Saturday, December 17, 2016
Check out this Brookings brief, The Emoluments Clause: Its text, meaning, and application to Donald J. Trump, just published by Norman Eisen, Richard Painter, and Laurence Tribe. From the intro:
Foreign interference in the American political system was among the gravest dangers feared by the Founders of our nation and the framers of our Constitution. . . .
As careful students of history, the Framers were painfully aware that entanglements between American officials and foreign powers could pose a creeping, insidious risk to the Republic. The Emoluments Clause was forged of their hard-won wisdom. It is no relic of a bygone era, but rather an expression of insight into the nature of the human condition and the preconditions of self-governance. . . .
While holding office, Mr. Trump will receive--by virtue of his continued interest in the Trump Organization and his stake in hundreds of other entities--a steady stream of monetary and other benefits from foreign powers and their agents.
Thursday, December 15, 2016
Steve Michel, the attorney who sued Senate Republicans to get them to take up President Obama's nominee to the Supreme Court, Judge Merrick Garland, to a vote, reportedly filed for an emergency injunction at the Supreme Court.
Recall that Judge Contreras (D.D.C.) dismissed Michel's suit last month for lack of standing.
Michel's latest move is unlikely to succeed: He still lacks standing.
The Seventh Circuit ruled this week in Brunson v. Murray that an official is not entitled to absolute immunity for a liquor-license renewal decision, even though absolute immunity extends to suspension and revocation decisions.
The ruling reverses circuit precedent on the issue. The court said that changes in state law and federal law (Cleavinger, discussed below) compelled the change.
The difference between a renewal decision, on the one hand, and a suspension or revocation decision, on the other, is that the latter is judicial-like (which triggers absolute immunity), where the former is not. The court determined this based on how each decision operates under state law (a functional analysis) and the six factors "characteristic of the judicial process" in Cleavinger v. Saxner. In short: "Under state law, a local liquor commissioner's action on a license renewal lacks the procedural formalities and protections that apply to the same official's decision to suspend or revoke a license. The differences are great enough to produce different results for the availability of absolute immunity."
The court remanded the plaintiff's claim for the renewal decision, remanded some other claims, and dismissed yet others in this strange and sordid case involving conflicts of interests and apparent vendettas by local public officials against a liquor store owner.
The NYT reports that some Democratic state AGs plan to borrow a page from Republican AGs' playbook: sue the President:
The strategy could be as simple as mirroring the blueprint laid out by their Republican colleagues, who made something of a legal specialty of tormenting President Obama. Conservative attorneys general in states including Texas, Virginia and Florida have sued the Obama administration dozens of times, systematically battering Mr. Obama's signature health care, environmental and immigration policies in the courts.
Wednesday, December 14, 2016
The Ninth Circuit this week upheld California's ten-day waiting period for gun purchasers against a Second Amendment challenge, even as to those purchasers who already had a concealed carry permit and to those who had cleared a background check in less than ten days.
The ruling is a significant defeat for gun-rights advocates. It means that California's ten-day waiting period stays in place for all gun purchasers as a "reasonable safety precaution" against impulsive gun buys.
The Ninth Circuit applied the familiar two-part test for Second Amendment challenges now used by most of the federal circuits: (1) does the law burden conduct protected by the Second Amendment; and, if so, (2) does the law satisfy the appropriate level of scrutiny? As to the first step, the Ninth Circuit applies an "historical understanding" test--"[l]aws restricting conduct that can be traced to the founding era and are historically understood to fall outside of the Second Amendment's scope may be upheld without further analysis." As to the second step, the Ninth Circuit applies a sliding scale based on how close the law comes to the core of the Second Amendment and how much it burdens Second Amendment rights.
