Wednesday, November 29, 2017
U.S. District Judge Timothy J. Kelly (D.D.C.) ruled in favor of the President in the ongoing dispute over who is acting director of the Consumer Financial Protection Bureau. We last posted here; WaPo has a story here.
Judge Kelly ruled from the bench against Leandra English, the CFPB deputy director, and declined to unseat Mick Mulvaney, President Trump's appointee.
This is hardly the final say in the matter. We'll post on any written decision when it's released.
Monday, November 27, 2017
As has been widely reported, two acting directors of the Consumer Financial Protection Bureau showed up for work today. One told employees to ignore the other; the other sued. (Politico reports on the confusion at the Bureau here.)
Leandra English, the former deputy director appointed by outgoing Director Richard Cordray, was in line for the job under a Dodd-Frank provision that says that the deputy director becomes acting when the director leaves. But Mick Mulvaney was also in line for the job after President Trump appointed him pursuant to the Federal Vacancies Reform Act. We outlined the competing appointment provisions in a post yesterday. OLC came down on the President's side; so did the CFPB general counsel (who was appointed by Cordray)--and for the same reasons as the OLC.
English sued in the D.C. District Court seeking declaratory and injunctive relief. Here's the gist of her argument:
The President apparently believes that he has authority to appoint Mr. Mulvaney under the Federal Vacancies Reform Act of 1988. But the Vacancies Act, by its own terms, does not apply where another statute "expressly . . . designates an officer or employee to perform the functions and duties of a specified office temporarily in an acting capacity"--which is exactly what the Dodd-Frank Act does. The President's interpretation of the FVRA runs contrary to Dodd-Frank's later-enacted, more specific, and mandatory text. The President's stance is also difficult to square with the relevant legislative history: An earlier version of the Dodd-Frank Act, which would have specifically allowed the President to use the Vacancies Act to temporarily fill the office, was eliminated and replaced with the current language designating the Deputy Director as the Acting Director. And the President's attempt to appoint a still-serving White House staffer to displace the acting head of an independent agency is contrary to the overall design and independence of the Bureau.
Sunday, November 26, 2017
Check out Linda Greenhouse's review in the NYT of Prof. Steven Calabresi's piece, Proposed Judgeship Bill. Calabresi argues that Congress should "immediately pass a judgeship bill funding new federal judgeships for the federal courts of appeals and the federal district courts" in order to meet the "woefully understaffed" federal courts. (Greenhouse wrote that she learned of the piece from a post at Think Progress.)
Greenhouse says that Calabresi's piece, styled as a "Memorandum to the Senate and the House of Representatives," is a "head-snapping" effort to stack the lower federal courts with conservatives. She also argues that it's based on a false premise that there's a workload crisis in the lower federal courts. (There isn't a crisis, she says, or at least not a new one. Federal appeals have remained more-or-less steady for the last decade.)
Calabresi also argues that administrative law judges should be eliminated and replaced with Article III administrative law judges.
He says that Congress should make these changes in the currently pending Reconciliation Bill, "because that Bill cannot be filibustered in the Senate."
Saturday, November 25, 2017
The Office of Legal Counsel issued a memo on Saturday concluding that the President had authority to appoint OMB Director Mick Mulvaney as acting head of the Consumer Financial Protection Bureau, even though the CFPB chain-of-succession says that CFPB Deputy Director Leandra English should take over the job.
The opinion, while significant, is not binding on the courts, where this dispute will inevitably be resolved.
The dispute pits two appointment authorities against each other. On the one hand, the CFPB statute says that the CFPB Deputy Director shall "serve as acting Director in the absence or unavailability of the Director." This means that English, the acting Deputy, should get the job. (Richard Cordray, the former Director, appointed English as acting Deputy shortly before he resigned on Friday.) But on the other hand, the Federal Vacancies Reform Act gives the President authority to "temporarily authoriz[e] an acting official to perform the functions and duties" of an officer of an Executive agency whose appointment "is required to be made by the President, by and with the advice and consent of the Senate." This means that Mulvaney should get the nod.
So who wins? OLC says the President does.
