Friday, August 4, 2017

AG Moves to Clamp Down on Sanctuary Cities Through Public Safety Partnership Program

Attorney General Jeff Sessions announced yesterday that DOJ will "tak[e] . . . into account" a city's "sanctuary" status in determining eligibility for the Department's new Public Safety Partnership program. AG Sessions accompanied the announcement with letters to Albequerque, Baltimore, San Bernadino, and Stockton--cities that had expressed an interest in participating in the PSP--asking for information related to their sanctuary policies.

The move adds a new program, the PSP, to some other Justice programs that are also unavailable to "sanctuary" jurisdictions--those jurisdictions that restrict their officers from communicating with federal authorities regarding the citizenship or immigration status of individuals in detention. In this way, the move is yet one more attempt by DOJ to encourage jurisdictions to drop their sanctuary policies.

AG Sessions initiated the PSP program in June. It provides training and technical assistance to local jurisdictions "to address violent crime in their communities." The Department initially selected twelve jurisdictions to participate in the program.

Earlier, the Department moved to clamp down on "sanctuary" jurisdictions by requiring them to drop their sanctuary policies as a condition of qualification for certain Justice grants. (In particular, DOJ said that jurisdictions that failed to comply with Section 1373 would not qualify for certain DOJ and DHS grants. Section 1373 says that "a Federal, State, or local government entity or official may not prohibit, or in any way restrict, any government entity or official from sending to, or receiving from, the Immigration and Naturalization Service information regarding the citizenship or immigration status, lawful or unlawful, of any individual.") DOJ adopted this policy as a way to implement President Trump's facially overbroad sanctuary cities executive order.

AG Sessions didn't go so far as to categorically deny sanctuary jurisdictions from the PSP program, however. Instead, he said that "[b]y taking simple, common-sense considerations into account, we are encouraging every jurisdiction in this country to cooperate with federal law enforcement." Specifically:

In determining which jurisdictions to select, the Department will ask interested jurisdictions the following questions:

1.    Does your jurisdiction have a statute, rule, regulation, policy, or practice that is designed to ensure that U.S. Department of Homeland Security (DHS) personnel have access to any correctional or detention facility in order to meet with an alien (or an individual believed to be an alien) and inquire as to his or her right to be or to remain in the United States?

2.    Does your jurisdiction have a statute, rule, regulation, policy, or practice that is designed to ensure that your correctional and detention facilities provide at least 48 hours advance notice, where possible, to DHS regarding the scheduled release date and time of an alien in the jurisdiction's custody when DHS requests such notice in order to take custody of the alien?

3.    Does your jurisdiction have a statute, rule, regulation, policy, or practice that is designed to ensure that your correctional and detention facilities will honor a written request from DHS to hold a foreign national for up to 48 hours beyond the scheduled release date, in order to permit DHS to take custody of the foreign national?

AG Sessions tied the PSP program to the no-sanctuary-policies condition by arguing that sanctuary cities threaten public safety: "By protecting criminals from immigration enforcement, cities and states with so-called "sanctuary" policies make all of us less safe." AG Sessions presumably drew the connection at least in part in order to satisfy the relatedness requirement for federal conditioned spending programs under South Dakota v. Dole. (Under South Dakota, a federal conditioned spending program must (1) be in the "general welfare," (2) state the condition clearly, (3) be related to the condition, and (4) not turn pressure to participate into compulsion to participate.)

August 4, 2017 in Executive Authority, Federalism, News, Spending Clause | Permalink | Comments (0)

Thursday, August 3, 2017

Senate Blocks President Trump from Making Recess Appointments

The Hill reports that Senator Lisa Murkowski (R-Alaska) set nine pro forma sessions for the Senate over the August recess. The move means that the body will be in session every three days, even if only very briefly (just to gavel in, then immediately gavel out), so that it won't formally adjourn for the recess. Without an adjournment (more particularly, without formally going into a "recess"), President Trump can't use his recess appointment power.

Senate Republicans effectively used this tactic to frustrate President Obama's efforts to fill key executive slots. In 2014, the Supreme Court sided with the Senate on the practice in NLRB v. Noel Canning. The Court in that case held as a general matter that the Senate is in session when it says it is, and it's not when it says it's not. In particular, it held that a Senate schedule with a pro forma session every three days does not constitute a "recess" under the Recess Appointments Clause (unless the Senate says so). So when the Senate sets an every-three-day pro forma schedule over the August "recess," it similarly isn't in "recess" under the Recess Appointments Clause. And President Trump therefore can't make recess appointments.

August 3, 2017 in Appointment and Removal Powers, Cases and Case Materials, Executive Authority, News, Separation of Powers | Permalink | Comments (1)

Call for Papers: ACS Junior Scholars Public Law Workshop

The American Constitution Society for Law & Policy is accepting paper proposals for a workshop on public law on January 4, 2018, at the 2018 AALS Annual Meeting in San Diego.

A committee of ACS's Board of Academic Advisors will select 10 papers. Selected authors will present his or her paper and discuss it with two experienced scholars.

Papers can be in any field related to public law. Tenure-track and tenured faculty, or faculty with similar status, who have been full-time law teachers for 10 years or less as of December 31, 2017, are eligible. (Co-authored submissions are permissible, but each coauthor must qualify.)

Please send proposals to juniorscholarsworkshop@acslaw.org on or before October 18, 2017.

Check out the call on the ACS web-site for more information.

