Tuesday, May 9, 2017
President Trump fired FBI Director James Comey today in a move that some are comparing to President Nixon's Saturday Night Massacre in the Watergate investigation. That's because Comey is leading a criminal investigation into whether Trump advisors worked with the Russian government to influence the 2016 presidential election.
The timing of the sacking--amid the Russia investigation, and for things that happened as far back as July 2016--raises significant questions about President Trump's reasons for firing Comey. It also raises questions whether a future FBI director can aggressively pursue the Russia investigation, or any other investigation that the administration disfavors, without fear of retribution.
As a result, President Trump's move elicited a new round of calls from congressional Democrats for an independent counsel into any Russian collusion.
Here's a document that includes a statement from the White House, President Trump's letter to Comey, AG Sessions' letter to President Trump, and the DOJ legal analysis and recommendation to fire Comey.
Deputy AG Rod Rosenstein, who penned the DOJ memo, wrote that Comey "usurp[ed] the Attorney General's authority on July 5, 2016, and announce[d] his conclusion the [Clinton e-mail] case should be closed without prosecution," and that Comey held "press conferences to release derogatory information about the subject of a declined criminal investigation," Clinton, in violation of "another longstanding principle." Rosenstein wrote that his "perspective on these issues is shared by former Attorneys General and Deputy Attorneys General from different eras and both political parties."
Thursday, May 4, 2017
President Trump issued his long-awaited and much promoted executive order on protecting religious liberties today. Most say that when the rubber hits the road, the EO does, well, nothing at all, except maybe telegraph the President's feelings about the importance of protecting religious liberties. Even the ACLU, earlier geared up to sue, backed down when they read the actual language.
So: Is the ACLU right? Is there even enough in Trump's EO to sue over?
Probably not. Consider it, section by section:
Section 1 states that "[i]t shall be the policy of the executive branch to vigorously enforce Federal law's robust protections for religious freedom" and that "[t]he executive branch will honor and enforce those protections." At most this language states the administration's enforcement priorities for law that already exists.
Section 2 takes aim at the Johnson Amendment--that portion of IRC 501(c)(3) that bans nonprofits from directly or indirectly engaging in electioneering on behalf of, or in opposition to, any candidate for elective public office. (Nonprofits can engage in ordinary political speech; they do it all time. They just can't endorse candidates.) But the language of Section 2 does no such thing. It says, "the Secretary of the Treasury shall ensure, to the extent permitted by law, that the Department of the Treasury does not take any adverse action against any individual, house of worship, or other religious organization on the basis that such individual or organization speaks or has spoken about moral or political issues from a religious perspective, where speech of similar character has, consistent with law, not ordinarily been treated as participation or intervention in a political campaign on behalf of (or in opposition to) a candidate for public office by the Department of the Treasury." (Emphasis added.) In other words, the plain terms of Section 2 don't take down the Johnson Amendment (even if they could); instead, they comply with it.
Section 3 directs the relevant secretaries to "consider issuing amended regulations" to overturn the contraception mandate regs. Folks may agree or disagree over the wisdom of the contraception mandate, but there's nothing objectionable with a president asking an agency to "consider issuing amended regulations." And even if there were, the "consider" means that anyone challenging this portion of the EO could face an uphill battle to show standing.
The balance of the EO is just dressing.
In other words, the EO really doesn't do anything that one might sue over--at least yet. Even Section 2--the portion perhaps most likely to be challenged on Establishment Clause, Equal Protection, free speech, and "take care" grounds (and in fact challenged on exactly those grounds in a suit filed by the Freedom From Religion Foundation)--actually says that the administration will comply with the Johnson Amendment.
The Freedom From Religion Foundation wisely quotes President Trump throughout its complaint, arguing that the EO must be interpreted in light of his public statements (and thus drawing on this same (successful) strategy in other cases challenging the travel ban and the sanctuary cities EO).
But unlike those other EOs, the plain text of this one seems to do nothing--at least not yet.
Check out the Illinois Law Review's outstanding, mile-wide and mile-deep on-line symposium Examining Trump's First 100 Days in Office: His Plan, Promises, and Pursuit of Making America Great Again.
A very impressive group of thirty-one authors write on topics ranging from governance issues (the judiciary, federalism, administrative law) to every hot area of domestic and foreign policy.
Wednesday, May 3, 2017
The Sixth Circuit ruled yesterday that a damages claim against Rowan County Clerk Kim Davis for denying a marriage license to a same-sex couple can move forward. The ruling reverses a lower court ruling that dismissed the case as moot and sends the case back for further proceedings.