The Federal Vacancies Reform Act says that its process shall be the "exclusive means" for authorizing acting service "unless" another statute expressly designates an officer to serve as acting. The CFPB statute does just that. But according to OLC, this doesn't mean that the CFPB statute prevails; it simply means that both the CFPB statute and the Federal Vacancies Reform Act provide available methods for appointment:
By its terms, [the Vacancies Reform Act says that it] shall be the "exclusive means" of filling vacancies on an acting basis unless another statute "expressly" provides a mechanism for acting service. It does not follow, however, that when another statute applies, the Vacancies Reform Act ceases to be available. To the contrary, in calling the Vacancies Reform Act the "exclusive means" for designations "unless" there is another applicable statute, Congress has recognized that there will be cases where the Vacancies Reform Act is non-exclusive, i.e., one available option, together with the office-specific statute.
But even so, how do we know the President wins? According to OLC,
as with other office-specific statutes, when the President designates an individual under the Vacancies Reform Act outside the ordinary order of succession, the President's designation necessarily controls. Otherwise, the Vacancies Reform Act would not remain available as an actual alternative in instances where the office-specific statute identifies an order of succession, contrary to Congress's stated intent.
Finally, because Congress didn't include the CFPB Director in the statutory carve-outs to the Vacancies Reform Act for other independent agencies, OLC concluded that it's subject to that Act, even though Congress designed it as independent. That's because the carve-outs refer to multi-member boards (which the CFPB is not) and other specified agencies (not including the CFPB).
Tuesday, November 21, 2017
Judge William H. Orrick (N.D.Cal.) granted summary judgment for the plaintiffs and issued a nationwide permanent injunction against the defunding and enforcement provisions of President Trump's sanctuary cities executive order.
The ruling deals a serious blow to the President and his efforts to rein in sanctuary cities. This ruling goes to the EO itself, not AG Sessions's interpretation and enforcement of the EO, as the more recent temporary injunctions did. We posted most recently on the case in Philadelphia here.
Judge Orrick noted that nothing had changed from his earlier temporary injunction. He summarized his ruling this way:
The Constitution vests the spending powers in Congress, not the President, so the Executive Order cannot constitutionally place new conditions on federal funds. Further, the Tenth Amendment requires that conditions on federal funds be unambiguous and timely made; that they bear some relation to the funds at issue; and that they not be unduly coercive. Federal funding that bears no meaningful relationship to immigration enforcement cannot be threatened merely because a jurisdiction chooses an immigration enforcement strategy of which the President disapproves. Because the Executive Order violates the separation of powers doctrine and deprives the Counties of their Tenth and Fifth Amendment rights, I GRANT the Counties' motions for summary judgment and permanently enjoin the defunding and enforcement provisions of Section 9(a).
Recall that Section 9(a) says that "[i]n furtherance of [the policy to ensure that states and their subdivisions comply with 8 U.S.C. Sec. 1373], the [AG] and the Secretary [of Homeland Security] . . . shall ensure that jurisdictions that willfully refuse to comply with 8 U.S.C. Sec. 1373 (sanctuary jurisdictions) are not eligible to receive Federal grants, except as deemed necessary for law enforcement purposes . . . ." Importantly, the EO didn't specify which federal grants were at risk; it apparently applied to all federal grants.
AG Sessions tried to restrict the EO to JAG/Byrne grants from the Justice Department, but Judge Orrick had nothing of it: "The AG Memorandum not only provides an implausible interpretation of Section 9(a) but is functionally an 'illusory promise' because it does not amend Section 9(a) and does not bind the Executive Branch. It does not change the plain meaning of the Executive Order."
Judge Orrick said that a nationwide injunction was appropriate "[b]ecause Section 9(a) is unconstitutional on its face, and not simply in its application to the plaintiffs here . . . ."
Thursday, November 16, 2017
Judge Michael Baylson (E.D. Pa.) granted a preliminary injunction yesterday against the government's enforcement of it's anti-sanctuary cities moves against Philadelphia, and enjoyed AG Sessions from denying the city's Byrne JAG grant for FY 2017.
The ruling is a major victory for the city, and a significant strike against the federal crack-down on sanctuary cities. It follows a similar, but less sweeping, ruling in the Chicago case.
Judge Baylson ruled that AG Sessions's order to condition DOJ Byrne JAG grants on Philadelphia's agreement to give federal authorities notice when city officials detain an unauthorized alien (the "notice condition"), to give federal authorities access to city jails (the "access condition"), and to certify that it complies with 8 U.S.C. Sec. 1373 likely violate federal law and the Constitution.
