Sunday, February 9, 2014

Eleventh Circuit Upholds Restriction on Funding of Political Activities by Public Employees


The Eleventh Circuit last week in Alabama Education Association v. Governor of Alabama reversed the district court's grant of a preliminary injunction against enforcement of a state law prohibiting public employees from arranging salary deductions for payments to organizations for use for "political activities."  The ruling means that the case goes back to the district court, with a heavy thumb on the scale in favor of upholding the law against the plaintiffs' First Amendment challenge.

The law at issue, Alabama Code Sec. 17-17-5, prohibits public employees from "arrang[ing] by salary deduction or otherwise" for payments to (1) political action committees or (2) organizations that use any portion of the dues for "political activity."  (Emphasis added.)  The Act goes on to define "political activity" as

a. Making contributions to or contracting with any entity which engages in any form of political communication, including communications which mention the name of a political candidate.

b. Engaging in or paying for public opinion polling.

c. Engaging in or paying for any form of political communication, including communications which mention the name of a political candidate.

d. Engaging in or paying for any type of political advertising in any medium.

e. Phone calling for any political purpose.

f. Distributing political literature of any type.

g. Providing any type of in-kind help or support to or for a political candidate.

The Alabama Education Association, its political action committee A-VOTE, and some individual members brought a pre-enforcement challenge, arguing that the Act violated free speech on its face.  In particular, they claimed that the "or otherwise" language rendered the Act overly-broad (because it would limit private forms of payment, not facilitated by the government, for political activities), and that the phrase "political activity" was unconstitutionally vague.

The Eleventh Circuit reversed the lower court's preliminary injunction against enforcement of the Act.  The Eleventh Circuit's ruling hinged on the answers to questions its certified to the Alabama Supreme Court, asking the state court to define "or otherwise" and "political activities."  According to the Alabama Supreme Court, the phrase "or otherwise" prohibited only the use of state mechanisms to support politically active organizations, and not private forms of payment not facilitated by the government.  Citing Ysursa v. Pocatello Educ. Ass'n, the Eleventh Circuit held that "[t]his compels the conclusions that the Act only declines to promote speech, rather than abridging it, and that the Act does not implicate any constitutionally protected conduct, much less a substantial amount."  The court said that the plaintiffs therefore were unlikely to succeed in their over-breadth challenge.

As to the vagueness challenge, the Eleventh Circuit said that whatever the meaning of "political activity," it at least included activity in which the plaintiffs were involved--that is, electioneering activities--and that therefore under Village of Hoffman Estates v. Flipside, the plaintiffs were unlikely to succeed on their void-for-vagueness challenge.

February 9, 2014 in Cases and Case Materials, First Amendment, News, Speech | Permalink | Comments (0) | TrackBack (0)

Tuesday, February 4, 2014

Fourth Circuit Strikes Proof-of-Religion Requirement in Prison


The Fourth Circuit ruled in Wall v. Wade that a Virginia prison's requirement that inmates show physical indicia of their faith before participating in Ramadan violated the Free Exercise Clause.

The case arose when Wall, an inmate at the Red Onion State Prison, or ROSP, in Pound, Virginia, sought a religious accommodation to participate in Ramadan--special meals served before sunrise and after sunset.  But ROSP policy required prisoners to show "physical indicia" of their faith--such as a Quran, Kufi, prayer rug, or written religious materials obtains from the prison Chaplain's office--before receiving the accommodation.  Wall had none of these, because his "physical indicia" were lost when he was transferred to ROSP from another facility.  So officials denied his accommodation.

Wall nevertheless skipped breakfast and concealed a portion of his meal in his cell to save until after sunset.  ROSP staff discovered the food and threatened to charge Wall with possessing contraband.  As the court wrote, "Faced with choosing between starvation and sanctions, Wall ate during the day and violated his religious beliefs."

Wall filed formal complaints and later sued, arguing that ROSP policy as applied to him violated RLUIPA and the Free Exercise Clause.  The district court dismissed the case, but the Fourth Circuit reversed.

The court held that the policy violated the four-part test in Turner v. Safley:

First, demanding specific physical items as proof of faith will rarely be an acceptable means of achieving the prison's stated interest in reducing costs.  Strict application of such a rule fails even a rational connection requirement. . . .

[Second, i]t is clear that Wall was absolutely precluded from observing Ramadan because of the defendants' actions. . . .

[Third, w]e are not satisfied that the defendants have sufficiently explained how a less restrictive policy would have imposed a significant burden on prison resources. . . .

Finally, we are satisfied that there existed "easy[] [and] obvious alternatives" to the challenged regulation.

The court ruled that Wall's rights were "clearly established," and that ROSP officials therefore did not enjoy qualified immunity.

The court also rejected the claim that Wall's case was moot in light of the Prison's changed policy.  Applying the "voluntary cessation" doctrine, the court wrote,  "We have no difficulty concluding that the defendants failed to meet their "heavy burden" of establishing that it is not "absolutely clear" the 2010 Ramadan policy will not be reinstated." 

February 4, 2014 in Cases and Case Materials, Free Exercise Clause, Fundamental Rights, News, Religion | Permalink | Comments (0) | TrackBack (0)

Thursday, January 30, 2014

Fourth Circuit Upholds Fannie and Freddie Tax Exemption

The Fourth Circuit ruled this week in Montgomery County, Maryland v. Federal National Mortgage Association that Fannie Mae and Freddie Mac enjoy statutory immunity certain state and local taxes--and that this congressionally granted immunity is not unconstitutional.

The ruling is a rejection of some of the more aggressive states'-rights theories that we've heard in other contexts.  It underscores federal supremacy, even in the area of state and local taxes.  It's not a surprising ruling, but the court's flat rejection of certain of the plaintiffs' states-rights arguments is notable.

The case arose out of Fannie's and Freddie's refusal to pay state and local transfer and recording taxes on foreclosed properties that they sought to sell.  Fannie and Freddie cited their federal statutory exemption, which exempts Fannie and Freddie generally from state and local taxes, "except that any real property of [either entity] shall be subject to State, territorial, county, municipal, or local taxation to the same extent as other real property is taxed." 

The court distinguished between property taxes (not exempt under the statute) and transfer taxes (exempt) and ruled that Fannie and Freddie were exempt under the plain language.

But that's not the interesting part.  The court also ruled that Congress had authority to grant the exemption, and that it didn't run afoul of federalism principles.

The court rejected the plaintiffs' contention that Fannie's and Freddie's property sales were local in nature, and therefore outside Congress's Commerce Clause authority.  "In this case, the overall statutory schemes establishing Fannie Mae and Freddie Mac are clearly directed at the regulation of interstate economic activity."  The court also rejected the novel contention that the sweep of congressional authority here should be judged under a strict scrutiny standard (and not traditional rational basis review), because the exemption intruded into an area of state sovereignty.  "The Counties' analogy to the Fifth and Fourteenth Amendments fails because there is not independent constitutional protection for the States' right to tax."

The court also rejected the plaintiffs' contentions that the exemption violated federalism principles.  The court said that the exemption didn't commandeer states or state officials, that it didn't violate the Tenth Amendment (because Congress acted within its Commerce Clause authority), and that Congress can exempt non-government entities like Fannie and Freddie. 