The court said that it didn't need to address step 1 (the historical understanding), because the ten-day waiting period satisfied the appropriate level of review, intermediate scrutiny. (The court used its sliding scale test to arrive at intermediate scrutiny, because "[t]he actual effect of the [waiting period] on Plaintiffs is very small.") The court held that the law providing a cooling off period to promote safety and to reduce gun violence, even for purchasers who already had a gun (because the purchasers may seek "to purchase a larger capacity weapon that will do more damage when fired into a crowd.") "A 10-day cooling-off period would serve to discourage such conduct and would impose no serious burden on the core Second Amendment right of defense of the home . . . ."
Judge Thomas concurred: "I agree entirely with, and concur in, the majority opinion. I write separately, however, because the challenge to California's ten-day waiting period can be resolved at step one of our Second Amendment jurisprudence. As a longstanding qualification on the commercial sale of arms under [Heller], a ten-day waiting period is presumptively lawful."
Three district courts ruled late last week and early this week that petitioners lacked standing (Article III or otherwise) to challenge President-Elect Trump's election, or to petition for a recount.
On Friday, the Michigan Supreme Court effectively halted the recount effort there. Two concurring justices explained that Jill Stein was not "aggrieved" under the recount statute and therefore couldn't petition for a recount--the same argument that Trump and the Michigan AG made earlier in the process. Then on Monday Judge Diamond (E.D. Pa.) ruled that Jill Stein lacked Article III standing to seek a recount through the federal courts. (Judge Diamond identified several other problems with Stein's complaint.)
On Friday, Judge Moss (D.D.C.) tossed a case by a pro se plaintiff challenging Trump's election, because "[a]n ordinary citizen's challenge to the eligibility of a presidential candidate falls squarely within this category of nonjusticiable 'generalized grievances.'"
Tuesday, December 13, 2016
Thursday, December 8, 2016
Monday, December 5, 2016
As an orientation for assessing the argument, Lessig trenchantly reminds us:
In 2000, Republican lawyers, desperately seeking a way to stop the recount in Florida, crafted a brilliant Equal Protection argument against the method by which the Florida courts were recounting votes. Before that election, no sane student of the Constitution would have thought that there was such a claim. When the claim was actually made, every sane lawyer (on Gore’s side at least) thought it was a sure loser. But by a vote of 7 to 2, the Supreme Court recognized the claim, and held that the Equal Protection Clause regulated how Florida could recount its votes. That conclusion led 5 justices to conclude the recount couldn’t continue. George Bush became president.
Lessig provides some scholarly sources and reveals he is planning a law review article on the applicability of Bush v. Gore and equal protection principles to the "winner take all" electoral college process.
But he also shares a first take of a legal argument drafted by Jerry Sims, an Atlanta attorney. Here's Sims's Georgia example:
In Georgia, for example, we have 16 Electors and approximately 44% of all voters cast ballots for Clinton. Yet the Clinton Voters receive no representation within the State’s Electors. They are left with no voice whatsoever in the election of the President by the Electoral College, their votes are for all practical purposes thrown away. If Georgia were electing a single candidate then a winner-take-all result would be proper, but in an election of 16 Electors, the Clinton votes are not being given equal dignity with the Trump votes. Of course the state could argue that there is a single slate of Electors is up for election. But therein lies the rub, the State is not free to disregard the one man one vote rule by arbitrarily framing the election of 16 Electors as though it is an election of a single office holder. That argument would be a pretext designed to deny any voice to the voters for the candidate not winning the plurality of the vote within the State, even though in reality multiple representatives are being selected to vote in a second election for a single candidate. This system leaves minority voters in Georgia with no voice whatsoever in the final real election. Thus, if the election is viewed by the State as a statewide election, then Electors should be allocated proportionately, in order to give every vote equal dignity and weight, thereby electing a delegation of Electors that actually represents all of the voters within the State. Under this methodology every vote counts. Proportional allocation of Electors respects the one man one vote principle while preserving the small state bias. It merely eliminates the likelihood of a President being elected who did not win the popular vote and did not win because of the small State bias embedded in the Constitution.
Sims links to a spread sheet that provides the data for other states.
The equal protection framework relies on Bush v. Gore and Reynolds v. Sims, as well as Williams v. Rhodes (1968).
