Friday, June 22, 2018
The Supreme Court ruled today in Ortiz v. United States that a military officer could serve on both the military Court of Criminal Appeals (as an inferior officer) and the Court of Military Commission Review (as a principal officer) without violating the Appointments Clause. The ruling also says that the dual appointment didn't violate federal statutory law.
The ruling leaves in place a conviction upheld by a CCA panel that included an officer who also had an appointment on the CMCR (which reviews military commission decisions--different than court martial rulings--out of Guantanamo Bay).
But before the Court said anything about the dual appointment, it said quite a bit about its jurisdiction to hear the case. Justice Kagan, joined by Chief Justice Roberts and Justices Kennedy, Thomas, Ginsburg, Breyer, and Sotomayor, wrote that the Court (the top of the Article III branch) had jurisdiction over the appeal from the military courts (located in Article I), because "the judicial character and constitutional pedigree of the court-martial system enable this Court, in exercising appellate jurisdiction, to review the decisions of the court sitting at its apex." The Court thus rejected arguments by amicus Professor Aditya Bamzai that the Court lacked jurisdiction over military-court appeals because military courts aren't Article III courts. (The argument is substantially more complicated than that; check out the opinion, and Prof. Bamzai's brief.) Justice Thomas concurred, basing his conclusion that military courts exercise a judicial function (and therefore that the Court can exercise appellate jurisdiction over them) on his originalist argument that adjudicating "private" rights is a core judicial function. Justice Alito, joined by Justice Gorsuch, dissented, arguing that military courts can't exercise judicial power, because that would violate the separation of powers:
Today's decision is unprecedented, and it flatly violates the unambiguous text of the Constitution. Although the arguments in the various opinions issued today may seem complex, the ultimate issue is really quite simple. The Court and the concurrence say that Congress may confer part of the judicial power of the United States on an entity that is indisputably part of the Executive Branch. But Article III of the Constitution vests "[t]he Judicial Power of the United States"--every single drop of it--in "one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish" in compliance with that Article. A decision more contrary to the plain words of the Constitution is not easy to recall.
On the merits, the Court held that the dual appointment didn't violate the Appointments Clause. The reason is easy: That Clause simply doesn't forbid dual service, even when one office is an "inferior office" and the other is a "principal office," especially so long as the two offices have nothing to do with each other:
The problem, [petitioner] suggests, is that the other (inferior officer) judges on the CCA will be "unduly influenced by" Judge Mitchell's principal-officer status on the CMCR.
But that argument stretches too far. This Court has never read the Appointments Clause to impose rules about dual service, separate and distinct from methods of appointment. Nor has it ever recognized principles of "incongruity" or "incompatibility" to test the permissibility of holding two offices. As Ortiz [the petitioner] himself acknowledges, he can "cite no authority holding that the Appointments Clause prohibits this sort of simultaneous service."
And if we were ever to apply the Clause to dual office-holding, we would not start here. Ortiz tells no plausible story about how Judge Mitchell's service on the CMCR would result in "undue influence" on his CCA colleagues. The CMCR does not review the CCA's decisions (or vice versa); indeed, the two courts do not have any overlapping jurisdiction. They are parts of separate judicial systems, adjudicating different kinds of charges against different kinds of defendants. We cannot imagine that anyone on the CCA acceded to Judge Mitchell's views because he also sat on the CMCR . . . . The CAAF put the point well: "When Colonel Mitchell sits as a CCA judge, he is no different from any other CCA judge." So there is no violation of the Appointments Clause.
The Court also ruled that the dual appointment didn't violate federal statutory law.
June 22, 2018 in Appointment and Removal Powers, Cases and Case Materials, Courts and Judging, Executive Authority, Jurisdiction of Federal Courts, News, Opinion Analysis, Separation of Powers | Permalink | Comments (0)
Thursday, June 21, 2018
The Supreme Court today, in South Dakota v. Wayfair, upheld South Dakota's sales tax on out-of-state sellers against a Commerce Clause (or, more precisely, Dormant Commerce Clause) challenge. The ruling opens the door for states to impose sales taxes on internet sellers who lack a physical presence in the state. The ruling also overturned a pair of cases requiring a seller's "physical presence" in a state before the state could tax it.