August 3, 2017 in Conferences, News, Scholarship | Permalink | Comments (0)

President Trump's Constitutional Signing Statement on Russia-Sanctions Bill

President Trump signed the Russia-sanctions bill yesterday, but issued a sweeping constitutional signing statement calling out the "clearly unconstitutional provisions" in this "significantly flawed" legislation.

While the wide-ranging statement says that the President "favor[s] tough measures to punish and deter aggressive and destabilizing behavior by Iran, North Korea, and Russia," it also guts efforts to hold the President's feet to the fire and suggests that the President may enforce the measures (or not enforce them) nearly any way he wants. In short, given the breathtaking sweep of the statement, only time will tell whether and how the President executes the bill.

The last paragraph sums it up:

Finally, my Administration particularly expects the Congress to refrain from using this flawed bill to hinder our important work with European allies to resolve the conflict in Ukraine, and from using it to hinder our efforts to address any unintended consequences it may have for American businesses, our friends, or our allies.

The bill, H.R. 3364, adopts several measures to keep the President on a tight leash with regard to actual enforcement of Russian sanctions and related actions. President Trump identified those specifically. Here's a summary:

Sections 253 and 257: Recognition of Foreign Territorial Changes Effected by Force in Violation of International Law

President Trump argued that these provisions "displace the President's exclusive constitutional authority to recognize foreign governments, including their territorial bounds, in conflict with the Supreme Court's recent decision in Zivotofsky v. Kerry."

Section 253, titled "Statement of Policy," says that "[t]he United States, consistent with the principle of ex injuria jus non oritur, supports the policy known as the "Stimson Doctrine" and thus does not recognize territorial changes effected by force, including the illegal invasions and occupations of Abkhazia, South Ossetia, Crimea, Eastern Ukraine, and Transnistria."

Section 257 deals specifically with Ukraine and says that it's "the policy of the United States to support the Government of Ukraine in restoring its sovereign and territorial integrity; to condemn and oppose all of the destabilizing efforts by the Government of the Russian Federation in Ukraine in violation of its obligations and international commitments; to never recognize the illegal annexation of Crimea by the Government of the Russian Federation or the separation of any portion of Ukrainian territory through the use of military force; to deter the Government of the Russian Federation from further destabilizing and invading Ukraine and other independent countries," among other things.

Section 216: Congressional Oversight and Disapproval of Executive Actions with Regard to Sanctions

President Trump argues that "section 216 seeks to grant the Congress the ability to change the law outside the constitutionally required process" in conflict with INS v. Chadha. In particular, the provisions "purport to allow the Congress to extend the review period through procedures that do not satisfy the requirements for changing the law under Article I, section 7 of the Constitution." But the President "nevertheless expect[s] to honor the bill's extended waiting periods to ensure that the Congress will have a full opportunity to avail itself of the bill's review procedures."

Section 216 creates an oversight and checking process for Congress to review and disapprove of executive actions related to Russia sanctions. The section authorizes Congress to issue a "joint resolution of disapproval" that would halt disapproved presidential actions through a fast-tracked procedure. But ultimate disapproval would require presidential signature or a veto override, so satisfies constitutional requirements.

President Trump doesn't appear to complain about this ultimate disapproval procedure. Instead, he complains about the section's procedure to "extend the review period" in violation of Article I, section 7. In particular, section 216 temporarily halts presidential actions when they're under consideration by Congress, when the President is considering a joint resolution of disapproval, and when Congress is reconsidering a joint resolution of disapproval. According to the President, the temporary halt during these periods violates the presentment requirement, because the resolution would take temporary effect, even though the President hadn't signed it.

Sections 254 and 257: Coordinating Aid and Ukrainian Energy Security

President Trump objected that these provisions "purport to direct my subordinates in the executive branch to undertake certain diplomatic initiatives, in contravention of the President's exclusive constitutional authority to determine the time, scope, and objective of international negotiations."

Section 254 provides a "Countering Russian Influence Fund" and sets goals and standards for using that money, including specifying how the Secretary of State shall coordinate and carry out activities under the fund and how the Secretary can modify the goals of the fund. It also requires the Secretary to "establish a pilot program for Foreign Service officer positions focused on governance and anticorruption activities" in covered countries.

Section 257 requires the Secretary to "work with the Government of Ukraine to develop a plan to increase energy security in Ukraine, increase the amount of energy produced in Ukraine, and reduce Ukraine's reliance on energy imports from the Russia Federation," provides funding for those efforts, and sets standards and provides for congressional oversight.

Various Sections Restricting Entry to U.S.

Finally, the President objected to various provisions restricting visas to individuals who engage in certain, specified behavior, like supporting Iran's ballistic missile program, violating arms embargos, and the like. The President wrote that these provisions "would require me to deny certain individuals entry into the United States, without an exception for the President's responsibility to receive ambassadors under Article II, section 3 of the Constitution."

August 3, 2017 in Congressional Authority, Executive Authority, News, Separation of Powers | Permalink | Comments (0)

Tuesday, August 1, 2017

D.C. Circuit Says Customers Have Standing to Sue Health Insurer for Data Breach

The D.C. Circuit ruled today that a group of CareFirst customers, proceeding as a class, had standing to sue the health insurer for its carelessness in protecting customers' personal information after cyber-attackers allegedly stole that information. The ruling is a victory for the plaintiffs, but it doesn't mean that the case will proceed to the merits: the lower court still has to determine whether it has diversity jurisdiction.