In particular, Judge Baylson ruled that the conditions violate the Administrative Procedure Act, because they're arbitrary and capricious. He also ruled that they "are improper under settled principles of the Spending Clause, the Tenth Amendment, and principles of federalism." On the constitutional issues, he said that the conditions are not sufficiently related to the purposes of the Byrne JAG grant program (in violation of the conditioned-spending test under South Dakota v. Dole), because "[i]mmigration law [the purpose of the conditions] has nothing to do with the enforcement of local criminal laws [the purpose of Philadelphia's Byrne JAG grant]." He also said that the conditions were ambiguous (also in violation of South Dakota v. Dole), because "the Access and 48-hours Notice Conditions cannot have been unambiguously authorized by Congress if they were never statutorily authorized," and the "malleable language [of Section 1373] does not provide the 'clear notice that would be needed to attach such a condition to a State's receipt of . . . funds.'" (The court also said, but "[w]ithout specifically so holding," that "Philadelphia is likely to succeed on the merits of its Tenth Amendment challenge" to the conditions, because the notice and access conditions "impose affirmative obligations on Philadelphia, with associated costs of complying with such conditions," and because the compliance condition (on 1373) "would inherently prevent Philadelphia from, among other things, disciplining an employee for choosing to spend her free time or work time assisting in the enforcement of federal immigration laws" (and thus commandeers the city).
Finally, Judge Baylson noted that Philadelphia isn't a sanctuary city, anyway--at least not in the way defined by federal law. In particular, he wrote that the city "substantially complies with Section 1373."
Thursday, November 9, 2017
A sharply divided Foreign Intelligence Surveillance Court, sitting en banc for the first time in its history, ruled that the ACLU and Yale Law School's Media Freedom and Information Clinic have standing to seek redacted portions of FISC rulings that set out the legal basis for a government bulk-data-collection program. The ruling means that the movants' efforts to obtain the rulings can move forward, although it does not say anything about the merits.
The case arose after two newspapers in June 2013 released classified information about a surveillance program run by the government since 2006. The DNI then declassified further details about the bulk-data-collection program and acknowledge that the FISC approved much of it under Section 215 of the Patriot Act, the "business records" provision.
The movants filed a motion with the FISC, asking the FISC to unseal its opinions on Section 215. They argued that because officials had revealed key details of the program, there was no need to keep the legal justification for it secret, and moreover that they had a First Amendment right of access under Richmond Newspapers v. Virginia.
The government released more information about the program, including a white paper that explained how FISC judges periodically approved the directives to telecommunications providers to produce bulk telephonic metadata. At the same time, the FISC asked the government to review several of its opinions and then released redacted versions of those opinions relating to Section 215.
The movants then filed another motion to unseal classified sections of the FISC rulings. The government provided yet more redacted FISC opinions and moved to dismiss the second motion. The government argued that it would merely duplicate already-released opinions, and that the movants lacked standing.
As to standing, the FISC disagreed. In particular, the court said that the movants had a concrete and actual harm, "because the opinions are currently not available to them. . . . [M]oreover, it is sufficiently 'particularized' from that of the public because of Movants' active participation in ongoing debates about the legal validity of the bulk-data-collection program." The court emphasized that for the purpose of determining standing, it "must . . . assume that Movants are correct that they have a constitutional right of access--so long as that right is cognizable." In other words, the court said that the movants' standing couldn't turn on the viability of their substantive claim.
The dissent argued that "[n]o member of the public would have any 'right' under the First Amendment to ask to observe a hearing in a FISC courtroom. Still less should we be inventing such a 'right' in the present circumstances." Moreover, the dissent said that the movants, instead of seeking access to judicial proceedings, really only wanted the FISC "to rule that they have a 'right' of access to the information classified by the Executive Branch and that Executive Branch agencies must defend each redaction in the face of Movants' challenge." The dissent said that the movants therefore had no legally protected interests.
Saturday, October 28, 2017
Judge Ellen Segal Huvelle (D.D.C.) ruled this week that the Defense Department's enhanced vetting policies for noncitizen-soldiers who seek to apply for expedited citizenship under federal law likely violates the Administrative Procedure Act. The court also provisionally certified a class in the case, and certified a class in a related case challenging a different aspect of the same problem.
The rulings are significant, even if preliminary, wins for the two groups of noncitizens soldiers in their efforts to apply for citizenship by virtue of their military service. The rulings are also a significant setback for the DOD's efforts to ramp-up security screenings for noncitizen soldiers before they can apply for citizenship, and yet another setback for the administration in its immigration policies.
