Monday, June 22, 2015

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.


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)

Monday, June 1, 2015

No Clearly Established Right to Suicide Prevention Procedures

The Supreme Court ruled today that there was no clearly established right to proper implementation of adequate suicide prevention procedures in a prison. The per curiam ruling in Taylor v. Barkes means that the commissioner of the Delaware Department of Correction and a prison warden enjoyed qualified immunity against a claim by the family of a deceased prisoner that they failed to supervise and monitor a private contractor's intake screening and medical treatment of the suicidal prisoner. The family's civil rights case against the commissioner and warden is therefore dismissed.

The case involved a prisoner who had a history of psychiatric treatment, medication, and suicide, but who was not designated for any special suicide prevention measures pursuant to the intake protocol. After intake, the prisoner called his wife and told her he was going to kill himself. Officers observed the prisoner awake and behaving normally the next morning, but later that morning the prisoner hanged himself with a bed sheet.

The family sued the commissioner and warden for violation of the Eighth Amendment. But the Court's ruling today says that the prisoner had no clearly established right to proper implementation of an adequate suicide prevention protocol. As a result, the defendants enjoyed qualified immunity, and the case is dismissed.

June 1, 2015 in Cases and Case Materials, Fundamental Rights, News, Opinion Analysis | Permalink | Comments (0)

Amar, Kendall on Law of the Land

Check out this conversation between the Constitutional Accountability Center's Doug Kendall and Akhil Amar on Amar's new book The Law of the Land: A Grand Tour of Our Constitutional Republic.


June 1, 2015 in Books, News, Scholarship | Permalink | Comments (0)

Sunday, May 31, 2015

Stern on Lethal Injection

Jeffrey Stern gives the shameful back-story on Clayton Lockett's botched execution over at The Atlantic. In the course, he also gives the shameful back-story on Glossip v. Gross, the case now before the Supreme Court testing whether a state can use a three-drug protocol where the first drug does not reliably induce a a deep, coma-like unconsciousness, and where the second and third drugs can therefore cause excruciating pain.

Stern covers all the details: death-penalty states' initial inability to acquire sodium thiopental (the old first drug); their efforts to get it overseas and from compounding pharmacies; their later inability to get it from these sources (in part because of foreign governments' opposition to the death penalty); their turn to midazolam, a sedative, as an alternative; and their botched executions using this alternative.

If you don't know the back-story, read Stern's piece. It puts a different shade on the oral arguments in Glossip (which we previewed here).

May 31, 2015 in Cases and Case Materials, Fundamental Rights, News | Permalink | Comments (0)

DC Circuit Paves Way for Release of G-Mo Forced-Feeding Videos

The D.C. Circuit declined to intervene to reverse a lower court ruling that requires the government to move toward releasing videos of forced-feeding of a Guantanamo detainee. The decision means that the government and attorneys for detainee Abu Wa'el (Jihad) Dhiab will have to work together to agree on redactions and a proposal as to "how the videotapes can be made available to the public most efficiently," pursuant to the earlier district court orders.

Still, it may be some time, if ever, before the videos are released. That's because the redaction process could take a long time, even assuming the government doesn't foot-drag or tie up the process in further litigation. Or: after redaction, there may be nothing of substance to release; or the district court might decline to order release pursuant to the agreed-upon process; or the appeals court might reject release when the case inevitably comes back. In short: this is a victory for those seeking release, but it doesn't mean that we'll see release any time soon.

The case, Dhiab v. Obama, grows out of Dhiab's habeas petition, his hunger strike, and the government's efforts to force-feed him. Dhiab moved to stop the forced-feeding, and, in considering that motion, the district court reviewed 32 classified videotapes of Dhiab's forced-feedings. News media organizations intervened to get copies of the tapes, and the district court ordered the parties (1) to cooperate to redact the tapes and (2) to propose how the videos could be released. The order did not specifically require release.