The problem was that the plaintiffs alleged imminent harms from the breach, and not actual harms. (As it turns out, some plaintiffs did allege actual harms, but the court didn't rule on those claims, because its ruling on imminent harms was sufficient to support standing.) The court applied the substantial-risk-of-harm test and ruled that the plaintiffs alleged a sufficiently imminent harm. Contrasting Clapper v. Amnesty International, the court said,

Here, by contrast, an unauthorized party has already accessed personally identifying data on CareFirst's servers, and it is much less speculative--at the very least, it is plausible--to infer that this party has both the intent and the ability to use that data for ill. As the Seventh Circuit asked, in another data breach case where the court found standing, "Why else would hackers break into a . . . database and steal consumers' private information? Presumably, the purpose of the hack is, sooner or later, to make fraudulent charges or assume those consumers' identities." . . . No long sequence of uncertain contingencies involving multiple independent actors has to occur before the plaintiffs in this case will suffer any harm; a substantial risk of harm exists already, simply by virtue of the hack and the nature of the data that the plaintiffs allege was taken. That risk is much more substantial than the risk presented to the Clapper Court, and satisfies the requirement of an injury in fact.

As to traceability, the court said that this doesn't require the plaintiffs to sue only "the most immediate cause, or even a proximate cause, of the plaintiffs' injuries [in this case, the robbers]; it requires only that those injuries be 'fairly traceable' to the defendant.'" The plaintiffs satisfied this test.

As to redressability, the court said that the plaintiffs have incurred costs to mitigate any damage, and that these "self-imposed risk-mitigation costs" "can satisfy the redressability requirement, when combined with a risk of future harm that is substantial enough to qualify as an injury in fact." (But the court noted that these kinds of costs are insufficient to satisfy the injury-in-fact requirement.)

August 1, 2017 in Cases and Case Materials, Jurisdiction of Federal Courts, News, Opinion Analysis, Standing | Permalink | Comments (0)

Sunday, July 30, 2017

Sixth Circuit Allows Most of Flint Water Suit to Move Forward

The Sixth Circuit ruled on Friday that most of two suits against the State of Michigan, state officers, Flint, and Flint officials for creating the ongoing water crisis can move forward. The ruling is a significant victory for the plaintiffs and all residents of Flint. It reverses a lower court and means that much of the original case can move to discovery.

The two consolidated cases arose when residents of Flint sued the state, the city, and state and city officials for a variety of constitutional claims for creating the water crisis that continues to plaque the city. The district court dismissed the cases on several grounds, but the Sixth Circuit on Friday reversed much of that ruling.

The court ruled first that the federal Safe Drinking Water Act did not displace the plaintiffs' constitutional claims under Section 1983. In particular, the court said that the language and legislative history of the SDWA did not point to displacement, that the SDWA's remedial scheme is not so comprehensive as to demonstrate congressional intent to preclude, and that the "contours of the rights and protections" under 1983 are different than those under the SDWA. The court went on to rule that the SDWA similarly did not displace the plaintiffs' conspiracy claim under Section 1985.

The court also ruled that the Eleventh Amendment barred claims against the State of Michigan and, in one of the two cases, against state agencies and Governor Snyder. (It noted that Eleventh Amendment immunity doesn't cover municipalities--Flint and Flint officials.) The court said that the plaintiffs in the other case sought injunctive relief against the agencies and Snyder, and could therefore move forward under Ex Parte Young. The court rejected the plaintiffs' claim that the defendants waived their Eleventh Amendment immunity based on their positions in this litigation.

Finally, the court rejected the defendants' other arguments, including absolute and qualified immunity defenses for agency officials.

July 30, 2017 in Cases and Case Materials, Jurisdiction of Federal Courts, News | Permalink | Comments (0)

Tuesday, July 25, 2017

Court Rejects Move to Halt Election Integrity Commission's Collection of Voter Information

Judge Colleen Kollar-Kotelly (D.D.C.) yesterday denied a motion by the Electronic Privacy Information Center for a Temporary Restraining Order and Preliminary Injunction to stop the Presidential Advisory Commission on Election Integrity from collecting voter roll data from the states.

The ruling also says that EPIC lacks organizational standing to sue on behalf of members of its advisory board, and that, while it has standing to seek redress for informational injuries under the E-Government Act, the Act isn't enforceable against the Commission (because it's not an "agency").

But the court went to lengths to say that the Commission limited its request to the states for only publicly available information, that the request is only a request (not a mandate) of the states, and that publicized voter information will be de-identified. If these things change, the court's analysis could well change, too. As a result, while the ruling allows the Commission's requests for voter roll information to go forward, the ruling also reminds us that states may decline to provide the information, and that the Commission will only get already-publicily-available information, and will have to store and use it with certain limitations.

The court said that EPIC lacked organizational standing to sue on behalf of members of its advisory board, because, even if EPIC is considered a membership organization for organizational standing purposes (which the court suggested it's not), "the only practical harms that Plaintiff's advisory board members would suffer, assuming their respective states decide to comply with the Commission's request in the future, is that their already publicly available information would be rendered more easily accessible by virtue of its consolidation on the [Commission's] computer systems . . . ." According to the court, that's not enough for standing.

But the court went on to say that EPIC had informational standing under the E-Government Act. The Act requires government agencies to conduct a privacy impact statement and publicize it. The court said that EPIC (1) had been deprived of this information and (2) therefore suffered the kind of harm that Congress sought to prevent by requiring it. The court also said that EPIC had standing under circuit precedent recognizing standing for an organization that "suffered a concrete and demonstrable injury to its activities . . . ." The court held that EPIC "has a long-standing mission to educate the public regarding privacy rights, and engage in this process by obtaining information from the government," and thus suffered such an injury.