It's certainly worth considering.
Friday, December 2, 2016
Check out this study that measures candidates on President-Elect Trump's list of potential Supreme Court nominees for how close they are to Justice Scalia. From the abstract:
This study proposes three empirical measures of what made Justice Scalia Justice Scalia. First, how often does a judge promote or practice originalism? Second, how often do they cite to Justice Scalia's non-judicial writings . . . . And third, how often does a judge write separately, something Justice Scalia did 25.9% of the time when he was not writing the majority opinion over his last 20 years on the court.
The study puts Utah Supreme Court Justice Thomas Lee far and away the closest to Justice Scalia. Justice Lee had a particularly outsized lead in "percentage of opinions with originalism" and followed closely behind others in the other two categories.
It depends on what "aggrieved" means, according to the Trump team in its filing yesterday in opposition to Stein's recount petition.
Under Michigan law, a candidate can petition for a recount if the candidate "is aggrieved on account of fraud or mistake in the canvass of the votes by the inspectors of election or the returns made by the inspectors, or by a board of county canvassers or the board of state canvassers."
In a filing before the Michigan Board of State Canvassers yesterday, the Trump team argued that Stein wasn't "aggrieved," because, as the fourth-place finisher in the state, "finishing over 2.2 million votes behind the winner," she could not possibly benefit from a recount. The Trump team argued that her petition should be denied.
It turns out there's little direct authority on how to define "aggrieved." The Trump team points to the gloss given by the Director of Elections in a Board hearing ten years ago, the "natural understanding" of the term, and the use of the term in other places in Michigan law and other states' laws.
But even if Stein was "aggrieved," the Trump team argues that Michigan can't possibly conduct a recount before December 13 (outside the six-day "safe harbor" under federal law before the meeting of the electors on December 19).
But even if Stein was "aggrieved" and if Michigan could conduct a recount, the Trump team argues that Stein failed to sign and swear her petition.
Trump won 2,279,543 votes in Michigan; Clinton won 2,268,839; Gary Johnson won 172,136 votes; and Stein won 51,463.
UPDATE: Michigan AG Bill Schuette just filed suit in the Michigan Supreme Court to halt any recount, making arguments substantially similar to those by the Trump camp.
Thursday, December 1, 2016
The Eleventh Circuit ruled earlier this week that a police major was not entitled to qualified immunity for issuing a be-on-the-lookout (BOLO) advisory for another officer, recently fired for complaining about racial profiling and other constitutional violations by the local police department.
The ruling means that the officer's First Amendment case can move forward on the merits.
The case arose when Derrick Bailey, then an officer in the Douglasville Police Department, complained to his chief that other Douglasville officers and Douglas County Sheriff's Office deputies engaged in racial profiling and other constitutional violations. Bailey, who had an above-average record, was fired and harassed by other officers. Then Major Tommy Wheeler of the Douglas County Sheriff's Office issued the BOLO, saying that Bailey was a "loose cannon" who presented a "danger to any [law-enforcement officer] in Douglas County," and directing officers to "act accordingly." (According to the court, there was no evidence of any of this.)
Bailey sued for civil rights violations, and Wheeler moved to dismiss on qualified immunity grounds. The Eleventh Circuit rejected Wheeler's defense. It ruled that Bailey's speech was protected (Wheeler didn't contest this), that Wheeler's conduct adversely affected Bailey's speech, and that there was a causal connection between Bailey's speech and Wheeler's actions.
As to the second part, adversely affected, the court explained:
Let's pause for a moment to appreciate just how a reasonable law-enforcement officer may have understood that [BOLO] instruction. Under Georgia law, when a subject is armed and dangerous, an officer may shoot the subject in self-defense--a term Georgia construes as having justifiable intent to use such force as the officer reasonably believes to be necessary to prevent death or great bodily injury. So, in other words, Wheeler's BOLO gave all Douglas County law-enforcement officers a reasonable basis for using force--including deadly force--against Bailey if they reasonably misconstrued a single move Bailey made--such as reaching into his pocket when confronted by law-enforcement officers--as imperiling themselves or anyone else. We think that this situation, which potentially seriously endangered Bailey's life, easily would deter a person of ordinary firmness from exercising his First Amendment rights.