The government appealed, but the D.C. Circuit declined to hear the merits. The appeals court ruled that it lacked appellate jurisdiction over the case, because the district court's orders weren't final, appealable orders (because they didn't conclusively resolve the matter, and the government still had opportunities under the district court orders to challenge the release). The court also ruled that it didn't have mandamus jurisdiction (for largely the same reasons).

The ruling paves the way for the release of redacted videos. But don't expect that to happen any time soon. Redaction will take some time, and even if the government doesn't deliberately foot-drag, redactions and the joint proposal for release will undoubtedly get tied up in lengthy litigation at the district court, and again on appeal.

May 31, 2015 in Cases and Case Materials, Courts and Judging, Jurisdiction of Federal Courts, News | Permalink | Comments (1)

Friday, May 29, 2015

Politics and Apportionment at the Supreme Court

The Supreme Court could give Republicans another 8 seats in Congress, according to David Wasserman and Harry Enten at FiveThirtyEight. They analyze the possible political impacts of Evenwel v. Abbott, the case testing how to measure population for compliance with one-person-one-vote. Plaintiffs in the case argue that states should be allowed to apportion seats based on where U.S. citizens over age 18 (the voting-eligible population) live, and not on where everyone, including minors and noncitizens, live. The Supreme Court noted jurisdiction earlier this week.

May 29, 2015 in Cases and Case Materials, Elections and Voting, News | Permalink | Comments (0)

Fifth Circuit Denies Stay in Texas's DAPA Challenge

The Fifth Circuit this week denied the government's motion for a stay of Judge Hanen's nationwide injunction against the government's deferred action program for parents of Americans and lawful permanent residents, or DAPA. The denial is not a final ruling on the merits (the court wrote that "we do not decide whether the Secretary has the authority to implement DAPA" at this "early stage of the case"); it says only that Texas's challenge to the program is sufficiently likely to succeed to withstand the government's motion for a stay. Still, the ruling presages the likely result on the merits and makes the case look even more likely to end up at the Supreme Court.

We last posted on the case here.

The court addressed two issues: Texas's standing to challenge DAPA, and the state's claim that DHS violated the Administrative Procedures Act in failing to use notice-and-comment rulemaking before implementing DAPA.

The court held that Texas had standing, because it'll cost the state some $130 under state law to subsidize each driver license for each DAPA beneficiary. The government argued that Texas could avoid the economic injury by changing its license-fee structure, and that in any event the many economic benefits of the DAPA program would offset the costs for the state.

The court rejected the former argument, saying that the "forced choice" itself is an injury:

The flaw in the government's reasoning is that Texas's forced choice between incurring costs and changing its fee structure is itself an injury: A plaintiff suffers an injury even if it can avoid that injury by incurring other costs. And being pressured to change state law constitutes an injury.

The court rejected the latter argument, saying that the economic offsets are of a different type--and that the injury therefore still stands, notwithstanding any economic benefits that the program may bring to the state.

Because the court said that Texas had standing based on its economic harm, it did not rule on Texas's claim that it had standing based on the district court's "abdication theory" (that Texas had standing because the federal government "abdicated" its "responsibility" to enforce the law in an area where it has exclusive authority).

The court said that Texas easily falls within the zone of interests of the INA, because "Congress permits states to deny many benefits to illegal aliens," and "the states seek only to be heard in the formulation of immigration policy before [the government] imposes substantial costs on them." The court also said that the INA doesn't bar judicial review.

The court held that DAPA amounts to "nonenforcement" of the INA, because it is the "affirmative act of conferring 'lawful presence' [quoting Johnson's memo] on a class of unlawfully present aliens." "[T]hat new designation triggers eligibility for federal and state benefits that would not otherwise be available."

On the merits, the court held that DAPA is not a mere policy statement (as the government argued), but rather is a "substantive" rule that requires notice and comment under the APA. According to the court, that's because DAPA doesn't really offer enforcement discretion, and it's more than internal procedural guidance (it's substantive, according to the court).

As to the nationwide injunction, the court only said that anything short of a nationwide ban would result in a "patchwork system" that would detract from the uniformity that Congress sought in the INA.