But the court held that the Administrative Procedures Act (the basis of EPIC's suit, because the E-Government Act doesn't create a separate cause of action) doesn't apply to the Commission, because the Commission isn't an "agency" under the APA.

So even though EPIC has standing, it's not likely to succeed on the merits, and the court rejected its motion for a TRO and Preliminary Injunction.

July 25, 2017 in Cases and Case Materials, Jurisdiction of Federal Courts, News, Standing | Permalink | Comments (0)

Monday, July 3, 2017

D.C. Circuit Tosses Drone Strike Case

The D.C. Circuit on Friday dismissed a challenge to the government's drone strike program by the family of unintended, innocent victims. The court ruled that the case raised a political question.

The ruling was unsurprising, given the state of the law. But one judge on the panel concurred in order to lodge a harsh criticism.

The case involves the family members of Salem and Waleed bin Ali Jaber, the unintended, innocent victims of a drone strike in Yemen. They sought a declaratory judgment that the strike violated the Torture Victims Protection Act and the Alien Tort Statute.

The D.C. Circuit upheld a lower court ruling that the case raised a nonjusticiable political question. Drawing on circuit precedent, the El-Shifa case, the court wrote:

It would be difficult to imagine precedent more directly adverse to Plaintiff's position. While Plaintiffs clearly assert claims under the TVPA and ATS, the precise grounds they raise in their Complaint call for a court to pass judgment on the wisdom of [the] Executive's decision to commence military action--mistaken or not--against a foreign target. . . .

Plaintiffs will no doubt find this result unjust, but it stems from constitutional and pragmatic constraints on the Judiciary. In matters of political and military strategy, courts lack the competence necessary to determine whether the use of force was justified.

Judge Brown, who also wrote the majority opinion, concurred with a scathing critique of the application of the political question doctrine to cases like this, especially given the lack of oversight in the other two branches:

Of course, this begs the question: if judges will not check this outsized power, then who will? . . . The President is the most equipped to police his own house. But, despite an impressive number of executive oversight bodies, there is pitifully little oversight within the Executive. Presidents are slow to appoint members to these boards; their operations are shrouded in secrecy; and it often seems the board's are more interested in protecting and excusing the actions of agencies than holding them accountable. Congress perhaps? But congressional oversight is a joke--and a bad one at that. . . .

Our democracy is broken. We must, however, hope that it is not incurably so. . . . The Court's opinion . . . is all a Judiciary bound by precedent and constitutional constraints may permissibly claim. It is up to others to take it from here.

July 3, 2017 in Cases and Case Materials, Jurisdiction of Federal Courts, News, Opinion Analysis, Political Question Doctrine | Permalink | Comments (1)

Thursday, June 29, 2017

D.C. Circuit Says that Fannie Mae, Even Under Conservatorship, is No Government Actor

The D.C. Circuit ruled yesterday that Fannie Mae, a government-sponsored but privately-owned corporation, but now under conservatorship of an independent government agency, cannot be sued for a First Amendment violation. The court said that the corporation, even under conservatorship, isn't a government actor.

The case involves a Fannie Mae contractor, Caroline Herron, who alleged that Fannie Mae officials retaliated against her for raising concerns about mismanagement at the corporation. Herron brought a Bivens claim against Fannie Mae officials for a free-speech violation, among other claims. But the Bivens claim hinges, of course, on Fannie Mae officials being government actors. Herron argued that they were, because Fannie Mae is under conservatorship of an independent federal agency, the Federal Housing Finance Agency. In other words, the conservatorship converted Fannie Mae (an otherwise private actor) into a government actor.

The D.C. Circuit rejected that argument. The court looked to the three-part test in Lebron v. National R.R. Passenger Corp. for determining whether a "[g]overnment-created and -controlled corporation[]" is a government actor for constitutional purposes. The court held that (1) the government created Fannie Mae (2) "for the furtherance of governmental objectives." But the court held that (3) under the terms of the conservatorship the government didn't permanently control it. "Although there is no specific termination date, the purpose of the conservatorship is to restore Fannie Mae to a stable condition. 'This is an inherently temporary purpose.'" For the court, it's the purpose of the indefinite conservatorship, not its internal self-destruct clause (which didn't exist), that matters.

The ruling ends Herron's case. (The course dismissed her other claims, too.)

June 29, 2017 in Cases and Case Materials, News, Opinion Analysis, State Action Doctrine | Permalink | Comments (0)

Tuesday, June 27, 2017

Court Punts in Cross-Border Shooting Case

With all the activity at the Court yesterday, we might be excused for missing the Court's non-decision in Hernandez v. Mesa. But even as the Court punted, remanding to the lower court, this is a case we should pay attention to.

The case involved a border patrol agent who shot and killed a Mexican youth just on the other side of the border. (Our oral argument review is here.) The case teed up an important dispute over whether the Fourth Amendment applies outside the United States, and how the Court should decide that question. (The case also asked whether the agent enjoyed qualified immunity for a related Fifth Amendment claim.)

But then the Court added a third QP--whether the plaintiffs had a Bivens claim, an issue that the lower courts dodged--signalling that the Court thought this was a substantial, even threshold, issue. Then just last week in Abbasi the Court ruled that 9/11 detainees did not have a Bivens claim and in the course substantially narrowed the Bivens doctrine. Yesterday the Court put these two pieces together and took them to their logical conclusion: It remanded Hernandez with instructions to consider, as a threshold matter (that is, before the courts gets to the extraterritoriality question, and possibly even before the court gets to the qualified immunity question), whether the plaintiffs have a Bivens claim in light of Abbasi.