One ruling, Kirwa v. DOD, says that the DOD's failure to issue a certain form, the N-426, to noncitizen reservists who applied for service before October 13, 2017, and who were (and are) awaiting assignment to basic training likely violates the APA. (The N-426 is a form that simply certifies a noncitizen-soldier's military service. It's a requirement for a noncitzien reservists and active-duty soldiers to apply for an expedited path to citizenship under federal law.) That same ruling also provisionally certifies a class; a related ruling, Nio v. DOD, later this week certified a class in a different case (more below).
Kirwa arose when DOD changed course in the spring of 2017 and began to decline requests for a certain form, the N-426, which simply certifies a noncitizen soldier's military service as a prerequisite to his or her citizenship application, to noncitizen reservists who were awaiting assignment to basic training. (DOD previously issued the N-426 to noncitizen reservists during this period, although an earlier policy change, in September 2016, led to some earlier delays in issuing the form.) Plaintiffs sued to get the DOD to issue the forms, but DOD then issued new policy guidance on October 13, 2017. The new guidance imposed additional security-vetting requirements before the DOD would issue the N-426 to noncitizen-reservists, further delaying the plaintiffs' ability to apply for citizenship (and subjecting them to deportation proceedings in the meantime). The plaintiffs amended their complaint and motion for class certification based on the new guidance.
The court ruled that the plaintiffs were likely to succeed on the merits of their Administrative Procedure Act claim, because the "DOD offered no reasoned explanation for this change, thereby suggesting that DOD's decision was an arbitrary and capricious one." (The court ruled that it could hear the case under the APA, despite the government's claim that the APA didn't reach this kind of decisionmaking and despite the government's claim that the case touched on national security.) Moreover, the court said that the October 13 guidance changed the ground-rules for the plaintiffs, who enlisted based on very different policies and processes for noncitizen-reservists to apply for expedited citizenship. The court granted the plaintiffs' motion for a preliminary injunction and provisionally certified a class (noting that it included about 2,000 individuals).
In Nio, the court certified a class of noncitizen-soldiers who had a completed N-426 form and applied for expedited citizenship with DHS, but were held up because of DOD's enhanced vetting processes. (The court noted that there are about 400 to 500 members of the class.)
Wednesday, October 25, 2017
Judge Vince Chhabria (N.D. Cal.) today denied the states' motion for a preliminary injunction in the their case against the Trump administration for halting cost-sharing reduction ("CSR") payments to insurance companies on the Obamacare exchanges. We posted on the complaint here.
Judge Chhabria ruled that the plaintiff-states did not demonstrate a likelihood of success on the merits, because Congress didn't appropriate funds for the CSRs, even though the ACA requires that the government pay them:
In sum, the [ACA] requires the federal government to pay insurance companies to cover the cost-sharing reductions. The federal government is failing to meet that obligation. If there was no permanent appropriation in the Act, Congress is to blame for the failure, because it has not been making annual appropriations for CSR payments. The Administration cannot fix Congress's error, because the Constitution prevents the Administration from making payments on its own. In contrast, if the Act created a permanent appropriation, the Administration is legally at fault for the federal government's failure to meet its obligation under the Act to make CSR payments. On the merits, it's a close and complicated question, even if the Administration may seem to have the better argument at this stage.
As to the other preliminary injunction factors, Judge Chhabria noted that most of the states in the lawsuit have taken measures with the insurance companies to offset the impact of the administration's decision not to pay CSRs to the consumers. States did this by encouraging insurance companies to increase premiums in certain plans so that consumers would qualify for higher premium tax credits (which, unlike the CSRs, have a permanent appropriation under the ACA). For most consumers, the court said, the higher premium tax credits would well offset any harm based on the administration's decision not to pay CSRs.
The ruling means that the court won't require the administration to make CSR payments, at least for now.
Wednesday, October 18, 2017
Check out Prof. Abbe Gluck's piece at Vox setting out the case that President Trump is violating the Take Care Clause by purposefully undermining Obamacare (which, after all, is still federal law).
We posted on the states' case against President Trump for dropping the cost-sharing reduction payments to insurance companies. The complaint cites the myriad ways that the President is actively undermining the ACA (and thus violating the Take Care Clause), but only seeks relief with regard to the CSRs. Gluck's piece takes it a step farther and says why the President's several efforts violate the Take Care Clause.