This was one of three cases challenging Davis's refusal to issue marriage licenses to same-sex couples in the wake of Obergefell. The other two sought declaratory and injunctive relief; this one sought monetary damages.
After Kentucky passed a law that permitted county clerks to issue licenses without their names--an accommodation to Davis's religious objection--same-sex couples, including the plaintiffs here, received their marriage licenses. Courts then dismissed the two cases seeking declaratory and injunctive relief as moot (because the plaintiffs received their licenses), and the lower court dismissed this case as moot, too.
The Sixth Circuit reversed. The court held that the plaintiffs' claim for monetary damages continued to be a live dispute, despite Kentucky's accommodation law, because it sought relief for past harms to the plaintiffs that weren't remedied by their eventual receipt of a license. The court noted that a claim for monetary damages for past harms can live on, even if other portions of a suit for declaratory and injunctive relief (or other, related suits for those forms of relief) become moot.
Judge Siler concurred, but added that Davis might argue on remand that she was protected by the Kentucky Religious Freedom Restoration Act. In particular, Judge Siler argued that the district court "should have the first opportunity upon remand to decide whether that or any other provision of the law would protect Davis as a qualified-immunity or absolute-immunity defense under the circumstances."
Tuesday, April 25, 2017
Judge William H. Orrick (N.D. Cal.) issued a nationwide temporary injunction halting President Trump's executive order that sought to clamp down on sanctuary cities.
The ruling was a broadside against the EO, handing the plaintiffs, Santa Clara County and San Francisco, a decisive preliminary victory on nearly all the points they raised. But at the same time, the ruling is preliminary, and holds only that the plaintiffs are likely to succeed on the merits of their various claims. It's also certain to be appealed.
The ruling comes closely on the heels of the Justice Department's move last week to begin enforcement of the EO by informing certain "sanctuary cities" that they could lose DOJ Justice Assistance Grants if they failed to provide "documentation and an opinion from legal counsel" that they were in compliance with Section 1373.
But the lawsuit challenged the EO on its face, and not just as applied to DOJ JAG grants. And that turned out to be critical in Judge Orrick's decision. In particular, Judge Orrick held that the plain language of the EO threatened all "federal grants" to sanctuary cities, notwithstanding the administration's attempts to narrow that language. (Judge Orrick flatly rejected attempts to limit the EO, taking judicial notice of a variety of public statements of President Trump and administration officials about the breadth of the program.) Because the EO put all "federal grants" on the chopping block, Judge Orrick said that it swept way too far. (Judge Orrick wrote that nothing in the injunction prohibited the administration from enforcing lawful conditions on federal grants, or enforcing Section 1373, or designating jurisdictions as "sanctuary jurisdictions.")
Judge Orrick ruled that the plaintiffs were likely to succeed on the merits of their separation-of-powers claim, because "Section 9 [of the Order, which conditions federal grants on compliance with Section 1373] purports to give the Attorney General and the Secretary the power to place a new condition on federal funds (compliance with Section 1373) not provided for by Congress." This was particularly troubling, because Congress has several times declined to put like conditions on other federal immigration laws.
Judge Orrick also ruled that the plaintiffs were likely to succeed on the merits of their Spending Clause claim, because (1) the conditions in the EO were not unambiguous (because it didn't exist when the states signed up for many of their federal grants, and because so much of the language is vague), (2) there's not a sufficient nexus between the federal funds at issue (from any federal grant) and compliance with Section 1373, and (3) the EO is coercive (because it could deny to local governments all their federal grants).
Judge Orrick also ruled that the plaintiffs were likely to succeed on their Tenth Amendment challenge (because the EO would compel state and local governments "to enforce a federal regulatory program through coercion" and require state and local jurisdictions to honor civil detainer requests), their void-for-vagueness challenge (because so much of the EO is, well, vague), and their Due Process claim (because the EO contains no process before the feds could withhold already-issued federal grants).
In short, Judge Orrick ruled for the plaintiffs on all their claims. Just one went the other way: Judge Orrick declined to issue an injunction against President Trump himself.
Despite the lofty separation-of-powers and federalism issues that were (and are) at the core of the case, a good chunk of the ruling dealt with justiciability. Judge Orrick ruled that the plaintiffs had standing (because they suffered current budget uncertainty or a required change in policies to comply with the EO) and that the claims were ripe (because of the threatened injury, under MedImmune, Inc. v. Genentech).