This does not bode well for the plaintiffs. That's because the Court in Abbasi all but limited the Bivens "context" to cases that look exactly like the three cases in which the Court has found a Bivens remedy. Outside of that "context," the Court won't extend Bivens if "special factors" counsel against a Bivens remedy. And the Court defined "special factors" broadly enough that it'll be hard to show that they don't. 

In other words, the plaintiffs will only prevail if they can show that special factors don't counsel against extending a Bivens remedy to this case. And given the very broad approach to "special factors" in Abbasi, that could be quite hard to do.

At the same time, the Court ruled that the lower court improperly granted qualified immunity to the agent. The Court said that the agent couldn't have known that Hernandez was Mexican (not American), and the lower court therefore erred in relying on the fact that Hernandez was "an alien who had no significant voluntary connection to . . . the United States."

That may be a hollow victory for the plaintiffs, however, if the courts rule as a threshold matter that they lack a Bivens claim. If they so rule, there'll be no need to even consider qualified immunity, or, for that matter, the extraterritorial application of the Fourth Amendment.

June 27, 2017 in Cases and Case Materials, Courts and Judging, Jurisdiction of Federal Courts, News, Opinion Analysis, Separation of Powers | Permalink | Comments (0)

Monday, June 26, 2017

Is the Travel Ban Case Moot?

When the Supreme Court granted certiorari and modified the lower courts' injunctions halting President Trump's travel ban today, it also directed the parties to brief this question: "Whether the challenges to Section 2(c) became moot on June 14, 2017."

The question matters, because June 14, 2017, is the date on which the 90-day ban would have expired under the order's stated effective date, March 16, 2017. In other words, the cases should have become moot on June 14, because that's when the ban, by the order's own terms, would end, anyway.

But that same day, President Trump issued an order stating that the new effective date for each enjoined provision of the travel ban would be the date on which the injunctions in those cases "are lifted or stayed with respect to that provision." The government argues that the order solves the mootness problem, because the enjoined provisions, including the 90-day ban wouldn't start until the injunctions go away.

But President Trump's order purporting to extend the effective date doesn't un-moot the case as of June 14, and it won't un-moot it when it goes to the Court in October.

As to June 14: The stated purpose for the 90-day ban was "[t]o temporarily reduce investigative burdens on relevant agencies during the [20-day review period of foreign nations' practices], to ensure the proper review and maximum utilization of available resources for the screening and vetting of foreign nationals, to ensure that adequate standards are established to prevent infiltration by foreign terrorists . . . ." But none of these reasons supports extending the effective date while injunctions remained in place. In other words, the government could move forward with all of those things while the injunctions were in place, thus securing the nation's safety against nationals from the six identified countries (the other reason for the 90-day ban), and obviating the need for 90 days after the injunctions go away.

As to October: Even if the government and Court take the position that the circuits' injunctions applied to "ensur[ing] the proper review and maximum utilization of available resources for the screening and vetting of foreign nationals" and "ensur[ing] that adequate standards are established to prevent infiltrating by foreign terrorists"--in other words, that the injunctions halted even the government's own review of its own processes, so that President Trump's subsequent order really did un-moot the case as of June 14--the case would seem to be moot by the time the Court hears it in October. That's because President Trump's subsequent order--the one purporting to extend the effective date--says that the ban again becomes effective when the injunctions "are lifted or stayed . . . ." It seems that the Supreme Court just "lifted or stayed" them, at least insofar as the government can re-start any stalled process to review government vetting standards. (The Court itself seems to have suggested so, when it wrote that "we fully expect that the relief we grant today will permit the Executive to conclude its internal work and provide adequate notice to foreign governments within the 90-day life of [the ban].") If so, 90 days will pass before the Court hears the case in October. In other words, it'll be moot in October.

Still, this can't be the result that the Court foresees. If it were, it wouldn't waste everybody's time and energy on briefing the mootness question as of June 14. So: Even if the case was, or becomes, technically moot, look for the Court to get to the merits.

June 26, 2017 in Cases and Case Materials, Jurisdiction of Federal Courts, Mootness, News, Opinion Analysis | Permalink | Comments (0)

Sunday, June 25, 2017

Fifth Circuit Says "Stigmatic" Harm Isn't Enough for Standing to Challenge State Opposite-Sex "Anti-Discrimination" Measure

The Fifth Circuit ruled last week that a group of plaintiffs lacked standing to challenge Mississippi's law that bans discrimination against those who believe that marriage is a union of one man and one woman. The court said that the plaintiffs pleaded only "stigmatic" harm, not concrete and particularized harm, and that this wasn't enough to get into federal course.

Mississippi's provision bans state "discriminatory action" against those whose "religious beliefs or moral convictions" say that marriage is a union between only one man and one woman. It applies to religious organizations when they make decisions regarding employment, housing, placement of children in foster or adoptive homes, or the "solemnization of a marriage based on a belief listed" in the provision. It also applies to parents if they raise their foster or adoptive children in accordance to the belief covered by the provision. And it applies to doctors, mental health counselors, and businesses that offer wedding-related services. The statute creates a private right of action for individuals for any violations by state officials and allows its use as a defense in private suits over conduct covered by the statute.

The plaintiffs are residents of Mississippi and two organizations (a church and a secular non-profit) that do not share the provision's belief that marriage is only between one man and one woman. They argued that "they are injured by the 'clear message' sent by [the provision] that the 'state government disapproves of and is hostile to same-sex couples, to unmarried people who engage in sexual relations, and to transgender people." They claimed that the provision violated the Establishment Clause and equal protection.