Judge Higginson dissented. He argued that "Supreme Court and Fifth Circuit caselaw forecloses plaintiffs' arguments challenging in court this internal executive enforcement guideline," and that "DHS is adhering to the law, not derogating from it." He argued that DAPA amounts to discretionary enforcement guidelines that aren't subject to notice-and-comment rulemaking under the APA.

May 29, 2015 in Cases and Case Materials, Courts and Judging, Executive Authority, Jurisdiction of Federal Courts, News, Opinion Analysis, Separation of Powers | Permalink | Comments (0)

Wednesday, May 27, 2015

No Standing for Homebuilders to Challenge Endangered Species Designation

The D.C. Circuit ruled in National Association of Home Builders v. U.S. Fish and Wildlife Service that the plaintiffs lacked standing to challenge settlement terms between the Service and environmental groups that would set designation of endangered species back on pace. The ruling means that the case is dismissed and should put the Service back on course to meet settlement deadlines for designating endangered species.

The case arose out of a ten-year backlog at the Service in designating endangered species. (The backlog grew out of a regulatory designation, "warranted-but-precluded," that allowed the Service to back-burner formal designation of a particular species as endangered. Some 250 species were on the list.) Environmental groups sued to get the Service moving, and the Service entered into settlement agreements designed to put the designation back on pace. But then Homebuilders sued (under the ESA's citizen suit provision and the APA) to stop the implementation of the settlement agreements--to stop the Service from putting endangered species designation back on pace.

The court said that Homebuilders lacked standing. The court ruled that Homebuilders lacked procedural standing (on the theory that the organization and its members didn't have a chance to comment on the settlement agreements), because under circuit law there's no procedural right to comment at the warranted-but-precluded stage. That's because nothing requires notice-and-comment at this stage, nothing gives Homebuilders a statutory right to sue, and Homebuilders couldn't show that the procedures were designed to protect its interests.

The court also ruled that Homebuilders couldn't identify a particular harm. Homebuilders sued to stop the settlement agreement, not to stop a designation of any particular species. And the court said that the settlement agreement simply required the Service to make a decision (one way or the other) within a timeline, and not necessarily to designate any particular species as endangered.

Finally, the court rejected Homebuilders' claim that the settlement would harm members, because members put resources into protected certain species, and designation would moot those efforts. The court said that these efforts were dictated by state and local law, or by members' independent efforts (designed to persuade the Service that a particular species didn't need protection, because it was already protected). Because the efforts weren't Service-mandated, they weren't "fairly traceable" to the Service's challenged actions.

May 27, 2015 in Cases and Case Materials, Courts and Judging, Jurisdiction of Federal Courts, News, Opinion Analysis, Standing | Permalink | Comments (0) | TrackBack (0)

Saturday, May 23, 2015

Contraception Mandate Accommodation Opponents Rebuffed--Again

Federal appeals courts this week dealt two (more) blows to opponents of Obamacare's religious accommodation to the contraception mandate. A Seventh Circuit panel ruled that the accommodation did not violate the Religious Freedom Restoration Act as interpreted by the Supreme Court in Hobby Lobby, and the full D.C. Circuit declined to re-hear an earlier panel ruling against opponents.

Together the rulings should put an end to this chapter of challenges to Obamacare. But by now we've learned never to say never . . . .

The cases grow out of religious non-profits' opposition to the government-created religious accommodation to Obamacare's contraception mandate. The accommodation requires a religious non-profit to complete a form to notify its health insurer (or third-party administrator) that the non-profit objects to providing contraception as part of its health insurance plan. The law then requires the insurer or third-party administrator to provide contraception coverage directly to plan participants, free of charge.

Opponents say that the accommodation--the form that notifies the insurance company of the religious objection--itself violates the Religious Freedom Restoration Act, because it "triggers" the provision of contraception coverage to plan participants.

The Seventh Circuit categorically rejected that claim last February. But then the Supreme Court handed down Hobby Lobby, holding that the contraception mandate violated the RFRA as applied to a self-insured, closely-held, for-profit corporation, and requiring an accommodation. But Hobby Lobby also contained language suggesting that an accommodation of the type challenged by religious non-profits would skirt any RFRA problem. The Supreme Court then vacated the Seventh Circuit ruling and remanded for reconsideration in light of Hobby Lobby.