Friday, April 21, 2017
The Department of Justice sent nine letters today reminding "sanctuary" jurisdictions that "as a condition for receiving certain financial year 2016 funding from the Department of Justice, each of these jurisdictions agreed to provide documentation and an opinion from legal counsel validating that they are in compliance with Section 1373." Here's DOJ's press release.
The move is the administration's latest effort to clamp down on sanctuary cities. We posted on President Trump's original EO here.
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."
The DOJ letters to sanctuary cities say that the FY 2016 Edward Byrne Memorial Justice Assistance Grant Program conditions federal funds on compliance with this provision. That Program provides funds for law enforcement and related purposes. It amounts to a relatively modest sum of federal support for the targeted jurisdictions and probably runs well short of all federal spending in these jurisdictions. (President Trump's EO, in contrast, targets all "Federal grants, except as deemed necessary for law enforcement purposes by the Attorney General or the Secretary.")
These features may make it more difficult for targeted jurisdictions to challenge DOJ's latest move and any subsequent move to withhold federal funds as applied to JAG Program grants. (If the JAG Program makes this condition specific, and if immigration enforcement is sufficiently related to the purposes of the JAG grant for any given targeted jurisdiction, and if the amount of money involved does not turn pressure into compulsion, then a move to withhold JAG funds from jurisdictions that don't comply may withstand judicial scrutiny.)
But because President Trump's EO remains on the books with its full breadth, jurisdictions can still lodge facial challenges against the administration to block the full force of the EO. And the pending cases challenging the EO on its face are likely to move forward, despite this latest DOJ move.
Thursday, April 20, 2017
The Fifth Circuit today threw out a criminal case brought by Texas against a federal FBI deputy, citing Supremacy Clause immunity. The ruling means that the state's case against the officer ends, although the court noted that federal authorities could still bring a federal case.
The case arose when Charles Kleinert, specially deputized by the FBI to investigate bank robberies, accidentally shot a person during an investigation. The victim showed up to a bank that was closed after an actual robbery. When Kleinert, who was in the bank, came out, the victim gave Kleinert a false name and allegedly exhibited other suspicious behavior. When Kleinert called him on the false name, the victim fled. Kleinert followed and eventually nabbed the victim. In the course of a struggled, Kleinert's weapon discharged and struck and killed the victim.
A Travis County grand jury indicted Kleinert for manslaughter. Kleinert removed the case to federal court (under the "federal officer removal" statute) and moved to dismiss, arguing that he was immune from state prosecution under Supremacy Clause immunity. The district court agreed and dismissed the case; the Fifth Circuit affirmed.
Supremacy Clause immunity prohibits a state from punishing (1) a federal officer (2) authorized by federal law to perform an act (3) who, in performing the act, did no more than what the officer subjectively believed was necessary and proper and (4) that belief was objectively reasonable under the circumstances.
The Fifth Circuit held that Kleinert was authorized by federal law to pursue and arrest the victim, because, under the circumstances, he had probable cause that criminal activity was afoot. The court held that he had a subjective belief that his action was necessary and proper, because, under the circumstances, he acted consistently with his training, without any animus toward the victim. And the court said that Kleinert's belief was objectively reasonable, because his acts were consistent with what others would have done. (The state conceded that Kleinert was a federal officer.)
The ruling ends the state prosecution. But the court specifically noted that Kleinert might still be subject to federal prosecution.
Wednesday, April 19, 2017
The Center for Responsibility and Ethics in Washington sought to tighten standing by adding plaintiffs to its complaint against President Trump for violations of the Emoluments Clause. We previously posted on the case here.
CREW's standing to sue was sure to be an early issue, even a roadblock, in the case. So the organization added plaintiffs ROC United, a nonprofit corporation with restaurant members and a restaurant owner in its own right, and an individual who books events for Washington hotels. Both new plaintiffs argue that President Trump, by doing and gaining business at his own hotels and restaurants in violation of the Emoluments Clause, is harming their bottom line by taking away business.
The move is designed the tighten standing. In order to sue in federal court, a plaintiff has to show that they suffered an actual or imminent concrete and particularized injury, that the defendant's alleged actions caused the injury, and that their requested relief would redress their injury. The amended complaint almost surely satisfies these requirements, but we're still likely to see a motion to dismiss for lack of standing.
Monday, April 17, 2017
The NYT reports that with 99 percent of the votes in, Turkey's constitutional referendum passed 51.3 percent to 48.7 percent.
