Circuit Fast-Tracks En Banc Review of Arizona Ban on Ballot Collection

A divided three-judge panel of the Ninth Circuit on Friday affirmed a district court's denial of a preliminary injunction against Arizona's law criminalizing the collection of early ballots. Today, the full Ninth Circuit agreed to rehear the case--just six days before the election.

Today's grant means that Friday's decision has no precedential value, and that the full Ninth Circuit will reconsider the matter itself.

The case challenges Arizona's 2016 law that criminalizes the collection of early ballots, with certain exceptions. This changed Arizona's earlier practice, which permitted individuals other than the voter to collect early ballots and submit them on behalf of the voter--a practice relied upon and favored by minority communities in the state, including Native American, Hispanic, and African American communities that, for different reasons, lack easy access to the polls.

Plaintiffs challenged the new law under the Voting Rights Act, the Equal Protection Clause, and the First Amendment. The district court ruled that they didn't show a likelihood of success on the merits and thus denied a preliminary injunction. A 2-1 panel of the Ninth Circuit affirmed on Friday. Then, today, the full court agreed to rehear the case.

But under Ninth Circuit rules, don't necessarily expect a reversal. As Judge Reinhardt explains in concurring with today's grant:

Unfortunately, however, our en banc process is not perfect and also does not necessarily represent the view of the full court. It is selected by lot, as a full court en banc is ordinarily deemed too unwieldy. Thus, although it is preferable to a three judge panel, in an extraordinary case such as this, it too may not accurately reflect the view of the court as a whole. . . . The en banc court here is composed of a majority of judges who did not support the en banc call [and] it may be that its judgment will not reflect the view of the full court.

Judges O'Scannlain, Tallman, Callahan, Bea, and Ikuta dissented from the grant, arguing that just six days out from the election, the en banc court "risks present chaos and future confusion."

November 2, 2016 in Cases and Case Materials, Courts and Judging, Elections and Voting, News | Permalink | Comments (1)

Wednesday, October 26, 2016

Conservatives Make the Case for Obstruction of SCOTUS Nominees

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

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

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

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

Monday, October 24, 2016

State Court Judges Politically Biased in Election Disputes

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

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

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

The upshot:

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

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

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

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

Backpage Lacks Standing to Challenge Ban on Advertising Sex Trafficking

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

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

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

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

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

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