The Fifth Circuit tossed the case for lack of standing. The court said that the plaintiffs asserted only "stigmatic" harm, not concrete and particularized harm, and that the "stigmatic" harm simply wasn't enough to get into federal court. (The court held that the plaintiffs' asserted harm was nothing like the actual and concrete "exposure" harm in the monument, display, and prayer-at-football game cases. The court rejected the plaintiffs' argument that their case was just like the plaintiffs' case in Romer v. Evans, because the Romer Court didn't address standing, and lower courts therefore can't use it for that purpose.) The court also rejected the plaintiffs' theory of taxpayer standing (based on Flast v. Cohen), because the government hadn't yet spent money in support of the provision.

The ruling ends the case and leaves Mississippi's statute on the books--for now. Under the ruling, a viable challenger will probably have to wait for a concrete and particularized harm (discrimination) at the hands of a person or organization who falls within the protection of the provision, sue that person or organization, and argue that the provision violates the Constitution when the defendant raises it as a defense.

June 25, 2017 in Cases and Case Materials, Jurisdiction of Federal Courts, News, Opinion Analysis, Standing | Permalink | Comments (0)

Saturday, June 24, 2017

Pipeline Company Lacks Standing to Challenge State Foot-Dragging for Construction Approval

The D.C. Circuit ruled yesterday that Millennium Pipeline Company lacked standing to sue the New York State Department of Environmental Conservation for its foot-dragging on Millennium's application for a water-quality certificate--a prerequisite for building a pipeline under the Clean Water Act.

The ruling means that Millennium's case against the state agency is dismissed. But it also means that Millennium can proceed directly to the Federal Energy Regulatory Commission to get direct approval for the pipeline, considering the state agency's consideration waived.

The case arose when Millennium petitioned the state agency for a water-quality certificate, required under the Clean Water Act as a first step in gaining FERC approval for the pipeline. The state agency sat on the petition for over a year, however, arguing that it was incomplete. Millennium then sued the state agency, asking for a court order to require the agency to act so that it could take its application on to FERC.

But the D.C. Circuit ruled that Millennium lacked standing. That's because under the Clean Water Act when a state agency delays a decision for a year, the agency is deemed to have waived its consideration, and the applicant can take the application directly to FERC. As a result, the court said that Millennium hadn't suffered any harm from the state agency; after all, the agency's inaction only meant that Millennium could go right to FERC. The court went on to say that Millennium could sue FERC if it rejects the application, but that's down the road.

None of this breaks new law--and Millennium surely would have known this--so why'd Millennium sue? Probably because it anticipated opposition from the state agency down the road, and it wanted to get state-agency approval on the record now in order to preempt later opposition. The court had an answer for that, too: FERC, not the state agency, has final say, and Millennium can later sue FERC for any disapproval or delay.

June 24, 2017 in Cases and Case Materials, Jurisdiction of Federal Courts, News, Opinion Analysis, Standing | Permalink | Comments (0)

Friday, June 23, 2017

D.C. Circuit Says IDEA Class Action Not Moot

The D.C. Circuit ruled today that a class-action against the D.C. school system for failing to identify pre-school children with disabilities in violation of the Individuals with Disabilities Education Act was not moot just because the children were no longer toddlers with a personal stake in the requested relief. The court went on to affirm the district court's class certification and its comprehensive injunction designed to bring the District into compliance with the IDEA.

The case arose when the parents of six children, then ages three to six, sued D.C., arguing that the District failed to identify children with disabilities in violation of the IDEA. The district court granted class certification to a broad class of "[a]ll children [between three and five] who are or may be eligible for special education and related services" in D.C. and whom the District failed or would fail to "identify, locate, evaluate or offer special education and related services." The D.C. Circuit, however, vacated the class certification in light of Wal-Mart v. Dukes, the Supreme Court case rejecting "one of the most expansive class[es] ever," and which came down during the district court trial. The district court then certified four subclasses, all including three-to-five year-olds alleging different IDEA violations. The court then issued a comprehensive injunction to bring the District in line with the IDEA.

On appeal, the district argued that the case was moot, because all of the plaintiffs had moved beyond preschool.

The D.C. Circuit rejected that argument. The court held that the relation-back exception to the mootness doctrine in United States Parole Commission v. Geraghty applied, because the district court erroneously granted class certification, causing the litigation delay that resulted in the children aging out of their relief. The court explained: "Like the plaintiffs in Geraghty, the parents had live claims when they sought certification, and but for the district court's error, could have obtained proper class certification before their individual claims became moot."

The court noted that in Geraghty the district court erroneously denied class certification, whereas here the district court erroneously granted it. But the court said it didn't make a difference:

The point in Geraghty was that claims relate back when a trial court's error prevents a class from gaining independent status under Rule 23. Whether that error is the erroneous denial of class certification (as in Geraghty) or the erroneous certification of an excessively broad class (as here) makes no difference. What matters it that the named plaintiffs' claim became moot--and their class therefore never 'acquired . . . independent legal status'--due to the district court's mistake. In other words, but for the district court's error--certifying an overly broad class--the parents' claims would not have become moot. There is no legally relevant difference between this case and Geraghty.

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

Thursday, June 22, 2017

Tenth Circuit Says Any Actual Injury Will Do in Establishment Clause Case

The Tenth Circuit ruled this week that the mother of a school child had standing to challenge under the Establishment Clause the school's fundraising and support for a religious mission trip, even though the child received just one e-mail and one flyer from school officials soliciting donations for the trip.