Monday, October 16, 2017
As soon as President Trump announced last week that his administration would halt cost-sharing reimbursement payments to insurers on the Obamacare exchanges, 18 states and the District of Columbia sued, arguing that the move violates federal law and the Take Care Clause of the Constitution.
The cost-sharing reimbursements ("CSRs") are designed to reimburse insurers for extending insurance to low- and moderate-income individuals and families on the Obamacare exchanges. Recall that while the ACA requires the government to pay CSRs, Congress failed to appropriate funds for them under President Obama. The President nevertheless paid them, and the House of Representatives sued. Judge Rosemary Collyer (D.D.C.) ruled in favor of the House and stopped the payments. The D.C. Circuit, however, held the case in abeyance as the Trump administration decided whether to stop the payments. We posted most recently here.
The Trump administration continued the CSRs--until last week.
Eighteen states and the District of Columbia immediately brought suit in the Northern District of California. The complaint points out that 42 U.S.C. Sec. 18071(c)(3)(A) says that the Secretary "shall make periodic and timely payments [CSRs]" to the insurers and argues that the President's decision not to make payments violates the Administrative Procedure Act and the Take Care Clause. The complaint also catalogues the familiar and many ways that the Trump administration is actively undermining the ACA, and argues that these, too, violate the Take Care Clause.
The lawsuit pits the fact that the ACA requires CSRs against the fact that Congress declined to fund them, against the backdrop of the well-integrated and complementary provisions in the ACA, which could all fall apart without the CSRs. When Judge Collyer address these issues, she wrote,
Nothing in Section 1402 prescribes a "periodic and timely payment" process, however. Nor does Section 1402 condition the insurers' obligation to reduce cost sharing on the receipt of offsetting payments.
Such an appropriation [for CSRs] cannot be inferred [from the integration between refundable tax credits, which were funded by Congress, and CSRs, which were not], no matter how programmatically aligned the Secretaries may view [those sections]. . . .
Payment out [CSRs] without an appropriation thus violates the Constitution. Congress authorized reduced cost sharing but did not appropriate monies for it, in the FY 2014 budget or since. Congress is the only source for such an appropriation, and no public money can be spent without one.
Thursday, October 12, 2017
The en banc Ninth Circuit ruled this week that a denial of a zoning permit to open a gun store did not violate the Second Amendment rights of local residents (to buy guns) or the gun shop (to sell them).
The case, Teixeira v. County of Alameda, arose when the unincorporated county denied a conditional use permit to Teixeira to open a gun shop under a county ordinance. The ordinance say that firearms retailers can't operate within 500 feet of residential districts, schools and day-cares, other firearm retailers, and liquor stores. After some back-and-forth, the Zoning Board found that Teixeira's proposed shop was within 500 feet of two homes, and so denied the permit.
Teixeira sued, arguing that the ordinance requiring a conditional use permit violated his own Second Amendment right (to sell) and the Second Amendment rights of county residents (to buy). The en banc court rejected these claims.
The court ruled first that the plaintiffs failed to plausibly allege that the ordinance impeded any county resident from buying a gun:
Alameda County residents may freely purchase firearms within the County. As of December 2011, there were ten gun stores in Alameda County. Several of those stores are in the non-contiguous, unincorporated portions of the County. In fact, Alameda County residents can purchase guns approximately 600 feet away from the proposed site of Teixeira's planned store, at a Big 5 Sporting Goods Store.
The court therefore held that the ordinance did not violate the Second Amendment rights of county residents to buy.
As to the gun-store owners' right to sell, the court surveyed the text and history of the Second Amendment and concluded that it did not protect the right to sell firearms. "[T]he right of gun users to acquire firearms legally is not coextensive with the right of a particular proprietor to sell them." (The court rejected an analogy to the First Amendment for booksellers, writing that "bookstores and similar retailers who sell and distribute various media, unlike gun sellers, are themselves engaged in conduct directly protected by the First Amendment.") Because the ordinance didn't restrict Second Amendment rights, the court said it was "necessarily allowed by the Amendment."
Wednesday, October 11, 2017
The Ninth Circuit ruled yesterday that California's prorator license law likely violates the Dormant Commerce Clause. In the same ruling, the court held that California's mandatory disclosure requirements likely did not violate the First Amendment, and that the case did not warrant Younger abstention. The court sent the case back for further proceedings.