January 30, 2014 in Cases and Case Materials, Commerce Clause, Congressional Authority, Federalism, News, Tenth Amendment | Permalink | Comments (0) | TrackBack (0)

Seventh Circuit Strikes City Closure Law for Adult Bookstores


The Seventh Circuit ruled this week in Annex Books, Inc. v. City of Indianapolis that the city's law requiring adult bookstores to close between midnight and 10:00 a.m. every day and all day Sunday violated the First Amendment.  The ruling means that Indianapolis can't enforce its law, although it might write a new law that regulates or zones adult bookstores, short of requiring them to close.

The court took particular issue with Indianapolis's weak reason for the law: fewer armed robberies at or near adult bookstores.  The court wrote that the justification isn't supported by data.  And as to the secondary effects doctrine, it said the doctrine doesn't work when the secondary effects impact only the bookstores themselves and their patrons:

The secondary-effects approach endorsed by Almeda Books and Playtime Theatres permits governments to protect persons who want nothing to do with dirty books from harms created by adult businesses; the Supreme Court has not endorsed an approach under which governments can close bookstores in order to reduce crime directed against the businesses that knowingly accept the risk of being robbed, or persons who voluntarily frequent their premises.

The court also took issue with the required closure:

That the City's regulation takes the form of closure is the nub of the problem. . . .  The benefits come from closure: shuttered shops can't be robbed at gunpoint, and they lack customers who could be mugged.  If that sort of benefit were enough to justify closure, then a city could forbid adult bookstores altogether.

January 30, 2014 in Cases and Case Materials, Fifth Amendment, News | Permalink | Comments (0) | TrackBack (0)

Wednesday, January 29, 2014

Protected Speech (& Debate) or Threat?

After the President's State of the Union Address last evening, a NY1 reporter sought comments from United States Representative Michael Grimm  (pictured), but when the reporter attempted to go "off-topic," the Congressperson abruptly ended the interview.  Nothing unusual about that, but then Representative Grimm came back to confront the reporter and the following was caught on camera:

220px-Mike_Grimm"What?" Scotto [the NY1 reporter] responded. "I just wanted to ask you..."

Grimm: "Let me be clear to you, you ever do that to me again I'll throw you off this f-----g balcony."

Scotto: "Why? I just wanted to ask you..."

[[cross talk]]

Grimm: "If you ever do that to me again..."

Scotto: "Why? Why? It’s a valid question."

[[cross talk]]

Grimm: "No, no, you're not man enough, you're not man enough. I'll break you in half. Like a boy."

The video can be viewed on the NY1 site here, with additional reporting including Representative Grimm's subsequent statement.

Threats - - - or "true threats" - - - as a categorical exemption to protected speech is muddled, but most analysis does consider "imminence" as necessary, as in Hess v. Indiana (1973) where the Court found that the statements during a protest about 'taking the street' was directed at some indefinite future time.  Similarly in Virginia v. Black (2003), the Court found that cross-burning was not a sufficient threat, over an eloquent dissent by Justice Thomas.   The classic case of Brandenburg v. Ohio (1969) might also be invoked, although there should be little question that Grimm was engaging in advocacy.

Similarly, Representative Grimm could argue he should be protected by the Speech and Debate Clause, Article I §6 cl. 1, providing that members of Congress shall be privileged from arrest "for any Speech or Debate in either House."  The Court in Gravel v. United States (1972) held that this applied to protect legislators when they were engaged in  integral part of the deliberative and communicative process of legislation - - - which would presumably not include an interview with a reporter.

January 29, 2014 in Current Affairs, First Amendment, News, Speech | Permalink | Comments (3) | TrackBack (0)

Tuesday, January 28, 2014

Can President Obama Increase the Minimum Wage for Government Contractors?

President Obama will announce tonight during his State of the Union speech that he will increase the minimum wage for federal contractors from $7.25 per hour to $10.10 per hour.  He'll do this by executive order, without specific congressional authorization or action, and notwithstanding the statutory minimum wage of $7.25.

Can he do this?

Some Republicans have cried foul, arguing that the action exceeds the President's Article II authority and thus violates the Constitution.  But the action is hardly unprecedented, and probably supported by the President's statutory authority, let alone his constitutional authority over the executive branch.  In other words, the action is probably a valid exercise of power that Congress granted the President, not a usurpation of power in violation of Article II limits.

Republicans who have criticized the action point to the federal statutory minimum wage.  They say that the federal statutory minimum wage, $7.25 per hour, set in the Fair Labor Standards Act, limits Presidential authority to order a higher minimum wage for government contractors.  Indeed, the FLSA says that "[e]very employer shall pay . . . wages . . . not less than . . . $7.25 an hour . . . ."  FLSA Section 206.  

But the FLSA sets a floor.  Nothing in the FLSA prevents an employer from paying more than the minimum.  And nothing prevents the President from ordering executive agencies to require contract bids to include wages higher than the minimum. 

Indeed, another federal statute, the Federal Property and Adminstrative Services Act of 1949, or FPASA, seems specifically to authorize this kind of action.  The FPASA was designed to centralize government property management and to use the same kind of flexibility in the public procurement process that characterizes like transactions in the private sector.  The Act thus gives the President a great deal of authority to prescribe policies related to government procurement.  For example, it says that the President "may prescribe such policies and directives that the President considers necessary to carry out this subtitle. . . ."  40 U.S.C. Sec. 121.

The D.C. Circuit relied on the predecessor to that section in 1979 in AFL-CIO v. Kahn, 618 F.2d 784, to uphold President Carter's EO directing the Council on Wage and Price Stability to establish voluntary wage and price standards for noninflationary behavior for the entire economy.  The Kahn court also recognized that other presidents had imposed similar requirements on government contractors, like President Johnson's EO that federal contractors not discriminate based on age, a GSA regulation requiring that procurement of materials and supplies for use outside the U.S. be restricted to goods produced within the U.S., and President Nixon's EO excluding certain state prisoners from employment on federal contract work.  Indeed, there's a long line of similar requirements imposed by Presidents.

The D.C. Circuit didn't even apply Justice Jackson's Youngstown framework to the problem, because the President simply relied on his statutory authority under the FPASA, not inherent Article II authority.  The court treated the case as an exercise in statutory construction--whether the President had authority under the FPASA.

Given the nature of the minimum wage in the FLSA, and given the President's broad authority to prescribe policies to enhance government contracting, President Obama almost surely has authority to require government contractors to use a higher minimum wage.  And that's not even considering any inherent Article II authority the President may have over government contractors.

That's not to say that Congress doesn't have a check.  If Congress wants to block the President's action, it probably can--by enacting a statute that specifically proscribes a higher minimum wage.  (If Congress were to do this, then inherent Article II power over government contractors, if any, becomes important.)  But current law doesn't seem to do that.

For more, including a nice history and summary of court rulings, check out this report by the Congressional Research Staff, Presidential Authority to Impose Requirements on Government Contractors.