The Seventh Circuit panel this week again ruled against the challengers, citing the same problems in the original case (before Hobby Lobby)--under the law the non-profit doesn't act as a "conduit" for the provision of contraception (the law itself does this), and the case was under-developed at the trial level. As to Hobby Lobby, the panel said that the Supreme Court recognized the accommodation as valid, but that the Court "did leave open . . . the possibility that the accommodation sought and obtained there would not prevent religious beliefs or practices from being substantially burdened in some cases." But the Seventh Circuit said that those beliefs or practices weren't burdened here, by the accommodation. In particular, the court wrote that Notre Dame couldn't come up with any workable alternative to the accommodation that wouldn't "impede the receipt of [contraception] benefits," especially given the undeveloped factual record in the case.

The D.C. Circuit (also, and again) came to the same conclusion in denying a rehearing en banc. Its earlier panel ruling in Priests for Life came down after Hobby Lobby, so already considered any effects of that case.

The principal problem with the challenges is that, contrary to the challengers' claims, it's not the accommodation that triggers the provision of contraception; it's the law that does that. In the language of the Seventh Circuit, the non-profits don't act as a "conduit" for the provision of contraception, because the law itself requires insurers and administrators to provide contraception. And a mistaken interpretation of the law is not a burden on religion. Or, as Judge Pillard put it in her concurring opinion to the D.C. Circuit's denial of en banc review:

The dispute we resolved is legal, not religious. Under the ACA regulations, a woman who obtains health insurance coverage through her employer is no more entitled to contraceptive coverage if her employer submits the disputed notice than if it does not. The ACA obligation to provide contraceptive coverage to all insured women does not depend on that notice. Nothing in RFRA requires that we accept Plaintiffs' assertions to the contrary.


May 23, 2015 in Cases and Case Materials, Fundamental Rights, News, Opinion Analysis, Religion | Permalink | Comments (0) | TrackBack (0)

Thursday, May 21, 2015

Maryland Tax Case Displays Court's Dormant Commerce Clause Fault Lines

The Supreme Court this week upheld Maryland's income tax system against a Dormant Commerce Clause challenge. The sharply divided ruling put on full display the Court's fault lines in this area, even as the five-Justice majority set out a bright line test for tax challenges under the Dormant Commerce Clause.

Our preview of the case, Comptroller v. Wynne, is here, with the full factual background. In brief: Maryland income tax consists of a state tax and a county tax. Residents who pay income tax to another jurisdiction (because they earn income there) are allowed a credit against the state tax, but not the county tax. This means that residents who earn out-of-state income are taxed on that income by the other jurisdiction, and by Maryland (under the county tax). (For out-of-staters earning income in Maryland, Maryland imposes a state income tax and a "special resident tax" (in lieu of the county tax).) Maryland residents who earned pass-through income from an S-corporation that earned income in several states sued, arguing that the "double taxation" violated the Dormant Commerce Clause.

The Court disagreed. Justice Alito wrote for the majority, joined by Chief Justice Roberts and Justices Kennedy, Breyer, and Sotomayor. Justice Alito wrote that the case was an easy application of precedent and the "internal consistency test." That test asks whether, if every state adopted the challenged tax structure, taxes would "inherently discriminate against interstate commerce without regard to the tax policies of other States." If so, the category of taxes "is typically unconstitutional." Justice Alito said that Maryland's tax system violated the rule, because a Marylander earning out-of-state income would be taxed on that income twice (once by the out-of-state jurisdiction, and once by the Maryland county), whereas a Maryland earning in-state income would be taxed only once.