The ruling reversed a district court order dismissing the case on the ground that the child's exposure to unconstitutional activities at the school lacked "a degree of constancy or conspicuousness."

The case arose after public school officials sought donated or a school-sponsored, religious mission trip to Guatemala. Families enrolled in the district and the American Humanist Association filed suit, seeking nominal monetary damages and declaratory and injunctive relief. The district court dismissed all the claims, ruling that the plaintiffs failed to show sufficient harm and that they lacked standing as taxpayers. As to plaintiff Jane Zoe, the district court held that the harm--one e-mail soliciting donations and one flyer from school employees soliciting donations--wasn't pervasive enough to satisfy standing requirements.

The Tenth Circuit reversed as to Zoe. The court held that under well-settled Supreme Court and circuit precedent, any harm, even nominal harm, will do to establish standing, and that a plaintiff need not show any particular level of heightened pervasiveness or degree of harm.

But the court denied injunctive relief to Zoe, holding that "the record does not suggest that Zoe is likely to receive similar fundraising solicitations in the future." The court also held that the other individual plaintiffs lacked standing, because they couldn't show that they'd been exposed (like Zoe had).

The ruling sends the case back to the district court for consideration of the merits.

June 22, 2017 in Cases and Case Materials, Establishment Clause, Jurisdiction of Federal Courts, News, Opinion Analysis, Standing | Permalink | Comments (0)

Tuesday, June 20, 2017

Call for Papers for Younger Scholars Forum in Comparative Law

The International Academy of Comparative Law invites younger scholars (no more than ten years of tenure-track faculty experience) to participate in the first-ever Younger Scholars Forum in Comparative Law, on Wednesday, July 25, 2018, in Fukuoka, Japan.

Submit an abstract between 150 and 500 words to the appropriate moderator of one of eight workshops or the Director of the Speakers' Corner by September 15, 2017.

The program includes workshops on the Separation of Powers and its Challenges in Comparative Perspectives; Populism and Comparative Approaches to Democratic Theory; Comparative Public and Private Law Responses to Religious Diversity; Methodological Approaches to Comparative Constitutional Law; and more.

Check out the detailed call for papers for more information and contacts.

June 20, 2017 in Comparative Constitutionalism, Conferences, News | Permalink | Comments (0)

Monday, June 19, 2017

Court Says No Damages Remedy for 9/11 Detainees

The Supreme Court ruled today that post-9/11 "of interest" detainees could not sue executive officials for damages for constitutional violations during their detention. Moreover, the ruling in Ziglar v. Abbasi all but wipes out future damages remedies against federal officials for constitutional violations, except in the very narrow circumstances of three cases where the Court has found such a remedy. (And those cases may be hanging on by just a string.)

The case arose when post-9/11 detainees at a federal detention facility sued then-AG John Ashcroft, then-FBI Director Robert Mueller, and then-INS Commissioner James Ziglar for abusive detention policies in violation of their Fourth- and Fifth-Amendment rights. The plaintiffs sought monetary damages under Bivens.

The Court today rejected those claims. In an opinion abounding with deference to Congress, Justice Kennedy, writing for himself and Chief Justice Roberts and Justices Thomas and Alito (Justices Sotomayor, Kagan, and Gorsuch were all recused), held that the case raised a new Bivens context and that special factors counseled against a Bivens remedy.

As to context, the Court set out this test:

If the case is different in a meaningful way from previous Bivens cases decided by this Court, then the context is new. Without endeavoring to create an exhaustive list of differences that are meaningful enough to make a given context a new one, some examples might prove instructive. A case might differ in a meaningful way because of the rank of the officers involved; the constitutional right at issue; the generality or specificity of the official action; the extent of judicial guidance as to how an officer should respond to the problem or emergency to be confronted; the statutory or other legal mandate under which the officer was operating; the risk or disruptive intrusion by the Judiciary into the functioning of other branches; or the present of potential special factors that previous Bivens cases did not consider.

In other words, if a new case isn't nearly on all fours with one of the three cases where the Court has found a Bivens remedy--Bivens itself (a Fourth Amendment violation), Davis v. Passman (an assistant's Fifth Amendment Due Process claim against a Congressman for gender discrimination), and Carlson v. Green (a prisoner's estate's Eighth Amendment Cruel-and-Unusual claim)--there's a new context. And the Court said that this case presented a new context.

As to special factors, the Court said that the claims "call[ed] into question the formulation and implementation of a general policy," that the policy related to the government's response to the 9/11 attacks (a national security concern, traditionally an area for the executive), that Congress had not provided a damages remedy, and that other remedies (injunctive relief, a habeas claim) were available.

Between the Court's very narrow view of new circumstances and its very broad view of special factors counseling against a Bivens remedy, this case failed. And the ruling ensures that very few future Bivens cases will succeed.

On another issue, the Court remanded a related claim against the prison warden, instructing the lower court to conduct a special-factors analysis. Finally, the Court rejected the plaintiffs' civil-rights conspiracy claim, holding that the defendants enjoyed qualified immunity, because the question whether officials all within the executive branch could constitute a conspiracy "is sufficiently open so that the officials in this suit could not be certain that [conspiracy] was applicable to their discussions and actions."

Justice Breyer dissented, joined by Justice Ginsburg.