January 28, 2014 in Congressional Authority, Executive Authority, News, Separation of Powers | Permalink | Comments (0) | TrackBack (0)

National Constitution Center Forum on Obamacare Challenges

National Constitution Center President and CEO Jeffrey Rosen recently discussed the constitutional challenges to the Affordable Care Act with Prof. Jonathan H. Adler (Case Western) and Simon Lazarus (Constitutional Accountability Center).  Here's the video:

 

January 28, 2014 in News | Permalink | Comments (0) | TrackBack (0)

Monday, January 27, 2014

Tunisia Adopts New Constitution

Tunisia's National Constituent Assembly yesterday approved a new constitution, one of the most progressive in the region, three years after the overthrow of the long-time ruler Zine el-Abidne Ben Ali.  Al Jazeera reports here; BBC here; the Guardian here; Reuters here.

According to reports, the new document says that Islam is the nation's religion (and forbids "attacks on the sacred"), but it does not require religious law, and it guarantees freedom of religion.  Moreover, it guarantees equality between men and women and protects women's rights.  

The new constitution divides executive authority between a prime minister and president.  Prime Minister Mehdi Jomaa announced earlier that a caretaker cabinet would govern until the country holds elections.

January 27, 2014 in Comparative Constitutionalism, International, News | Permalink | Comments (0) | TrackBack (0)

Friday, January 24, 2014

Court Offers Conditional, Temporary Relief from Contraception Mandate

The Supreme Court today ordered that the government exempt Little Sisters and like organizations from the contraception mandate in Obamacare if the non-profit organization states "in writing that they are non-profit organizations that hold themselves out as religious and have religious objections to providing coverage for contraceptive services."

The ruling is a conditional, partial, and temporary victory for Little Sisters against the government's attempts to accommodate non-profit religious organizations under the contraception mandate. 

Recall that the Little Sisters organization challenged the accommodation procedure for the contraception mandate under the Religious Freedom Restoration Act.  That procedure requires organizations like Little Sisters--that is, non-profit religious organizations, but not religions--to certify to their third-party administrator that they have a religious objection to the contraception mandate in order to escape providing the coverage directly.  If Little Sisters so certified, its insurance administrator would have to provide contraception without direct cost or involvement of Little Sisters, thus building a fire wall between the organization and the contraception coverage.  But Little Sisters argued that the accommodation procedure itself (let alone the contraception mandate) violated its religious freedom, because the certification procedure amounted to authorizing a third party to provide contraception in violation of the group's religious beliefs.

The district court denied the claim.  Little Sisters appealed and filed for an injunction pending appeal.  The Tenth Circuit denied the injunction, but Justice Sotomayor, the Tenth Circuit Justice, issued a stay against the government.  The Court's order today represents the views of the full Court.

The order grants an injunction, but only conditionally, and only temporarily.  It says that Little Sisters has to certify to the Secretary of HHS that it's a non-profit and that it has a religious objection to the contraception mandate.  Moreover, it only grants an injunction "pending final disposition of the appeal by the United States Court of Appeals for the Tenth Circuit"--that is, until the Tenth Circuit issues its final ruling.  (That's not to say that the injunction couldn't be renewed pending appeal to the Supreme Court.)

The effect of today's order is to allow Little Sisters to avoid the contraception mandate entirely (as compared to simply putting it on its third-party insurer or administrator, as under the government's certification accommodation) if they properly certify to the Secretary of HHS. 

The Court was careful to say that its ruling today isn't a sign how the Court feels about the merits.

Here's the entire text:

The application for an injunction having been submitted to Justice Sotomayor and by her referred to the Court, the Court orders: If the employer applicants inform the Secretary of Health and Human Services in writing that they are non-profit organizations that hold themselves out as religious and have religious objections to providing coverage for contraceptive services, the respondents are enjoined from enforcing against the applicants the challenged provisions of the Patient Protection and Affordable Care Act and related regulations pending final disposition of the appeal by the United States Court of Appeals for the Tenth Circuit.  To meet the condition for injunction pending appeal, applicants need not use the form prescribed by the government and need not send copies to third-party administrators.  The Court issues this order based on all of the circumstances of the case, and this order should not be construed as an expression of the Court's views on the merits.

January 24, 2014 in Cases and Case Materials, News, Religion | Permalink | Comments (0) | TrackBack (0)

Wednesday, January 22, 2014

Presidential Commission on Election Administration Issues Recommendations

President Obama met today with the Presidential Commission on Election Administration, a commission established after the President pledged in hi2 2013 State of the Union address to seek ways to provide better access to the polls.  The Commission, headed by Robert Bauer and Benjamin Ginsberg, just issued its Report and Recommendations, including these key recommendations for state and local officials:

 

 

 

  • Modernize the voter registration process through expansion of on-line voter registration and state collaboration in improving the accuracy of voter lists;
  • Expand early voting days;
  • Adopt new techniques to manage polling places efficiently; and
  • Pave the way for the adoption of new technologies for voting.

Here's a video of President Obama's remarks at the meeting:

 

January 22, 2014 in Elections and Voting, News | Permalink | Comments (0) | TrackBack (0)

Bipartisan Bills Introduced to Amend Voting Rights Act

Senator Patrick Leahy (D-VT) and Representatives Jim Sensenbrenner (R-WI) and John Conyers (D-MI) introduced legislation last week that would amend the Voting Rights Act and recalibrate the coverage formula for preclearance.  The legislation responds to the Supreme Court's ruling last summer in Shelby County v. Holder, striking Section 4(b) of the VRA, the coverage formula for the preclearance requirement.  That ruling left Section 5 preclearance nearly a dead letter (although litigants could still seek to have a court order a jurisdiction to bail-in to preclearance under Section 3). 

Our Shelby County coverage is here and here (with links to most of our other posts on the case).

The bills would update the coverage formula to include states that have 5 or more voting rights violations during the previous 15 years and political subdivisions that have 3 or more voting rights violations during the previous 15 years.  (Coverage would continue for 10 years, unless the jurisdiction gets a court order releasing it.)  This new formula would cover Georgia, Louisiana, Misissippi, and Texas, but not Alabama, Arizona, Florida, North Carolina, South Carolina, and Virginia. 

The bills also contain a number of other provisions, perhaps most notably expanding Section 3 bail-in so that litigants can ask a court to bail-in a jurisdiction when that jurisdiction has intentionally discriminated (as now) and for any other violation of the VRA.  Ari Berman over at The Nation has a nice summary.

The new provisions will undoubtedly be challenged when and if they're enacted.  On the one hand, they address a major concern of the Court in Shelby County: they update the coverage formula to use more current violations as the basis for coverage.  But on the other hand, they still treat states differently (and potentially run afoul of the Court's new-found "equal sovereignty" doctrine), and the state-wide formula does not account for actual voter turn-out (although the political subdivision formula does) and neither formula addresses the number of elected officials--data that the Court found at least relevant in its ruling.

January 22, 2014 in Cases and Case Materials, Congressional Authority, Elections and Voting, Federalism, Fifteenth Amendment, Fourteenth Amendment, News, Race, Recent Cases, Reconstruction Era Amendments | Permalink | Comments (1) | TrackBack (0)

Tuesday, January 21, 2014

Public-Sector Fair Share Appears to be Safe

 The Supreme Court heard oral arguments today in Harris v. Quinn, the case testing whether fair-share fees for non-union in-home care providers in the Illinois Medicaid program violate the First Amendment.  (Our argument preview is here.)  The Court in Abood v. Detroit Board of Education previously upheld public-sector fair-share fees to support a union's collective bargaining activities in the interests of preventing free-riders on a union's activities and promoting workplace peace.  But this case put Abood directly in the Court's cross-hairs, as the petitioners argued to overturn the decades-old case.