Justice Kennedy wrote for the Court, joined by Justices Thomas, Ginsburg, Alito, and Gorsuch.
The Court upheld South Dakota's sales tax on out-of-state sellers "as if the seller had a physical presence in the State." That qualifier was significant, because the Supreme Court had previously held in National Bellas Hess, Inc. v. Department of Revenue of Illinois and Quill Corp. v. North Dakota that a state can only impose a sales tax on a business that has a physical presence within the state. South Dakota's tax thus put the brick-and-mortar requirement in Bellas Hess and Quill squarely before the Court.
The Court struck it, and overturned those cases. The Court said that "Quill is flawed on its own terms." First, it wasn't a necessary interpretation of precedent; next, it creates market distortions by creating an incentive to avoid physical presence; and finally, it "imposes the sort of arbitrary, formalistic distinction that the Court's modern Commerce Clause precedents disavow . . . ." Moreover, internet commerce has changed things since the Court created the brick-and-mortar rule. And finally, the rule "is also an extraordinary imposition by the Judiciary on States' authority to collect taxes and perform critical public functions."
Justice Thomas concurred, arguing that "this Court's entire negative Commerce Clause jurisprudence" "can no longer be rationally justified."
Justice Gorsuch also concurred, similarly arguing "[w]hether and how much of [the Court's Dormant Commerce Clause jurisprudence] can be squared with the text of the Commerce Clause . . . are questions for another day."
Chief Justice Roberts dissented, joined by Justices Breyer, Sotomayor, and Kagan. He argued that this is a matter for Congress, given the stakes for the economy:
I agree that Bellas Hess was wrongly decided . . . . The Court argues in favor of overturning that decision because the "Internet's prevalence and power have changed the dynamics of the national economy." But that is the very reason I oppose discarding the physical-presence rule. E-commerce has grown into a significant and vibrant part of our national economy against the backdrop of established rules, including the physical presence rule. Any alteration to those rules with the potential to disrupt the development of such a critical segment of the economy should be undertaken by Congress.
The Supreme Court ruled today in Lucia v. SEC that SEC Administrative Law Judges are "Officers," and that their appointment by SEC employees violates the Appointments Clause. The ruling invalidates the ALJ decision before the Court and sends the case back for another hearing (before a different, validly appointed ALJ, or before the SEC itself). (The SEC "ratified" the appointment of its ALJs while this case was working its way up. But the Court didn't address the significance of the ratification, so we don't know whether this action makes the ALJs' appointments valid. The Court said it didn't matter to this case, though, because the SEC might assign the case to a validly appointed ALJ (outside the ratification) or the SEC itself.)
The ruling may affect the appointments, and decisions, of the many ALJs across the executive branch. (This depends on how they were appointed, and under what authority.) Under the Court's ruling, going forward, ALJs who exercise authority similar to the SEC ALJs will satisfy the Appointments Clause so long as they are appointed by the President, a court, or the head of a department. (The parties agreed that SEC ALJs were "inferior officers," and therefore didn't require presidential nomination and Senate advice and consent, as "principal officers" do. More on that below.)
Justice Kagan wrote for the Court, joined by Chief Justice Roberts and Justices Kennedy, Thomas, Alito, and Gorsuch.
The Court, relying on Freytag v. Commissioner, said that an "Officer" under the Appointments Clause is someone who (1) holds a continuing office and (2) exercises "significant authority" pursuant to the laws of the United States. (The Court distinguished between "Officer" and "employee," who is not covered by the Appointments Clause at all.) The Court said that SEC ALJs easily meet these two requirements. As to the first, it held that they plainly occupy a continuing office. As to the second, it said that Freytag "says everything necessary to decide this case":
the Commission's ALJs exercise the same "significant discretion" when carrying out the same "important functions" as STJs do [in Freytag]. Both sets of officials have all the authority needed to ensure fair and orderly adversarial hearings--indeed, nearly all the tools of federal trial judges. . . . So point for point--straight from Freytag's list--the Commission's ALJs have equivalent duties and powers as STJs in conducting adversarial inquiries.
And at the close of those proceedings, ALJs issue decisions much like that in Freytag--except with potentially more independent effect. . . . By contrast [to Freytag], the SEC can decide against reviewing an ALJ decision at all. And when the SEC declines review (and issues an order saying so), the ALJs decision itself "becomes final" and is "deemed the action of the Commission." That last-word capacity makes this an a fortiori case: If the Tax Court's STJs are officers, as Freytag held, then the Commission's ALJs must be too.