Justice Ginsburg dissented, joined by Justice Scalia and Kagan. She argued that there's a long history "of States imposing and this Court upholding income taxes that carried a similar risk of double taxation," and that the majority's internal consistency test is deeply flawed. She also argued that "[f]or at least a century, 'domicile' has been recognized as a secure ground for taxation of residents' worldwide income," and based on the domicile principle Maryland's tax system (of its own residents) is valid. Justice Ginsburg gave several reasons for this principle, including the benefits that residents receive and the political influence that residents wield--both hotly disputed by Justice Alito. Justice Ginsburg also argued that the cases relied on by the majority involved gross receipts taxes, not income taxes. She said that the difference matters: "For decades--including the years when the majority's 'trilogy' was decided--the Court has routinely maintained that 'the difference between taxes on net income and taxes on gross receipts from interstate commerce warrants different results' under the Commerce Clause."

Finally, Justices Scalia and Thomas dissented separately, maintaining their positions that there is no Dormant Commerce Clause.

The upshot of this fractured ruling is that the internal consistency test is the rule for Dormant Commerce Clause challenges to state tax practices, and that the Court will strike tax practices that result in this kind of "double taxation" of out-of-state income.

May 21, 2015 in Cases and Case Materials, Dormant Commerce Clause, Federalism, News, Opinion Analysis | Permalink | Comments (0) | TrackBack (0)

Sunday, May 17, 2015

Obamacare Opponents Lack Standing--Again

Judge Reggie B. Walton (D.D.C.) ruled in American Freedom Law Center v. Obama that the plaintiffs lacked standing to challenge the federal government's "transitional policy" and "hardship exemption," which permit individuals temporarily to maintain health insurance coverage through plans that are not compliant with the general requirements of the Affordable Care Act.

The ruling deals a blow to opponents of the government's exemption--but a fully predictable one.

The plaintiffs' theory of standing turned on market forces driving up an AFLC staff member's premiums. It goes like this: When the federal government temporarily exempted certain individuals from enrolling in non-compliant plans (in reaction to the political blow-back after many folks received notices that their insurance would be cancelled and changed to comply with the ACA), this depleted the pool of individuals enrolling in ACA-compliant plans; and that drove up the costs of those plans. Plaintiff Muise was enrolled in such a plan, and, indeed, saw his premiums rise.

In short, Muise argued that his premiums rose in his compliant plan because the government's exemption meant that fewer people enrolled in compliant plans.

Judge Walton disagreed. He noted that insurance premiums can fluctuate for any number of reasons, not just the government's exemption, and that the plaintiff's theory suffered from other defects in the causal chain. Quoting from the government's motion to dismiss:

[the] [p]laintiffs have not established any of the links in the causal chain . . . that would be necessary to their apparent theory of standing to challenge this particular exemption. [The] [p]laintiffs have not alleged, for example, that there are individuals in Michigan with cancelled policies; that any such individuals consider the other policies available to them to be unaffordable; that any such individuals have availed themselves of [the defendants'] "hardship" exemption for consumers with cancelled policies; that, but for this exemption, any such individual would have purchased "minimum essential coverage" . . .; that in purchasing such coverage, that individual would have entered the same risk pool as these [p]laintiffs; and that such individual's addition to the risk pool would have lowered [the] [p]laintiffs' premiums.

The ruling is consistent with similar rulings in other district courts.

May 17, 2015 in Cases and Case Materials, Courts and Judging, Executive Authority, Jurisdiction of Federal Courts, News, Opinion Analysis, Separation of Powers, Standing | Permalink | Comments (0) | TrackBack (0)

Saturday, May 16, 2015

DC Circuit Says No Standing to Challenge Clean Water Act Determination

A three-judge panel of the D.C. Circuit ruled in National Association of Home Builders v. EPA that a development association lacked standing to challenge the EPA's determination that two reaches of the Santa Cruz River are traditional navigable waters, subject to federal regulation. The court said that the plaintiff was barred by collateral estoppel, based on the same court's earlier ruling against the same plaintiff lodging the same complaint.

But two judges argued that the earlier ruling was flat wrong, rearguing an issue that the court wrangled over just three years ago. (The full D.C. Circuit denied en banc review of the earlier ruling in 2012.)