The court also ruled that Bailey's right to be free from retaliation for his speech was clearly established at the time that Wheeler issued the BOLO.
The court also denied Wheeler absolute immunity on Bailey's state-law defamation claim.
The ruling sends the case back to the trial court to go forward on the merits.
Wednesday, November 30, 2016
Check out the call for papers for an exciting Symposium on The Separation of Powers: A Global Constitutional Dialogue on May 22, 2017, at the University of Milan.
The topic is inspired by Professor Giovanni Bognetti's (U. Milan) book, La Separazione dei Poteri.
The conveners are Prof. Richard Albert (Boston College), Dr. Antonia Baraggia (U. Milan), Prof. Cristina Fasone (U. Rome), and Prof. Luca Pietro Vanoni (U. Milan).
Second Circuit Says Plaintiff Has Standing for Some, but Not All, Truth-In-Lending Procedural Violations
The Second Circuit ruled today that a class representative had standing to challenge a creditor's failure to disclose certain requirements under the Truth In Lending Act, but lacked standing to challenge other failures to disclose.
The ruling means that two of the plaintiff's claims are dismissed for lack of standing. The court dismissed the other two on the merits.
The court's ruling applies last Term's Spokeo v. Robins, dealing with a plaintiff's ability to challenge a defendant's failure to comply with "procedural" statutory requirements, absent a more traditional injury. The Court in Spokeo held that a plaintiff who seeks to challenge a defendant's failure to comply with a statute also has to allege and show a concrete injury in order to show Article III standing. (The statutory violation is called a "procedural violation," because the statute in Spokeo (and this case) required the defendant to follow certain procedures--in particular, to disclose certain things to consumers. The Court in Spokeo said that sometimes those procedural violations also come with a concrete harm, and sometimes they don't. A plaintiff has to plead and show that they do.)
The case arose when Abigail Strubel sued a credit-card issuer for failing to make four disclosures required by TILA: (1) that cardholders wishing to stop payment on an automatic payment plan had to satisfy certain obligations; (2) that the bank was statutorily obliged not only to acknowledge billing error claims within 30 days of receipt but also to advise of any corrections made during that time; (3) that certain identified rights pertained only to disputed credit card purchases for which full payment had not yet been made, and did not apply to cash advances or checks that accessed credit card accounts; and (4) that consumers dissatisfied with a credit card purchase had to contact the creditor in writing or electronically.
The court held that Strubel had standing to challenge 3 and 4, but not 1 and 2.
As a starting point, here's what the court said about Spokeo:
Thus, we understand Spokeo, and the cases cited therein, to instruct that an alleged procedural violation can by itself manifest concrete injury where Congress conferred the procedural right to protect a plaintiff's concrete interests and where the procedural violation presents a "risk of real harm" to that concrete interest. But even where Congress has accorded procedural rights to protect a concrete interest, a plaintiff may fail to demonstrate concrete injury where violation of the procedure at issue presents no material risk of harm to that underlying interest.
As to 3 and 4, the court said that Strubel sufficiently demonstrated a concrete interest in "avoid[ing] the uninformed use of credit," "a core object of TILA." It said that a "consumer not given notice of his obligations is likely not to satisfy them and, thereby, unwittingly to lose the very credit rights that the law affords to him." The court went on to dismiss these claims on the merits.
As to 1 and 2, the court said that Strubel didn't show a concrete interest, because (as to 1) the creditor had no automatic payment plan when Strubel had her card and (as to 2) Strubel never had any reason to report a billing error (which would have triggered the creditor's obligation to "advise of corrections." In other words, because the conditions for violating the underlying requirements were absent, the creditor's failure to notify Strubel of the requirements couldn't have caused any concrete harm. The court dismissed these claims for lack of standing.