The referendum shifts Turkey from a parliamentary system to an independent presidential one, among making other changes. On net, the changes shift power to the president (especially in the areas of executive power and judicial appointments), but also build in some checks.
Friday, April 14, 2017
Judge John D. Bates (D.D.C.) ruled today that a student whose painting was displayed at the U.S. Capitol after winning an congressional art competition enjoyed no First Amendment right against the Architect of the Capitol when the Architect took the painting down based on its viewpoint.
Judge Bates said that the painting amounted to government speech, and that it was therefore not protected by the First Amendment.
The ruling is just the latest chapter in a dispute over the painting between a group of Republican lawmakers and law enforcement advocates, and the Congressional Black Caucus.
The case arose when high school student David Pulphus's painting was selected to represent Missouri's First Congressional District in the 2016 Congressional Art Competition. As a result, Pulphus's painting hung, along with other selected works, in the Cannon Tunnel in the U.S. Capitol complex. But this didn't sit well with some members of Congress, who saw the painting as anti-police. They took it upon themselves to remove the painting and deliver it to the office of Congressman William Clay, who represents the First District. After each removal, Clay, whose district includes Ferguson, then took it upon himself to return the painting to its place in the Cannon Tunnel.
Eventually the Architect removed the painting, but did not explain exactly why. Clay and Pulphus then sued, arguing that the removal constituted viewpoint discrimination in a designated public forum and therefore violated free speech.
Judge Bates disagreed. Applying three factors from Walker v. Sons of Confederate Veterans and Pleasant Grove City v. Summum, Judge Bates said (1) that the "traditional use of the medium" was "inconclusive," but (2) that "[t]he government, then, is understood by the public as speaking through that exercise of choosing which works are displayed in the art competition," and (3) that the Architect "retains editorial control over the art submitted in the competition." He concluded that Pulphus's piece therefore amounted to government speech (and not private speech in a limited public forum), and therefore enjoyed no First Amendment protection.
Judge Bates also rejected the plaintiffs' vagueness challenge, writing that "[w]hen the government speaks, it is free to promulgate vague guidelines and apply them arbitrarily."
Thursday, April 13, 2017
Wednesday, April 12, 2017
Update: Might've spoken a little too soon. President Trump told the WSJ yesterday that he's still considering withholding subsidies.
The Trump Administration will continue to pay subsidies to health insurance companies on the exchanges under the Affordable Care Act, despite a district court ruling against the Obama Administration that they are illegal, according to the NYT.
The decision will help to keep the exchanges operating.
Recall that Judge Rosemary Collyer (D.D.C.) ruled that the Obama Administration illegally spent money on the subsidies to ACA exchange insurers without a valid congressional authorization.
The ACA provides for the subsidies, but Congress didn't fund them. President Obama went ahead and paid them, anyway.
The lawsuit, brought by congressional Republicans, is on appeal. The Trump Administration hasn't announced its position in the litigation, beyond saying that it'll continue to fund the subsidies for now.
Aramis Ayala, the State Attorney for Florida's Ninth Judicial Circuit, filed suit yesterday against Governor Rick Scott over Scott's effort to remove Ayala from 23 pending homicide cases. Scott issued a series of executive orders purporting to transfer the cases to a neighboring state attorney after Ayala announced that she would not seek the death penalty in some of those cases.
Ayala's lawsuit raises state constitutional separation-of-powers issues, pitting the independently-elected State Attorney's authority to prosecute cases within her jurisdiction against the Governor's authority to execute the law.
In particular, Ayala argues in her state supreme court writ of quo warranto that Scott's executive orders violate the state attorney's power to prosecute all cases in that circuit. Article V, Section 17 of the Florida Constitution provides that the state attorney for each judicial circuit "shall be the prosecuting officer in all trial courts in that circuit." The constitution contains two exceptions, but neither applies. Ayala argues that Scott's executive orders violate the provision vesting her office alone with prosecutorial authority within her district.
Ayala also claims that the governor's constitutional powers to "take care that the laws be faithfully executed" and "supreme executive power" don't authorize his actions, because the Florida Constitution specifically allotted her powers in Article V, Section 17.