If today's arguments are any indication, that seems an unlikely result.

Still, it's not entirely clear what the Court will do with the case.  For one thing, there was just a lot of confusion about it.  For example, on the question whether the union's work here (in the state's Medicaid program) represented advocacy on a public matter (thus strengthening the non-members' claims), no clear position emerged.  Here's an exchange between Justice Kagan and the attorney for the petitioners (the home-care workers):

Justice Kagan: But you're not objecting, I think, to the union as a whole.  What you're objecting to is an individual employee having to support that activity.  The scale is no different.  It's an individual employee.

Mr. Messenger: Yes, it's an individual employee being forced to support that expressive activity.  So the question becomes: What expressive activity are they being forced to support?  And when you're speaking of changing an entire government program, for example, Medicaid rates across the board, that is a matter of public concern.  That is a matter of lobbying or political --

Justice Kagan: But that's exactly what the individual employee in Justice Scalia's hypothetical is arguing for.  He wants wage rates to be changed across the board.  He knows they're not going to be changed just for him.  He wants higher wage rates.

Mr. Messenger: But, again, under this Court's private--under the public conern test, an individual simply speaking to that usually does not rise to a matter of public concern.

Chief Justice Roberts jumped in during the respondents' argument to underscore the problem.  He made a point that under the state's position one union's advocacy for increased Medicaid rates might be an issue of public concern (as in a teacher's union), but another union's advocacy for the same incrased Medicaid rates is a private employment issue (as here), suggesting that that can't be. 

Justice Breyer quickly rescued the respondents and outlined the opposite position--"Collective bargaining with any employer, meat packers, hours, safety depends on hours, always can involve public interest questions"--arguing that the Court shouldn't be in the business of this kind of line-drawing.

The one to watch here may be Justice Kennedy.  He suggested at one point that nearly all of this union's activities were public matters, but at a different point that the Court's jurisprudence provides (at least) a partial solution: non-members can be compelled to pay fair-share fees for those activities that might involve free-riding, but not for other activities for which they don't receive a benefit.  (Justice Scalia piped in to remind us that under the Court's jurisprudence non-members can opt-out of fees for benefits that they don't enjoy.)  The problem here may be sorting out which kind of benefit is which.

Justice Alito underscored this problem when he pressed the state on a hypothetical non-union teacher who has to pay a fair-share fee to support the union's advocacy of the tenure system.  But the teacher disagrees with the union's position on this, so has to pay another organization an equal amount to represent his or her views--just to counteract the advocacy supported by his or her compelled fair-share fee.  Justice Kennedy posed a similar hypo.  The state responded that here the fair-share fee supports union activity that benefits all workers, but it's not clear that a majority bought it, or, if they did, that they weren't also thinking beyond the narrow facts of this case.

The case also involved several puzzles, both practical and jurisprudential, that seem to put the petitioners' positions at odds with common sense and doctrine.  Here's Justice Sotomayor raising one with the petitioners:

Justice Sotomayor: Is there a problem for the State to say--the union, to organize has a certain amount of costs.  So putting aside fair representation laws, could the State say, this is what we're going to pay police officers, 100 dollars, but we're going to pay union members 110 to reimburse them for the cost of negotiation.  Would that be OK?

Mr. Messenger: Yes.

 Here's Justice Kagan raising another:

Justice Kagan: Because here's the thing: That in the workplace we've given the government a very wide degree of latitude and there's much that the government can do.  It can fire people.  It can demote people for things that they say in the workplace, not for things that they say as a citizen . . . .

So you're saying, well, the government can punish somebody for saying something, but the government in the exact same position cannot compel somebody to say something they disagree with.  And I want to know what's the basis for that distinction, which it seems to me is just as hard as -- as if you were answering under the petition clause.

There was also significant confusion about whether the state's flexibility in negotiating wages--and therefore why the union's participation is necessary.  (If the wages are set--by the Medicaid program, for example--what benefit does the union bring?) 

Justices Scalia and Alito both expressed some skepticism over the state's intent in requiring fair-share, Justice Alito suggesting that it was Governor Blagojevich's reward to the union for a huge campaign contribution.

In rebuttal, Justice Scalia pressed the petitioners about free-riding and what their position could do to unions; Justice Kagan pressed them about what their position would do to "thousands and thousands" of public contracts that include fair-share provisions.  Justice Kagan earlier put a finer point on the case's significance and with the help of respondents' counsel told us just what's at stake:

Justice Kagan: So, Mr. Messeenger, even on the compulsory fees, I mean, what strikes me is that this is -- I'm just going to use the word here, it is a radical argument.  It would radically restructure the way any workplaces across this country are -- are run.

And let me just put it to you this way and ask if you agree with this -- with this statement.  Since 1948, since the Taft-Hartley Act, there has been a debate in every State across this country about whether to be a right-to-work State and people have disagreed.  Some States say yes, some States say no.  It raises considerable heat and passion and tension, as we recently saw in Wisconsin.  And -- but, you know, these are public policy choices that States make.

And is it fair to say that what you're suggesting here, your argument, is essentially to say that for 65 years, people have been debating the wrong question when they've been debating that, because, in fact, a right-to-work law is constitutionally compelled?

Mr. Messenger: In the public sector, yes . . . .

January 21, 2014 in Association, Cases and Case Materials, First Amendment, Fundamental Rights, News, Oral Argument Analysis | Permalink | Comments (1) | TrackBack (0)

Monday, January 20, 2014

Daily Listen: Newly Discovered Audio of MLK Speech


The New York State Museum has released the only known audio recording of Dr. Martin Luther King Jr.'s 1962 speech commemorating the centennial anniversary of the Preliminary Emancipation Proclamation.  The audio was discovered on the "lost technology" of "reel to reel recording" during an ongoing project by the museum to "digitize the thousands of audio and video recordings" in "collections of more than 15 million objects and artifacts."

The audio and other materials area available at the Musuem's website here.

A preview and explanation is in the video below:

 

January 20, 2014 in Current Affairs, Equal Protection, Fourteenth Amendment, History, News, Race, Web/Tech | Permalink | Comments (0) | TrackBack (0)

Sunday, January 19, 2014

Court Takes on Fair Share Union Dues (Again)

The Supreme Court will hear oral arguments on Tuesday in Harris v. Quinn, the case testing whether a state law requiring non-union homecare personal assistants to pay union dues for the assistants' union's colleective bargaining activities violates the First Amendment.  The case threatens the decades-long rule that non-union public employees can be compelled to pay union dues for the union's collective bargaining activities (but not the union's political activities), under Abood v. Detroit Board of Education.  The Court presaged this threat two Terms ago in SEIU v. Knox.

Here's a selection from my preview in the ABA Preview of United States Supreme Court Cases, with permission:

FACTS

The Illinois Department of Human Services operates two Medicaid-waiver programs that subsidize the costs of home-based assistants for disabled individuals or patients who might otherwise face institutionalization. The programs allow Medicaid patients to live in their own homes with the help of personal assistants. One of these programs, the Home Services Program, is administered by the Division of Rehabilitative Services; the other program, the Home Based Support Services Program, is administered by the Division of Developmental Disabilities. The lower court and the parties call these programs the “Rehabilitation Program” and the “Disabilities Program,” respectively.