The case, Nationwide Biweekly v. Owen, arose when California prosecutors and regulators targeted Nationwide Biweekly Administration for fraud investigations involving one of its mortgage-payoff products. Here's how it works: a consumer would pay to Nationwide his or her monthly mortgage bill every two weeks, instead of paying to the lender directly every month. Nationwide would then pay the lender every month. This meant that a consumer would pay to his or her lender, through Nationwide, an extra monthly payment each year and thus pay off the loan sooner. Nationwide advertised the product as a "100% savings," but failed adequately to disclose the discount rate (based on the time-value of money) and fees for the product. So what appears to be a cost-free (and thus savings-only) product in fact is not cost-free.
The Monterey County District Attorney's Office sent Nationwide a letter about the practice and alleged that Nationwide was violating several California laws. In particular, the DA's office wrote that Nationwide was violating two provisions that required it to say that it's not affiliated with the lender in any solicitation to consumers for its product. The letter also said that Nationwide was violating California's "prorator" registration law, which required a "prorator" (a "person who, for compensation, engages in whole or in part in the business of receiving money or evidences thereof for the purpose of distributing the money or evidences thereof among creditors in payment or partial payment of the obligations of the debtor") to obtain a license. But under California law, such a license is only available to a corporation if the corporation is "organized under the laws of this State for that purpose." The Commissioner later sent Nationwide a letter notifying the corporation that it was investigating Nationwide's unlicensed business activity.
Nationwide filed suit in the Northern District, seeking to enjoin enforcement of the disclosure requirements by the DA. A Nationwide subsidiary later filed suit in the Northern District seeking to enjoin enforcement of the registration requirement against the Commissioner. The court rejected Nationwide's motion for a preliminary injunction in both cases, and Nationwide filed notices of appeal.
About a month after the opening appellate briefs were filed, the DA and the Commission filed a joint enforcement suit in California Superior Court. The district court dismissed both federal cases under Younger, and Nationwide appealed.
The Ninth Circuit ruled first that Younger abstention was not appropriate, because "before the date that the state case was filed, the district court had already conducted proceedings of substance on the merits." In particular, the court "spend a substantial amount of time evaluating the merits of the cases in considering and denying (in a detailed and reasoned order) Nationwide's motions for preliminary injunctions."
The court went on to hold that Nationwide was unlikely to succeed on its First Amendment claim. It ruled that under Zauderer, the "required disclaimers--short, accurate, and to the point--are reasonably related to California's interest in preventing . . . deception."
Finally, the court said that California's licensing requirement likely violated the Dormant Commerce Clause, because California's requirement makes in-state incorporation a prerequisite to getting a license to engage in interstate commerce.
Judge Montgomery argued in dissent that the federal proceedings were still at an embryonic stage and the court should have abstained under Younger.
Saturday, October 7, 2017
Here's a constitutional issue that might unite some on the right and the left: Should the Court revisit the qualified immunity doctrine?
Qualified immunity provides protection for state actors from liability for constitutional torts when the office did not violate "clearly established statutory or constitutional rights of which a reasonable person would have known." The doctrine was created by the Court, not by the plain text of the Constitution or by 42 U.S.C. Sec. 1983, the basis for constitutional tort claims against state officers. It operates as a back-door way to shield an officer from liability (and thus deny a victim a remedy) in cases where a constitutional right hasn't (yet) been established. That leaves a lot of room for immunity. Moreover, a court granting qualified immunity does not necessarily reach the merits, and so never needs to rule on the underlying constitutionality of the officer's act. In other words, under the doctrine an officer could enjoy qualified immunity from liability for a specific act that the courts have not (yet) ruled unconstitutional, and we also don't learn whether it's actually unconstitutional.
Justice Thomas raised concerns about the doctrine in his concurrence last Term in Ziglar v. Abassi. And the ACLU argued this Term in Wesby (as amicus) that the doctrine lacks a firm basis in history and over-protects officers. (The Court heard oral arguments this week in Websy, the Fourth Amendment case involving arrests for unlawful entry after officers raided a house party in D.C. While the Justices asked about the application of qualified immunity, they showed no interest in reevaluating the doctrine itself.) Prof. William Baude explains some of the concerns about the doctrine in this Federalist Society podcast.