Finally, Ayala contends that Scott's moves violate functional separation of powers. Drawing on Florida's strict separation clause ("No person belonging to one branch of government shall exercise any powers appertaining to either of the other branches unless expressly provided herein."), Ayala says that Scott's executive orders infringe on her role as a quasi-judicial officer and on the state judiciary itself:
Here, Scott has purported to remove Ayala entirely from the cases that his orders apply to. So under the Governor's orders, not only would Ayala not decide whether to seek the death penalty here, she also would not participate in other crucial aspects of the case, including ensuring compliance with Brady v. Maryland, safeguarding a fair trial, and considering the interests of the victims and the public. Those latter functions are precisely those that an independent judiciary protects and that the executive may not meddle in.
Monday, April 10, 2017
The Honorable Neil M. Gorsuch was sworn in this morning by Chief Justice John G. Roberts, Jr., in a private ceremony in the Justices' Conference Room at the Supreme Court. Later, Justice Kennedy administered the Judicial Oath at a public ceremony at the White House. Here's the Court's brief press release. Justice Gorsuch's bio is on the Court's site.
Photo: Franz Jantzen, Collection of the Supreme Court of the United States
Friday, April 7, 2017
For a deeper dive into the constitutional law, check out these:
Here are links to the cited OLC memos:
For a broader, historical approach, check out this CRS report on Congressional Authority to Limit U.S. Military Operations.
Wednesday, April 5, 2017
The Third Circuit granted qualified immunity to local government officers against plaintiffs' First Amendment claims that the officers retaliated against them for exercising their speech and petition rights and directly violated their right to petition the government.
The ruling most likely ends this case.
The case arose when the Mirabellas, husband and wife who happen to be attorneys, got into a dispute with their neighbors over the neighbor's use of protected wetlands. The Mirabellas sought local government assistance in the dispute, but government officials sided with the neighbors. The Mirabellas then threatened to sue the neighbors and join the local government. So local government officials wrote to the Mirabellas that they were barred from communicating with the government or government officials (except the township attorney), and that government counsel should seek sanctions against the Mirabellas if they sued.
The Mirabellas did sue--but on First Amendment grounds, and not the underlying land-use dispute. They alleged that government officials retaliated against them for communicating with the government and directly violated their right to petition the government.
The Third Circuit ruled that the officials enjoyed qualified immunity and dismissed both claims. The court ruled that the officials did, in fact, retaliate against the Mirabellas for exercising their free speech and petition rights (based on the no-contact communication, but not on the communication threatening sanctions), but that the law wasn't clearly established at the time. In particular, the court said that "the right to be free from a retaliatory restriction on communication with one's government, when the plaintiff has threatened or engaged in litigation against the government" wasn't clearly established at the time.
The court similarly ruled that the officials violated the plaintiffs' right to petition the government, but that that right wasn't clearly established, either. The court said that "the right to be free from a restriction on communicating with one's government, when the plaintiff has threatened or engaged in litigation against the government" wasn't clearly established.
In defining the rights in this very specific way for purposes of the clearly-established prong of the qualified immunity test, the court said that Ashcroft v. al-Kidd prohibited it from "defin[ing] clearly established law at a high level of generality."
The court said that it wanted to address both prongs of the qualified immunity test--actual constitutional violation and clearly established--in order to provide some guidance on the actual contours of the rights at issue. (The court could have ruled the same way by addressing the clearly-established prong only, and punting on the actual constitutional violation prong.)
Friday, March 31, 2017
The D.C. Circuit ruled today in the long-running Dhiab case that media intervenors had no First Amendment right to access redacted and videotapes classified as "secret" of force-feedings at Guantanamo Bay. The ruling overturns the district court order releasing the tapes after government redaction and ensures that the tapes won't be released (at least unless the full D.C. Circuit or Supreme Court reverses). We last posted on the case here.
The court rejected the internors' First Amendment claim under Press-Enterprise Co. v. Superior Court. The court distinguished that case, holding that it dealt with sealed testimony and exhibits in a murder case (not classified national security information, as here) and that it was a criminal prosecution (and not a habeas corpus case, as here). As to the former difference, the court noted that national security information is traditionally well protected, citing the State Secrets Privilege from Reynolds and Totten, the closed hearings in Guantanamo habeas cases, and the classified-material exception in FOIA. As to the latter difference, the court reviewed the history and concluded that "[i]n habeas corpus cases, there is no tradition of public access comparable to that recounted in Press-Enterprise II with respect to criminal trials."
The court went on to say that even if the intervenors had a First Amendment right of access to the tapes, the government's interests in protecting national security justified withholding them. In particular, the court said that the government provided sufficient evidence that the tapes could threaten security at Guantanamo Bay, incite violence against American troops abroad, and serve as propaganda to recruit fighters.