Under the Rehabilitation Program, a patient works with a counselor to develop an individual service plan. The plan specifies “the type of service(s) to be provided to the patient, the specific tasks involved, the frequency with which the specific tasks are to be provided, the number of hours each task is to be provided per month, [and] the rate of payment for the service(s).” The service plan must be certified by the patient’s physician and approved by the state. The patient is then free to select almost any personal assistant who meets the qualifications related to work experience, training, and skills set by the state. The personal assistant signs an employment agreement directly with the patient, but the terms of the agreement are set by the state. The state also sets wages and pays the personal assistant, withholding Social Security and federal and state taxes. (Personal assistants are also sometimes called homecare providers.)

The Disabilities Program functions similarly, although the record is less developed as to the specific relationship between a personal assistant and the state.

In the mid-1980s, personal assistants in the Rehabilitation Program sought to unionize and to bargain collectively with the state. The State Labor Relations Board found that it lacked jurisdiction over the personal assistants, however, because the state was not their sole employer. As a result, personal assistants could not unionize.

In 2003, the state amended the Illinois Public Labor Relations Act to designate “personal care attendants and personal assistants working under the Home Services Program” as state employees for the purpose of collective bargaining. Governor Rod Blagojevich then issued an executive order directing the state to recognize an exclusive representative of Rehabilitation Program personal assistants if they designated one by a majority vote and to engage in collective bargaining over all employment terms within the state’s control. The Rehabilitation Program personal assistants later voted to designate SEIU Healthcare Illinois & Indiana as their collective bargaining representative with the state. The union and the state negotiated an agreement that set pay rates, created a health benefits fund for personal assistants, and established a joint union-state committee to develop training programs. The agreement also contained a “fair share” provision that required all personal assistants who were not members of the union “to pay their proportionate share of the costs of the collective bargaining process, contract administration and pursuing matters affecting wages, hours and other conditions of employment.”

In 2009, Governor Pat Quinn issued an executive order directing the state to recognize an exclusive representative for the Disabilities Program personal assistants if they designated one by majority vote. A majority of Disabilities Program personal assistants, however, rejected union representation. (This vote was not necessarily the final decision on representation. Under state law, a union can request a new vote in the future and can even bypass a vote altogether if it collects a sufficient number of union cards from the personal assistants.)

Personal assistants in both programs sued. Non-union personal assistants in the Rehabilitation Program claimed that the fair-share fees that they were required to pay violated the First Amendment by compelling them to associate with the union. Personal assistants in the Disabilities Program claimed that they were harmed by the mere threat of an agreement requiring fair-share fees.

The district court dismissed the Rehabilitation Program personal assistants’ case on the merits, and it dismissed the Disabilities Program personal assistants’ case because they lacked standing and because their case was not ripe. The United States Court of Appeals for the Seventh Circuit affirmed. (The Seventh Circuit recognized, however, that the Disabilities Program personal assistants’ case could become ripe in the future.) This appeal followed.

CASE ANALYSIS

Compulsory union fees, or fair-share fees, implicate the First Amendment because they represent a form of compelled expressive association. In other words, fair-share fees require non-union-members to support union activities and expression with which they disagree. In particular, the fees require non-members to pay for union expression (in the form of fair-share fees to support collective bargaining), and thus to associate with that expression, even if they do not support it or wish to associate with it.

Still, the Supreme Court has long upheld requirements that non-union members financially support the costs of collective bargaining. Thus in Railway Employees’ Dep’t v. Hanson, 351 U.S. 225 (1956), the Court declined to enjoin a “union shop” agreement between a railroad company and a union that required all employees (whether unionized or not) to pay union dues as a condition of employment—even though a state constitutional “right to work” provision outlawed it. The Court held that the federal Railway Labor Act permitted the union shop agreement and superseded the state constitutional provision. The Court held that the federal act was justified by Congress’s interest in supporting “industrial peace and stabilized labor-management” and in distributing the costs of collective bargaining to all those who benefited from it. The Court upheld the federal act as an exercise of Congress’s power under the Commerce Clause, and ruled that it did not violate the First Amendment insofar as it permitted compulsory fees for collective bargaining activities.

Later, in International Association of Machinists v. Street, 367 U.S. 740 (1961), the Court read the Railway Labor Act not to extend to mandatory fees to finance the campaigns of candidates for federal and state offices. The Court ruled that while the act may authorize mandatory fees for collective bargaining activities (for the same reasons in Hanson), the act would violate the First Amendment if it authorized mandatory fees for political purposes with which an employee disagreed.

Later yet, the Court in Abood v. Detroit Bd. of Education, 431 U.S. 209 (1977), drew on the interests in Hanson and Street to uphold a state law that allowed an “agency shop” clause in a collective bargaining agreement in the public sector. The Court ruled that the First Amendment did not prohibit an “agency shop” clause in an agreement between the Detroit Board of Education and its teachers’ union that required non-unionized teachers to financial support the union’s collective bargaining activities. The Court drew upon the government interests in Hanson and Street—supporting “industrial peace and stabilized labor-management” and avoiding “free riders” who refuse to contribute to the union while obtaining the benefits of union representation—and held that they were sufficient to justify the intrusion on First Amendment associational rights.

More recently the Court has chipped away at these principles. Most recently, in Knox v. SEIU, 132 S. Ct. 2277 (2012), the Court signaled that it was prepared to reconsider them entirely. In particular, the Court took aim at the “free rider” justification for “agency shop” agreements, saying that it was “generally insufficient to overcome First Amendment objections” and that it “represents something of an anomaly.” The Court left Abood intact, however, even if it also all but foretold Abood’s demise.

The parties frame their arguments against this history.

Pamela Harris, a personal assistant homecare provider who represents the class of personal assistants who are the petitioners in this case, argues first that Abood should be overruled, because the compulsory fees upheld in the case do not meet the “exacting scrutiny” applicable to compelled associations. She claims that Abood was based on a flawed interpretation of earlier case law, that it relied upon an anomalous justification, and that the compulsory fees upheld in Abood were not necessary for the exclusive representation by the union. In particular, Harris says that the Court borrowed the “labor peace” justification for compulsory fees from earlier case law explaining Congress’ authority to invalidate state laws prohibiting union-shop agreements under the Commerce Clause (and having nothing to do with the First Amendment). She claims the Court wrongly applied this justification to its First Amendment, compulsory association analysis in Abood. The net result, she says, is that the Court in Abood wrongly held that “labor peace” (a justification for federal laws under the Commerce Clause) was sufficient to justify compulsory union dues (in the face of the First Amendment). (Harris says that Justice Powell, joined by Chief Justice Burger and Justice Blackmun, recognized this problem in his concurrence in Abood.) Moreover, Harris contends that Abood’s “free rider” rationale for compulsory fees is an “anomaly,” and “generally insufficient to overcome First Amendment objections” (quoting Knox.) And she says that compulsory fees are not a necessary incident of exclusive representation (again drawing on Knox). For these reasons, Harris claims that Abood should be overruled.