Home Builders filed its original lawsuit in 2009, challenging the determination by the EPA and Army Corps of Engineers that two reaches of the Santa Cruz River were traditional navigable waterways. That determination requires any party that wishes to dredge or discharge into the river, or any waterway with a "significant nexus" to the river, to get a federal permit. Parties who don't know whether they need a permit can seek a Jurisdictional Determination from the Corps.

Home Builders sued to stop the designation, on the theory that its members would have to choose between applying for a permit and facing enforcement penalties. The D.C. Circuit dismissed the case, holding that Home Builders lacked standing unless and until the agencies applied the determination to a particular property:

the owner or developer of the property suffers no incremental injury in fact from the [determination] and any challenge to it is therefore premature. In the meanwhile, [Home Builders'] members face only the possibility of regulation, as they did before the [determination]: Any watercourse on their property may (or may not) turn out to be subject to [Clean Water Act] dredging permit requirements because of a nexus (or not) with the two Santa Cruz reaches.

Home Builders came back in this latest suit with additional allegations designed to fill the standing gaps in its original case. But the D.C. Circuit said they weren't enough: Home Builders' standing in the second case has exactly the same problems it did in the first.

The ruling means that Home Builders, and its members, have to wait until later in the process--until the agencies determine that particular land is covered--until they can challenge the original designation of the Santa Cruz.

But two judges on the panel argued that the first ruling was flat wrong. Judges Silberman and Sentelle wrote that any regulated party has standing to challenge an agency rule:

And the law is rather clear; any party covered by an agency's regulatory action has standing to challenge a rule when it issues--it certainly need not wait until a government agency seeks to enforce a rule. That proposition is so clearly established it is beyond question. Nor do parties have to wait until the government takes preliminary steps before enforcing--clearing its throat, so to speak. It is only necessary for a potential litigant to show that it is part of the regulated class and its behavior is likely affected by the government's action.


May 16, 2015 in Cases and Case Materials, Courts and Judging, Jurisdiction of Federal Courts, News, Opinion Analysis, Standing | Permalink | Comments (0) | TrackBack (0)

Wednesday, May 13, 2015

The Courts, The Constitution, and Phone Metadata

Check out this new podcast from the National Constitution Center, featuring Center Director Jeffrey Rosen, Stewart Baker (Steptoe), Bobby Chesney (U. Texas), and Deborah Pearlstein (Cardozo).

May 13, 2015 in News | Permalink | Comments (1) | TrackBack (0)

Seventh Circuit Says No Immunity for Prosecutor, Lab Techs in Civil Rights Case

The Seventh Circuit ruled in Armstrong v. Daily that a prosecutor and two crime lab technicians were not entitled to qualified immunity after they bungled an investigation that resulted in a faulty trial and foiled the plaintiff's attempts to demonstrate his innocence. In all, this top-to-bottom outrageous investigation put a wrongfully convicted plaintiff behind bars for 29 years.

Ralph Armstrong brought the civil rights case against prosecutor John Norsetter and state lab technicians Karen Daily and Daniel Campbell. Armstrong was convicted of rape and murder in 1981 and sentenced to life plus 16 years. The prosecution had two key pieces of physical evidence against him: drug paraphernalia found at the crime scene that could have shown who was in the victim's apartment the evening she was murdered; and a bathrobe belt used as the murder weapon.

The drug paraphernalia was never examined; instead, it was tossed in a trash bag, left in an office storage locker at the police station, and eventually lost. The bathrobe belt was tested crudely for DNA in 1980, which didn't rule out Armstrong. (The prosecution also relied on the identification by an eyewitness who Norsetter had hypnotized. Armstrong challenged this evidence in a prior case, where he lost his habeas claim at the Seventh Circuit.)

Armstrong later presented new DNA testing definitively excluding him and, in 2005, won a new trial through the state courts. A state court also ordered the prosecution to inform the defense of future DNA tests and to allow the defense to be present for any handling of the evidence. Armstrong stayed in prison.