The court noted that a different plaintiff could have standing to challenge 1 and 2, so long as the plaintiff could also show a concrete harm. The court also noted that the CFPB can enforce these provisions independently.
Tuesday, November 29, 2016
Each part of the ruling is important: the free speech ruling creates a circuit split; and the Eighth Amendment ruling implicates questions of supervisor liability for civil rights violations and access to justice for victims--issues now before the Supreme Court (in a different context).
The case arose when state prisoner Seyon Haywood alleged that his auto mechanic teacher attacked him. Guards charged Haywood with making a false statement, and a disciplinary panel found him guilty and sentenced him to two-month's segregation and revoked one month of good-time credit.
Haywood filed a federal civil rights case against the warden, alleging that his punishment violated his free speech rights, and that his segregated confinement violated the Eighth Amendment.
The Seventh Circuit dismissed the First Amendment claim. The court ruled that under Heck v. Humphrey and Edwards v. Balisok, Haywood couldn't bring a Section 1983 case for relief that would necessarily imply the invalidity of his disciplinary sentence, at least until he successfully challenged that disciplinary sentence. The court rejected Haywood's argument that Heck and Edwards don't apply, because he disavowed any challenge to the duration of his confinement. Haywood's argument drew on a Second Circuit ruling, Peralta v. Vasquez, which said just that. The Seventh Circuit's rejection of Haywood's claim sets up a circuit split on the question whether a prisoner can bring a 1983 case without successfully challenging a sentence, if the prisoner waives that challenge.
As to the Eighth Amendment claim, the court held that Haywood produced sufficient evidence to show that the warden (the only defendant in the case) was deliberately indifferent to Haywood's conditions of confinement to satisfy Ashcroft v. Iqbal and Farmer v. Brennan for direct (not vicarious) liability.
Judge Easterbrook dissented on this latter point. He argued that Haywood only showed that the warden knew of the conditions of his confinement, and, under Iqbal, knowledge is not enough. Judge Easterbrook also noted that the Supreme Court will weigh in on this soon enough, in the consolidated Turkmen cases, testing whether former AG Ashcroft and FBI Director Mueller, among others, can be held liable for detention of alien detainees at the Metropolitan Detention Center in New York, soon after 9/11.
Prof. Robert Delahunty (St. Thomas) argues in his Cardozo De Novo piece that the Uniform Faithless Electors Act is unconstitutional. That Act, enacted in several states, says that a "faithless elector" ballot cannot be counted, and that a "faithless elector" immediately vacates the office of elector when he or she submits the "faithless" ballot. This creates a vacancy that the legislature can fill with a "faithful elector."
Delahunty argues that this runs afoul of Article II, Section 1, and the First Amendment. Read it to see why.
[I]f [electors should exercise independent judgment], it's hard to see how electors would be exercising their independent judgment by deferring to the popular vote. That's especially so because they would be deferring to the popular vote in other states that didn't even vote for them as electors.
. . . It's hard to have electors follow an ancient principle that gives them independent judgment and yet simultaneously follow a newer principle [one-person, one-vote] that takes their judgment away. The two ideas don't readily mix.
More broadly, I would think that any proposal for how electors should vote should be settled before an election rather than offered to resolve an election that already occurred.
Monday, November 28, 2016
Judge Christopher R. Cooper (D.D.C.) today rebuffed state arguments that a new Treasury rule governing state escheat claims of title and for payment of U.S. Treasury bonds did not violate the Constitution. The ruling ends this case (unless and until appealed) and means that the Treasury rule, designed to ensure that state judgments on the abandonment and ownership of Treasury bonds are accurate, stays in place.
The ruling is a blow to states like Kansas that sought to make it easier to show that a Treasury bond was abandoned, and that the state owned it, and therefore could redeem it.