Harris argues next that even if the Court declines to overruled Abood, it should sharply limit the case to its narrow facts. She says that Abood should apply only when the government directly supervises individuals in its workplace and when union representation does not involve matters of public concern. Harris claims that neither condition is satisfied here. She says that unlike the public-school teachers in Abood, Illinois homecare providers are not managed by the state (they are managed by the individuals they serve), and that homecare providers therefore do not fall under the Abood rationale. Moreover, she says that the personal assistants’ expressive association through the union is on a matter of public concern, that is, the operations of the state’s Medicaid program, and not merely the terms and conditions of their employment. Harris contends that the state therefore has no “labor peace” rationale for imposing mandatory fees. And Harris contends that in any event the compulsory fees are not necessary to any larger regulatory purpose, as required by Knox. She claims that if Abood were to allow compulsory expressive association here, it would allow the state to designate compulsory advocates to speak for others whose services are funded by a government program, including the medical industry and government contractors, among others—clearly an absurd result, she says.

Finally, Harris argues that personal assistants in the Disabilities Program are entitled to challenge the mandatory fees. Harris says that those providers need only show a substantial risk that they will be harmed. She claims that they did so, because Governor Quinn’s executive order substantially increases the risk that they will be forced to accept exclusive union representation, and to pay union fees.

The state argues that Abood should not be overruled. The state says that Abood follows from Hanson and Street, and that those decisions are rooted in the First Amendment. The state claims that Harris mischaracterizes those decisions as not relying on the First Amendment and “seek[s] to rewrite the many decisions that rely on [Hanson and Street] for their First Amendment analysis.” The state contends that the Court has relied on Abood’s First Amendment analysis in cases upholding mandatory bar dues (Keller v. State of California, 496 U.S. 1 (1990)), mandatory assessments for fruit producers to contribute to the costs of industry advertising (Glickman v. Wileman Brothers & Elliot, Inc., 521 U.S. 457 (1997)), and a mandatory student activity fees (Board of Regents of the University of Wisconsin System v. Southworth, 529 U.S. 217 (2000)). Moreover, the state says that Harris’s claims would threaten the long-held distinction between the government as regulator and the government as employer, because those claims treat the personal assistants’ speech as core political speech on matters of public concern (and not speech over the terms of their employment). (The state points to the Court’s cases on public employee speech, where the Court distinguishes between the government (relatively greater) interests as an employer regulating the speech of its employees and its (relatively lower) interests in regulating the speech of citizens in general, especially core political speech.) Finally, the state claims that Abood and related cases are entitled to stare decisis effect: it says that the Abood rule has not become unworkable, circumstances have not changed since Abood, and both public-sector unions and government have come to rely upon Abood.

Next the state argues that Harris is wrong to claim that its decision to negotiate exclusively with the union alone violates the First Amendment. The state contends that Harris’s argument is foreclosed by Minnesota State Board of Community Colleges v. Knight, 465 U.S. 271 (1984), which, by summary affirmance, sustained a state law granting public employees the right to negotiate through their exclusive representative. Moreover, the state says that granting exclusive representation to the union does not threaten the First Amendment rights of personal assistants, because personal assistants may decline to join the union.

The state argues that Harris’s proposal to limit Abood ignores and minimizes its vital interests. In particular, the state claims that it has an interest in promoting “industrial peace and stabilized labor-management relations” and the need to avoid free-riders. The state says that, contrary to Harris’s position, these interests are “vital” and well sufficient to justify fair-share fees for its employees in these programs that serve the state’s “most vulnerable citizens.” (The state argues that personal assistants are, indeed, its employees, even if they also answer in limited respects to the patients they serve. That’s because the state controls many of the terms and conditions of their employment.) For these reasons, the state claims that its system of collective bargaining satisfies the correct constitutional test, a balancing test (and not strict scrutiny, as Harris would have it.

(SEIU Healthcare Illinois & Indiana, the union that represents the personal assistants in the Rehabilitation Program, presents substantially similar arguments on the constitutionality of the fair-share fees.)

Finally, the state argues that personal assistants in the Disabilities Program have presented only a “hypothetical threat,” and not an injury ripe for adjudication. Moreover, the state says that the personal assistants in the Disabilities Program will not suffer any hardship if judicial resolution of their claim is postponed. (AFCSME Council 31 and SEIU Local 73, the unions that attempted to organize the personal assistants in the Disabilities Program, make substantially the same arguments on justiciability.)

SIGNIFICANCE

Simply stated, this case puts front-and-center the decades-old balance the Court struck in Abood. The Court in that case ruled that fair-share fees do not violate the First Amendment, because the government had sufficiently weighty interests in labor peace and avoiding free-riders. But the Court has chipped away at this principle, most recently in Knox, where the Court went so far as to suggest that it was prepared to reconsider Abood. This case gives the Court that chance.

If the Court overturns Abood, or even if it limits that case, the ruling could deal a serious blow to public sector unions. That’s because fair-share fees are designed to ensure that every employee who gains the benefits of a union’s collective bargaining also shares in the costs of that collective bargaining. In this way, fair-share fees are designed to solve a basic collective action problem: if employees can gain the benefits of collective bargaining without paying the costs, no employee will pay the costs, and the benefits will eventually disappear for all, union or not. Without fair-share fees, public-sector unions would have to carry the weight of non-members without the benefit of their financial support. And with no personal financial incentive to join a union in the first place—why would an employee join a union and pay union dues if he or she could free-ride on the union’s collective bargaining activities?—public union membership and strength will almost surely plummet.

On the other hand, this case gives the Court an opportunity to recalibrate the balance between associational rights and the government’s interests in labor peace and avoiding free-riders—and to privilege the associational rights. In other words, the case gives the Court a chance to better protect the associational rights of non-members. Again, though, this would come at the expense of union strength and the collective bargaining power of all the personal assistants, union or not.

Still, the Court need not go so far. The Court could dodge a ruling on the status of Abood by distinguishing this case on its unique facts. For example, the Court could rule that personal assistants are not employees of the state, and that therefore the state’s interests in Abood do not apply. Or the Court could rule that the personal assistants seek to speak on a matter of pure public concern—lobbying for greater reimbursements under the state’s Medicaid program—and that therefore the mandatory fees warrant greater First Amendment scrutiny than in Abood. Such a ruling would obviously affect these litigants, and other employees and states like them, but it would not (necessarily) upset the basic principles in Abood.

January 19, 2014 in Association, Cases and Case Materials, First Amendment, News | Permalink | Comments (1) | TrackBack (0)

Does Obama's Ban on Lobbyists in Advisory Slots Violate Free Speech?

Schwinn-steven
Steven D. Schwinn, John Marshall Law School

The D.C. Circuit on Friday remanded a case challenging President Obama's ban on registered lobbyists serving on advisory committees.  The case, Autor v. Pritzker, means that the district court will have a second crack at determining whether the ban violates the First Amendment.  The ruling suggests, but does not conclude, that the D.C. Circuit thinks that it does.

Appellants in the case are federally registered lobbyists wishing appointment to an Industry Trade Advisory Committee, or ITAC, a type of advisory committee established under the Trade Act of 1974.  There are sixteen industry-specific ITACs that provide information and advice to the President on trade issues reflecting the viewpoints of the industry.  As a result, ITAC members include representatives from major corporations. 