The ACLU filed suit yesterday in the Northern District of California challenging the Trump Administration's roll-back of the contraception benefit under the Affordable Care Act. The lawsuit seeks declaratory and injunctive relief.
The lawsuit also illustrates the new approach to religion under this administration as stated yesterday in AG Sessions's principles of religious liberty.
The suit, which also includes SEIU-UHW as a plaintiff, argues that the roll-back in HHS's interim final regulations would permit religiously affiliated organizations that currently get an exemption from the contraception-coverage requirement to back out of the requirement altogether. (The exemption permits religiously affiliated organizations to pass the implementation off to their insurer or third-party administrator, so that the organization itself doesn't have anything to do with contraception, but so that employees and students of the organization still get direct and free access through the insurer or third-party administrator. The interim final rules would permit those organizations to deny contraception coverage entirely.)
The complaint argues that the move violates the Establishment Clause, equal protection, the Administrative Procedure Act, and the ACA itself:
By authorizing businesses, non-profit organizations, and universities to impose their religious beliefs on their employees and students, and rob women of health coverage that is otherwise guaranteed by law, the Religious Exemption [interim final rule] violates the Establishment Clause. Furthermore, by authorizing employers to block contraception coverage based on religious or other grounds, both [interim final rules] violate the right to equal protection guaranteed by the Fifth Amendment to the U.S. Constitution. Moreover, because the [interim final rules] were promulgated without good cause for foregoing notice and comment and without providing a reasoned basis for the change in agency position as required by the Administrative Procedure Act, they violate federal statutory requirements that agencies not act in an arbitrary and capricious manner and observe procedures required by law. Finally, the [interim final rules] exceed the statutory authority given to the agencies by the Affordable Care Act.
As to the Establishment Clause, the complaint argues that the purpose and effect of the interim final rules were to advance religion, and that they foster an excessive government entanglement with religion.
It's no coincidence that the interim final rules came out the same day as AG Sessions's principles on religious liberty.
But note that while the ACLU complaint speaks in terms of the Lemon test (purpose, effect, entanglement), AG Sessions's principles don't mention the case. The principles instead discuss the Establishment Clause barely (privileging free exercise) and only in terms of "establishing a religion and coercing Americans to follow it," "restrict[ing] government from interfering [in religion]," "prohibit[ing] government from officially favoring or disfavoring particular religious groups," and "neutrality towards religion."
In other words, AG Sessions's principles back off the Establishment Clause concerns about religious purpose and effect, and even excessive entanglement, and instead emphasize only more blunt forms of government establishment of religion (and downplay even those, in favor of free exercise concerns). It's thus hardly a surprise that HHS would issue these interim final rules, even with a religious purpose and effect: they fall squarely within AG Sessions's free exercise interpretation, and do not violate his (lesser important) establishment interpretation.
In yet other words, these interim regs are just a preview of what's to come under the Sessions approach to religion.
Friday, October 6, 2017
Attorney General Jeff Sessions today released a memo for all executive departments and agencies on Federal Law Protections for Religious Liberty. The document contains 20 "principles of religious liberty" that "should be understood and interpreted in light of the legal analysis set forth in the appendix to this memorandum."
The document came out the same day as HHS's new interim final rules that employers more leeway to object on religious grounds to the Obamacare "contraceptive mandate."
The HHS rules may well predict how we might expect the government to implement AG Sessions's principles. The principles themselves largely rehearse existing law (but emphasizing and tilting toward free exercise), but may open the door to policies (like HHS's new rules) that lean toward religion.
The principles hit on several lightning rods in recent religion debates, including the "contraception mandate," IRS treatment of religious non-profits, abortion, and religious organizations' participation in government contracting and aid programs.
The Appendix on Free Exercise spells out the position on generally applicable laws, stating that "even a neutral, generally applicable law is subject to strict scrutiny under this Clause if it restricts the free exercise of religion and another constitutionally protected liberty, such as the freedom of speech or association, or the right to control the upbringing of ones' children." The provision goes on merely to describe Supreme Court cases in this area, but the language could support a position that laws prohibiting discrimination by sexual orientation are unconstitutional--the exact position DOJ took in Masterpiece Cake. It's not clear under the principles how far the government might extend this argument.