The case came on the heels of some regulatory and judicial back-and-forth on the issues of whether and how states could take title to Treasury bonds under state escheat laws, redeem the bonds, and keep the proceeds. At one point in the back-and-forth, Kansas adopted a title-escheatment statute, which conveyed title of abandoned bonds to the state. Treasury agreed to redeem bonds in the state's possession, but, under its regs, not those escheated bonds not in its possession. So Kansas sued.
As that case was pending, Treasury enacted new regs. The new regs gave Treasure the "discretion to recognize an escheat judgment that purports to vest a state with title to a [matured by unredeemed] savings bond . . . in the state's possession" when there is sufficient evidence that the bond has been abandoned. But the rule does not recognize "[e]scheat judgments that purport to vest a state with title to bonds that the state does not possess." In short, in order for a state to claim payment, the rule provides that (1) states must have possession of the bonds, (2) they must have "made reasonable efforts to provide actual and constructive notice of the state escheatment proceeding" and an opportunity to respond to all interested parties, and (3) there must be sufficient evidence of abandonment.
Kansas and others sued again, this time arguing that the new rule was arbitrary and capricious in violation of the APA, that it violates the Appointments Clause and the Tenth Amendment, and that it illegal confers the power to review state court judgments to a federal agency.
As to Appointments, the plaintiffs argued that the Treasury official who signed and promulgated the rule, Fiscal Assistant Secretary David A. Lebryk, appointed as an inferior officer, exercised authority as a principal officer in violation of the Appointments Clause. The court disagreed, pointing to the Fiscal Assistant Secretary's work, including the work on the new rule, which "is directed and supervised at some level by others who were appointed by Presidential nomination with the advice and consent of the Senate."
As to review of state judgments, the plaintiffs argued that the new rule permits Treasury to judge the due process and sufficiency-of-evidence in state court proceedings under the three prongs listed above. But the court said that "[t]wo bodies of law are at issue: a state law of escheat and a federal law of bond ownership," and that "[s]tate court judgments are final regarding the former, but Treasury--by operation of the Supremacy Clause and pursuant to its statutorily-delegated authority--may promulgate rules to define the latter." The court also said that Treasury's due process review is not aimed at implementing constitutional protections (as an appellate court might), "but at facilitating reliable determinations of abandonment."
Finally, as to the Tenth Amendment, the court said that Treasury promulgated the rule pursuant to statutory authority from Congress, enacted within Congress's constitutional authority, and so the rule raised no Tenth Amendment problem.
(The court also rejected the plaintiffs' APA claim.)
Lawrence Lessig's much-talked-about piece in the Washington Post is here. In short:
[I]f the electoral college is to control who becomes our president, we should take it seriously by understanding its purpose precisely. It is not meant to deny a reasonable judgment by the people. It is meant to be a circuit breaker--just in case the people go crazy.
In this election, the people did not go crazy. The winner, by far, of the popular vote is the most qualified candidate for president in more than a generation. Like her or not, no elector could have a good-faith reason to vote against her because of her job qualifications. Choosing her is thus plainly within the bounds of a reasonable judgment by the people.
House Democrats today issued a(nother) letter to House Oversight and Government Reform Chair Jason Chafetz to conduct oversight hearings on conflicts between President-Elect Trump's business interests and his role as President. (They issued an earlier letter two weeks ago.)
Although you have stated publicly that you will hold Mr. Trump to the same standards as President Obama and Secretary Clinton, you have not responded to Ranking Member Cummings' letter, and you have not taken steps to conduct basic oversight of these unprecedented challenges.
The letter goes on to outline the many now-familiar conflicts between Trump's overseas and domestic business interests and his role and his family's roles through the transition and into his presidency.
The letter quotes Chafetz's own words, from before the election, way back in August:
If you're going to run and try to become the president of the United States, you're going to have to open up your kimono and show everything, your tax returns, your medical records. You are just going to have to do that. It's too important. . . . I promise you, I don't care who is in the White House. My job is not to be a cheerleader for the president. My job is to hold them accountable and to provide that oversight. That's what we do.