But President Obama moved to bar lobbyists from serving on ITACs and other advisory committees in order to change "the culture of special-interest access" in Washington.  In particular, he directed "the heads of executive departments and agencies not to make any new appointments or reappointments of federally registered lobbyists to advisory committees."  This meant that the appellants couldn't serve on ITACs.  Appellants sued, arguing that the ban violated the First Amendment--that service on an ITAC would require them to relinquish their free-speech rights.

The D.C. Circuit ruled that their complaint stated a First Amendment claim and that it shouldn't be dismissed.  The court remanded the case for a determination of the First Amendment question.

The court distinguished Minnesota State Board for Community Colleges v. Knight.  In that case, the Court held that a union's ability to exclude non-union-members from participation in "meet and confer" sessions with government employers did not violate the First Amendment.  Here, in contrast, the court wrote that "any burden on Appellants' constitutional rights results directly from the government's decision to bar them from ITAC membership."

The court instead drew on the government-employee speech doctrine.  It ruled that the lobbyist ban might work a deprivation of a valuable benefit, service on a congressionally created ITAC, at the expense of federally registered lobbyists' free-speech rights.  In other words, the ban might violate the unconstitutional conditions doctrine. 

The court remanded the case for a calculation under Pickering of the "balance between the interests of the [appellants] . . . and the interests of the State."  The court wrote,

In doing so, the district court should ask the parties to focus on the justification for distinguishing, as the lobbyist ban does, between corporate employees (who may represent their employers on ITACs) and the registered lobbyists those same corporations retain (who may not).  The court may also want to ask the government to explain how banning lobbyists from committee composed of representatives of the likes of Boeing and General Electric protects the "voices of ordinary Americans."

January 19, 2014 in Cases and Case Materials, Executive Authority, First Amendment, News, Speech | Permalink | Comments (0) | TrackBack (0)

Saturday, January 18, 2014

Daily Read: Jonathan Hafetz on Obama's NSA Speech

In the provocatively titled "Is Obama Failing Constitutional Law?" and subtitled "Talking and tinkering may not be enough to make the old law professor’s surveillance program legal" Law Prof Jonathan Hafetz (pictured below) assesses President Obama's January 17 speech over at Politico.

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Here's Hafetz on the "mixed bag" of Obama's proposed reforms to the FISA court:

 The court currently operates in secret and hears only from the government, contrary to basic principles of due process. Obama said he would ask Congress to create a public advocate to argue for privacy concerns before the FISA court, as his advisory panel urged. But Obama did not clarify whether the advocate’s opportunity to argue would be left within the secret court’s discretion. Obama also rejected the panel’s recommendation to revise the method for selecting the court’s 11 members to create more balance. Presently, Chief Justice John Roberts alone decides the membership.

Worth a read, in addition to our take here and Cyrus Farivar over at Ars Technica.

January 18, 2014 in Criminal Procedure, Current Affairs, Due Process (Substantive), Executive Authority, First Amendment, News, Profiles in Con Law Teaching, Web/Tech | Permalink | Comments (0) | TrackBack (0)

State Constitutional Challenge to Dual System of Voter Registration

Julie Ebenstein of the ACLU writes on Jurist.org that the dual system of voter registration in Kansas unlawfully denies citizens the right to vote.  Ebenstein outlines the Kansas case challenging the dual system under state constitutional provisions, filed last November and now pending in state court.

As we wrote, two states, Arizona and Kansas, adopted a dual system of voter registration in the wake of the Supreme Court's ruling last summer in Arizona v. Inter Tribal Council of Arizona.  In that case, the Court held that the requirement under the National Voter Registration Act that states "accept and use" an approved and uniform federal form for registering voters preempted Arizona's requirement that voters present evidence of citizenship at registration.  (The NVRA form requires applicants simply to attest to their citizenship, not to provide additional documentation.) 

Arizona and Kansas then announced that they would require voters to register separately for state and federal elections.  This created a dual system of voter registration: NVRA and state-form registrants before January 1, 2013, can vote in both state and federal elections; but NVRA registrants after January 1, 2013, can vote in only federal elections.  (NVRA registrants after that date also can't sign petitions.)  Now only state-form registrants who provide the additional proof of citizenship can vote in state elections.  State-form registrants who fail to provide the additional proof of citizenship cannot vote at all.

The ACLU and ACLU of Kansas filed suit last November challenging the dual registration system.  The complaint, filed in state court, alleges that the system violates state constitutional equal protection by distinguishing between classes of voters in the state, that state officials exceeded their state constitutional authority, and that the system wasn't properly promulgated as a rule or regulation under Kansas law.

January 18, 2014 in Cases and Case Materials, Comparative Constitutionalism, Congressional Authority, Elections and Voting, Equal Protection, Federalism, News, Preemption, State Constitutional Law | Permalink | Comments (0) | TrackBack (0)

Wednesday, January 15, 2014

Obamacare Tax Credit Survives Lawsuit

Judge Paul Friedman today upheld an IRS rule that extends tax credits to individuals purchasing health insurance on a federally-facilitated exchange under Obamacare.  The ruling in Halbig v. Sebelius deals a blow to opponents of Obamacare in one of the several cases against the Act still percolating in the courts.  We wrote on some of those cases and issues most recently herePolitico reports on this case here.

The case was a challenge to an IRS rule that extended tax credits not only to health-insurance purchasers on state exchanges, but also to health insurance purchasers on federally-facilitated exchanges.  That's a problem, the plaintiffs said, because the ACA didn't authorize the IRS to extend credits to purchasers on federally-facilitated exchanges.

In particular, the ACA calculates the credit based in part on the premium expenses for the health plan "enrolled in [by the individual] through an Exchange established by the State . . . ."  (Emphasis added.)  But the IRS rule makes tax credits available to qualifying individuals who purchase health insurance on state-run or federally-facilitated exchanges.

A group of individuals and employers residing in states that have declined to establish state exchanges sued, arguing that the IRS exceeded its authority under the ACA in extending tax credits to individuals in states without exchanges (and where the federal government facilitates the exchange). 

You might wonder about standing, given that the rule is designed to make insurance cheaper.  The court said at least one plaintiff had standing.  That's because one plaintiff lives in a state that declined to create an exchange, plans to earn $20,000 in 2014, and does not plan to enroll in a health insurance plan.  That plaintiff also introduced evidence that the cost of minimum health insurance coverage, if unsubsidized, would exceed eight percent of his income, allowing him to qualify for an unaffordability exemption.  But the IRS rule would lower the cost of his insurance premiums so significantly that he no longer qualifies for the unaffordability exemption.  As a result, the IRS rule means that he (1) has to purchase subsidized health insurance at about $20 per year or (2) has to pay some higher amount per year as a tax penalty (for not buying health insurance).  Because the rule encourages him to buy insurance--and that costs money (more than the exemption), even if only $20 a year--he has standing.  The irony wasn't lost on the court: "Counterintuitively, by making health insurance more affordable, the IRS Rule imposes a financial cost on Klemencic."As to the merits, the court said that the ACA is ambiguous when it extends credits to purchasers on exchanges "established by the State."  That's because the ACA, taken as a whole (and not just the limited provision cited by the plaintiffs, taken in isolation), can be reasonably understood to assume that states establish exchanges, and to leave it to the federal government to step in and establish an exchange only when a state declines to do so.  When the federal government does this, the court said, then it (the federal government) creates an exchange "established by the State."  "In other words, even where a state does not actually establish an Exchange, the federal government can create 'an Exchange established by the State . . .' on behalf of that state."The court also said that other provisions of the ACA suggest that Congress intended to extend credits to purchasers on federally-facilitated exchanges, and that those provisions would clash with the plaintiffs' preferred reading of the Act. 