As to government contracting and aid programs, the Appendix on the Establishment Clause gives a flavor of the overall orientation of the document--restating existing law, with a decided tilt toward religion, leaving us to wait and see just how far these principles will extend. Here's that portion in full (citations omitted):
The Establishment Clause, too, protects religious liberty. It prohibits government from establishing a religion and coercing Americans to follow it. It restricts government from interfering in the internal governance or ecclesiastical decisions of a religious organization. And it prohibits government from officially favoring or disfavoring particular religious groups as such or officially advocating particular religious points of view. Indeed, "a significant factor in upholding governmental programs in the face of Establishment Clause attack is their neutrality towards religion." That "guarantee of neutrality is respected, not offended, when the government, following neutral criteria and evenhanded policies, extends benefits to recipients whose ideologies and viewpoints, including religious ones, are broad and diverse." Thus, religious adherents and organizations may, like nonreligious adherents and organizations, receive indirect financial aid through independent choice, or, in certain circumstances, direct financial aid through a secular-aid program.
Thursday, October 5, 2017
Check out the latest American Constitution Society Issue Brief, The Troubling Turn in State Preemption: The Assault on Progressive Cities and How Cities Can Respond, by Richard Briffault, Nestor Davidson, Paul A. Diller, Olatunde Johnson, and Richard C. Schragger. From the intro:
This Issue Brief canvasses the current wave of preemption and the primary legal theories that these state-local conflicts present, as well as claims that might arise as these battles continue. The Brief also explores other possibilities for strengthening home rule to advance progressive local policymaking at a moment when cities increasingly stand on the front lines of economic justice, civil rights, sustainable development, and so many other critical policy domains.
Chicago-Kent's Institute on the Supreme Court of the United States and the Law Review are hosting a symposium on Tuesday, October 17, titled The Supreme Court and American Politics. The program includes three terrific panels and Rick Hasen as keynote. For more information, and to register, click here.
Thursday, September 28, 2017
The Court today agreed to take up a First Amendment challenge to a public sector union fair-share law in Janus v. AFSCME. The case pits non-members' First Amendment right not to pay dues for a union's collective bargaining activities (even if they benefit from those activities) against a union's interest in collecting dues for its collective bargaining efforts that everyone benefits from in a union shop.
This isn't the first time the Court has considered the issue, not by a long shot. The Court originally upheld fair-share laws--state requirements that non-members pay union dues for collective bargaining (but not for a union's political activities)--in 1977 in Abood v. Detroit Board of Education. In that case, the Court held that a state's interests in avoiding non-union-member free-riders and labor harmony permitted a state to require non-members to pay a "fair share" of a union's collective bargaining activities. (Under federal law, the union has to represent even non-members in a union shop.)
But more recently, the Court has hinted in a couple of cases that it's ready to reconsider Abood and overturn fair share laws under the First Amendment. A case, Friedrichs v. California Teachers Association, was teed up for just such a ruling when Justice Scalia passed away. When the 8-member Court decided Friedrichs, it deadlocked, leaving a Ninth Circuit ruling upholding fair share in place.
At the time, Senator Mitch McConnell was refusing to give Judge Garland, President Obama's nominee to replace Justice Scalia, a hearing in the Senate. McConnell famously waited President Obama's term out, and the Senate then confirmed President Trump's nominee, Neil Gorsuch.
With Justice Gorsuch on board, the Court now agreed to hear another case testing fair share, Janus. And that doesn't bode well for fair share laws and public sector unions. If Justice Gorsuch votes with the conservatives (who all presumably would have voted against fair share in Friedrichs), as seems likely or even certain, it'll mark the end of fair share and the likely demise of public sector unions. That's because if the Court strikes fair share, non-members in a union shop will have no requirements and few incentives to pay for the union's collective bargaining activities that benefit them. And without a requirement or incentive to pay fair share, many won't. And seeing that non-members can free ride on the union (because even non-members benefit from a union's collective bargaining activities), members will likely drop out to free ride, too. The siphoning of dues-paying non-members and members will leave the union with less and less resources to support collective bargaining, potentially decimating public sector unions.
There's no guarantee, of course, that a Justice Garland, or any other Obama appointee, would have voted to uphold fair share laws. But with Justice Gorsuch filling Justice Scalia's seat, we can all but guarantee that fair share will go away.
The Supreme Court today granted cert. in Janus v. American Federation, the case challenging union fair-share laws under the First Amendment.
The Court previously deadlocked on the issue. But with the addition of Justice Gorsuch, the Court can rule (likely against union fair share laws).