Norsetter then ordered new testing of the belt, without telling Armstrong (despite the court order). Daily and Campbell conducted testing that consumed the entire DNA sample from the belt. The results could not confirm or eliminate Armstrong as the source, because the test they used could not distinguish between men with the same father. (This is important, because Armstrong's brother, who died in 2005, earlier confessed to the crime.) Norsetter never disclosed to Armstrong or the technicians that Armstrong's brother might be a suspect.

After Armstrong's attorneys learned that the prosecution's secret testing destroyed the evidence, they moved to dismiss charges against him. The court found that the prosecution acted in bad faith and dismissed the charges because the destruction of that evidence had irreparably compromised his right to a fair trail. Armstrong remained in prison for the three years between the destruction of the evidence in 2006 and the court's dismissal in 2009.

Armstrong then sued Norsetter, Daily, and Campbell, arguing that they violated his civil rights. Norsetter claimed absolute immunity as a prosecutor for the destruction of DNA evidence and qualified immunity for the destruction of the drug paraphernalia; Daily and Campbell claimed qualified immunity. The district court denied these claims, except as to Norsetter's involvement in the destruction of DNA evidence.

The Seventh Circuit affirmed. As to Norsetter, it ruled that Norsetter did not enjoy absolute immunity for his investigatory acts, and that he did not enjoy qualified immunity because he acted in bad faith in allowing the destruction of the drug paraphernalia and DNA sample. As to Daily and Campbell, the court said that

we must assume that Daily and Campbell's actions caused Armstrong to suffer a loss of liberty as he languished in prison for three more years after Daily said he was excluded by the earlier DNA tests and after the last sample had been destroyed in the [later] test of the newly discovered stain.

The court rejected the defendant's arguments that a state tort action could have provided Armstrong a remedy sufficient to satisfy federal due process under Parratt v. Taylor. In a lengthy discussion, the court said that the argument was based on a fundamental mis-reading of Parratt. In short:

When Parratt and its progeny are read carefully, then, and are read against the broader sweep of due process jurisprudence, they do not bar Armstrong's claims based on deprivation of his liberty through deliberate destruction of exculpatory evidence. More specifically, Parratt does not bar Armstrong's claims because the defendants' conduct was not "random and unauthorized" and the available state remedies are not adequate.

The court recognized "some disagreement among the courts about the conditions for obtaining a civil remedy for destruction of exculpatory evidence, those disagreements do not support a qualified immunity defense."

Judge Flaum argued that Norsetter should get qualified immunity, because his destruction of the drug paraphernalia was negligent, not "in bad faith."

May 13, 2015 in Cases and Case Materials, Courts and Judging, Fundamental Rights, News, Opinion Analysis | Permalink | Comments (0) | TrackBack (0)

Governor Looks to Constitutional Amendment to Undo Court Ruling on Pensions

Illinois Governor Bruce Rauner is looking to amend the state constitution to give the state more flexibility in cutting state worker pensions, according to the Herald & Review. Rauner's idea came in reaction to the state supreme court ruling last week holding that state efforts to cut state pensions violated the state constitutional Pension Protection Clause.

Still, an amendment is unlikely to occur, at least anytime soon. The Illinois Constitution requires a 3/5 vote of state lawmakers in both houses. But the Democratic-controlled state legislature is unlikely to approve any pension amendment at all, much less by this kind of super-majority. Even if the state legislature approved a measure, it'd need to be approved by 3/5 of the voters voting on the measure, or a majority voting in the election.

This is just the latest effort of Governor Rauner to re-make constitutions. Recall that he earlier issued an executive order cutting public-sector union fair-share fees, and filed a preemptive suit against the unions seeking to get mandatory public sector fair share fees declared unconstitutional. This bold move anticipates that the Supreme Court is ready to overturn Abood--a First Amendment mainstay that says that states can require fair share in the interests of preventing free riders and promoting labor peace. Given the Court's recent rulings, Rauner is probably right that Abood is on the chopping block. Still, his very aggressive suit is designed only to hasten Abood's demise.

May 13, 2015 in Comparative Constitutionalism, News, State Constitutional Law | Permalink | Comments (0) | TrackBack (0)