June 19, 2017 in Cases and Case Materials, Courts and Judging, Jurisdiction of Federal Courts, News, Opinion Analysis, Separation of Powers | Permalink | Comments (0)

Wednesday, June 14, 2017

Third Circuit Tosses Election Qualifications Case in Virgin Islands

The Third Circuit last week dismissed a case challenging an elected candidate's qualifications for the Virgin Islands legislature. The ruling means that the elected candidate will not be seated.

The case arose when Kevin Rodriguez was elected to serve in the Virgin Islands Legislature. After the election, but before the swearing-in, a rival candidate, Janelle Sarauw, challenged Rodriguez's qualifications to serve, based on Rodriguez's prior representation in a bankruptcy case that he lived in Tennessee. (The VI Revised Organic Act requires that a person serving in the VI legislature reside in the VI for at least three years preceding the date of his or her election.) Sarauw sued in the VI courts and sought an injunction compelling the Board of Elections to de-certify Rodriguez as a qualified candidate, thus preventing him from taking a seat in the 32nd Legislature. (The Board, an independently elected body outside the legislature and judiciary, has authority under the ROA to determine qualifications of candidates before swearing in.)

While that case was moving up and down the VI courts, the 32nd Legislature was sworn in (without Rodriguez, because the courts were still working out how to deal with his qualification). Rodriguez then removed the case to federal court (remember, this is all federal law, including the ROA, because of the VI's status in relation to the US), asking for an injunction directing the 32nd Legislature to seat him.

The Third Circuit tossed the case. The court ruled that the courts lacked authority to rule a candidate qualified after the swearing in, because the ROA says that the legislature shall have the sole power to determine the qualifications of its members. In other words, the issue was textually committed to a coordinate branch of government--a political question. (The court ruled that the ROA contains separation-of-powers principles, which form the basis of the political question doctrine.) The court noted that separation-of-powers and the ROA would not prohibit the courts from ruling on a candidate's qualifications before swearing in, when the Board has authority to make such a determination, because the separation of powers don't apply to the Board, "a popularly elected and independent entity" that's not a part of the legislative or judicial branches. But Rodriguez only removed his case after the swearing-in, so his case was always a political question.

The court also ruled that the portion of the case brought by Sarauw, the "removed case," was moot, because the legislature had already been sworn in.

Along the way, the governor ordered a special election, and Sarauw won.

June 14, 2017 in Cases and Case Materials, Jurisdiction of Federal Courts, Mootness, News, Opinion Analysis, Political Question Doctrine, Separation of Powers | Permalink | Comments (0)

Monday, June 5, 2017

Court Says Intervenors Must Have Standing of Their Own

The Supreme Court ruled today that intervenors as of right under Rule 24(a)(2) have to meet Article III standing requirements if they wish to pursue relief not requested by a plaintiff.

But the Court didn't say whether the intervenor in the case sought relief different from the plaintiff. Instead, the Court remanded for further consideration on that point.

The case involved Steven Sherman's regulatory takings lawsuit against the town of Chester, New York, for holding up his housing subdivision project, MareBrook. A real estate development corporation, Laroe Estates, Inc., paid Sherman more than $2.5 million for a portion of the property, but agreed to transfer a certain number of lots back to Sherman when the town approved the development. Under the agreement, Laroe also had authority to settle a debt that Sherman owed a bank and to terminate the agreement with Sherman if the settlement failed. It did fail, and the bank took over the property, but Laroe didn't terminate its agreement with Sherman.

Laroe moved to intervene as of right pursuant to Rule 24(a)(2).

The Court ruled that Laroe had to satisfy Article III standing, if it sought relief different than the relief that Sherman sought. (The parties (and the United States as amicus) all agreed on this.) But the Court said that the record was ambiguous as to the relief that Laroe actually sought. So it remanded the case for further proceedings.

If the lower courts determine that Laroe seeks relief that's different than the relief that Sherman seeks--including the same relief, but in its own (not Sherman's) name--Laroe will have to demonstrate its own Article III standing.

June 5, 2017 in Cases and Case Materials, Courts and Judging, Jurisdiction of Federal Courts, News, Opinion Analysis, Standing | Permalink | Comments (0)

Friday, June 2, 2017

Ninth Circuit Upholds Gun Transfer Fee

The Ninth Circuit ruled this week that a state fee imposed on firearms transfers--and, in particular, a portion of the fee that goes to fund enforcement efforts against illegal firearms purchasers--does not violate the Second Amendment.

The case involved a challenge to California's firearms transfer fee--a $19 fee on firearms transfers, about $5 of which goes to fund enforcement efforts against illegal firearms purchasers. The plaintiffs claimed that the $5 portion of the fee violated the Second Amendment, because it imposed a burden on the right to bear arms that wasn't closely enough related to an important government interest.

The court first assumed, without deciding, that the fee fell within the core of the Second Amendment. It applied only intermediate scrutiny, because the fee wasn't a substantial burden on anyone's ability to actually get a firearm. (The court noted that the plaintiff "has neither alleged nor argued that the [fee] has any impact on the plaintiffs' actual ability to obtain and possess a firearm.") (The court noted that it always applied intermediate scrutiny at the second step of the familiar Second Amendment test, but it appeared to hold open the possibility that higher scrutiny would apply to laws that "severely burden" the right.)

The court said that the fee easily met intermediate scrutiny:

Given the State's important interest in promoting public safety and disarming prohibited persons under the first prong of the test, there is a "reasonable fit" between these important objectives and the challenged portion of the . . . fee.

The ruling means that the fee stays on the books.

June 2, 2017 in Cases and Case Materials, Fundamental Rights, News, Opinion Analysis, Second Amendment | Permalink | Comments (0)