January 15, 2014 in Cases and Case Materials, Congressional Authority, Executive Authority, Jurisdiction of Federal Courts, News, Separation of Powers, Standing | Permalink | Comments (0) | TrackBack (0)

Tuesday, January 14, 2014

Senate Confirms Wilkins to D.C. Circuit

The Senate voted yesterday 55 to 43 to confirm Robert L. Wilkins to serve on the U.S. Court of Appeals for the D.C. Circuit.  WaPo reports here.  The confirmation marks the third time since the Senate abolished the filibuster for executive and lower-court nominees that the body voted by a bare majority to confirm one of President Obama's nominees to this court.  We last posted on the issue here.

January 14, 2014 in Appointment and Removal Powers, Courts and Judging, Executive Authority, News, Separation of Powers | Permalink | Comments (0) | TrackBack (0)

Monday, January 13, 2014

Argument Review in Noel Canning, Recess Appointment Authority

The Supreme Court heard oral arguments today in NLRB v. Noel Canning, the case testing whether the President may make recess appointments to positions already vacant during an intra-session recess of the Senate.  Our argument preview is here.

The Court today was especially sensitive to the many thorny doctrinal, practical, and political issues in the case, and seemed to be looking for a simple solution that would dodge them.  The ordinary appointments process (with advice and consent of the Senate), as suggested by Chief Justice Roberts and Justice Ginsburg (see below), may well be that solution.  If so, the Court might read the Recess Appointments Clause more restrictively in this case, limiting the President's recess-appointments authority, and giving more power to the Senate to hold up executive appointments by declining to recess.

The case presents three questions about the Recess Appointments Clause:

1. Does "the Recess of the Senate" include intra-session breaks, or recesses?

2. Do "Vacancies that may happen during the Recess" include vacancies that already existed?

3. Can the President exercise the recess-appoitnment power when the Senate convenes only every three days in pro forma sessions?

The arguments included the predictable points on text and history--interpretations of "the Recess," the clause "may happen," and historical practices and understandings.  (If anything, these arguments only revealed how indeterminate and contestable these sources can be.  See, e.g., the discussion on the OED's definitions of "happen" starting at about page 60 or so of the transcript, and the points over practices running throughout the arguments.)  The particular concern with the words "may happen" suggest one possible outcome: the Court could rule that while "the Recess" includes intra-session recesses, "may happen" extends only to vacancies that occur (not already exist) during a recess.

But the more interesting--and probably more important--points were on balance-of-powers principles and practical implications--against the obvious backdrop of partisan politics.  

Indeed, what started in the briefing as a debate principally about the meaning and practice of the Recess Appointment Clause turned quickly today into a debate about executive power and whether the Senate encroached on executive recess-appointment power by meeting in pro forma sessions and thus denying the President a recess in which to make recess appointments.  General Verrilli pushed the argument on executive authority beyond a mere point on when the Senate is in "recess," claiming broadly that the President should get to fill all vacancies.  Justice Alito put a fine point on it:

But you are making a very, very aggressive argument in favor of executive power now and it has nothing whatsoever to do with whether the Senate is in session or not.  You're just saying when the Senate acts, in your view, irresponsibly and refuses to confirm nominations, then the President must be able to fill those--fill those positions.  That's what you're arguing.  I don't see what that has to do with whether the Senate is in session.

But Noel Canning and the Senate Minority Leader both took aggressive positions the other way, saying that the Senate gets to decide when it's on recess--even saying that it's never on recess--thus severely limiting the President's recess appoitment power.  Respondents argued that the President has come to use the recess appointment power to deal with Senate intransigence, not emergencies--an argument that seemed to resonate with the Court.

Chief Justice Roberts and Justice Kagan both seemed concerned that such an important balance-of-powers issue could turn on magic language in a Senate resolution, for example, as here, that says "No business shall be conducted."  Chief Justice Roberts said that this maybe made the point not so important.  Justice Kagan said that focusing on the phrasing of a Senate resolution could just land the case back at the Court, and that focusing on this kind of formalism suggests that it really is the Senate's responsibility to determine when it's in session or not.  But General Verrilli responded that the recess appointment power is an executive authority, "[a]nd the President has got to make a determination of when there's a recess"--that the Senate's use of pro forma sessions to stay in session (and not on recess) is an encroachment on Article II Recess Appointment power.

The Court was also concerned about how to balance text against practice.  Justice Scalia posed this question:

What do you do when there is a practice that--that flatly contradicts a clear text of the Constitution?  Which--which of the two prevails?

General Verrilli responded:

The answer is I think, given this--a practice going back to the founding of the Republic, the practice should be--the practice should govern, but we don't have that here.  This provision has been subject to contention as to its meaning since the first days of the Republic.

Justices Alito and Kagan asked the same question to Noel Canning, and got the exact opposite answer.  

The Court was also concerned about a related problem: If the government gets its way, it appears that the Senate violated the 20th Amendment and the Adjournment Clause.  Justices Breyer and Alito both suggested that the Court would rather avoid that conclusion.

These more theoretical issues are serious, to be sure, but they may not be necessary to resolve the case.  The Court was equally, or more, concerned about the practical implications of the case--in particular, how a ruling could affect already-made decisions by the NLRB, other government agencies, and even the courts (because of recess-appointed judges).  Chief Justice Roberts and Justices Sotomayor and Ginsburg asked about this; Justice Scalia suggested a way out of this problem, the de facto officer doctrine; still General Verrilli said that "it certainly casts a serious cloud over the legitimacy of all those actions."

Also focusing on the practical aspects of the case, Chief Justice Roberts and Justice Ginsburg both wondered why the President couldn't just use the ordinary appointment process (and why the Senate couldn't decline to confirm)--in other words, why the government says that the pro forma sessions and lack of intra-session recess appointment power is a problem.  Justice Scalia pointed out that the President can convene Congress (under Article II, Section 3, "He may, on extraordinary occasions, convene both houses"), and that Congress can get back within a day or so to deal with appointments.

Finally, Justice Breyer and Justice Kagan both asked about the politics--the shifting positions of the parties, depending on who is in the White House, and the President's use of the recess appointment power to deal with congressional intrasingence, not emergencies.  General Verrilli responded that the Senate's advice-and-consent role is much larger today than the framers anticipated, and that today it encroaches on the President's appointment power--trying to take the case out of ordinary politics and place it back in larger balance-of-powers issues.

 

January 13, 2014 in Appointment and Removal Powers, Cases and Case Materials, Congressional Authority, Executive Authority, News, Oral Argument Analysis, Separation of Powers | Permalink | Comments (0) | TrackBack (0)