Because the ALJs are "Officers," they have to be appointed by the President, the courts, or the head of the department, here the SEC. And because they were appointed by SEC employees, and not the SEC itself, their appointment was invalid, as was the ALJ's ruling in this case.
Importantly, the Court assumed, as agreed by the parties, that the ALJs were "inferior officers," not "principal officers." This means that they can be appointed by the President, the courts, or the head of a department. This, in turn, means that SEC ALJs--and any other ALJs who weren't appointed by the head of a department--have to be reappointed by the head of a department under law. It also means that this case says nothing about the line between inferior officers and principal officers; it only speaks to the difference between "Officers" and "employees" (which are not covered by the Appointments Clause at all and are therefore not at all subject to Appointments Clause requirements).
The Court ordered the SEC to grant a new hearing to the petitioner, with a different and validly appointed ALJ or with the SEC itself.
Justice Thomas, joined by Justice Gorsuch, concurred, and argued that "Officer," under an original understanding, should sweep much, much more broadly, to "all federal civil officials 'with responsibility for an ongoing statutory duty.'"
Justice Breyer argued that the Court could've resolved the case under the Administrative Procedure Act (which provides for the appointment of ALJs) and Free Enterprise Fund:
I would not answer the question whether the Securities and Exchange Commission's administrative law judges are constitutional "Officers" without first deciding the preexisting Free Enterprise Fund question--namely, what effect that holding would have on the statutory "for cause" removal protections that Congress provided for administrative law judges. If, for example, Free Enterprise Fund means that saying administrative law judges are "inferior Officers" will cause them to lose their "for cause" removal protections, then I would likely hold that the administrative law judges are not "Officers," for to say otherwise would be to contradict Congress' enactment of those protections in the Administrative Procedure Act. In contrast, if Free Enterprise Fund does not mean that an administrative law judge (if an "Office[r] of the United States") would lose "for cause" protections, then it is more likely that interpreting the Administrative Procedure Act as conferring such status would not run contrary to Congress' intent. In such a case, I would more likely hold that, given the other features of the Administrative Procedure Act, Congress did intend to make administrative law judges inferior "Officers of the United States."
Justice Breyer, joined by Justices Ginsburg and Sotomayor, also would have allowed the same ALJ to re-hear the case on remand.
Justice Sotomayor, joined by Justice Ginsburg, dissented, arguing that "Commission ALJs are not officers because they lack final decisionmaking authority."
Tuesday, June 19, 2018
Judge Julie A. Robinson (D. Kansas) ruled yesterday that Kansas's requirement that motor-voter applicants provide proof of citizenship violated the National Voter Registration Act and the constitutional right to vote. In addition, Judge Robinson took Kansas Secretary of State Kris Kobach to task for his conduct over the course of the case, and imposed a remarkable sanction against him.
The ruling should end Kansas's documentary-proof-of-citizenship law, but we'll likely see an appeal (even if almost certainly futile, given the record).
The case tests Kansas's law that motor-voters show proof of citizenship when registering to vote against the NVRA's requirement that states automatically register voters when they apply for a driver's license--and its prohibition on states requiring more information than "necessary to . . . enable State election officials to assess the eligibility of that applicant and to administer voter registration and other parts of the election process." Judge Robinson previously issued a temporary injunction against Kansas's law, upheld by the Tenth Circuit.
As to NVRA preemption, the court applied the Tenth Circuit's rule on NVRA preemption. That rule says that the attestation requirement in Section 5 presumptively satisfies the minimum-information requirement for motor-voter registration. In order to rebut the presumption, the defendant has to show that "they cannot enforce their voter qualifications because a substantial number of noncitizens have successfully registered using the Federal Form" in order to adopt more strenuous information requirements.
The court said that Kobach simply didn't prove that a substantial number of noncitizens have successfully registered using the Federal Form, and that there wasn't another, less burdensome way to enforce the state's citizenship requirement:
Defendant was given the opportunity to retain experts and marshal evidence to meet his burden of demonstrating that "a substantial number of noncitizens have successfully registered to vote under the attestation requirement" in order to rebut the presumption that attestation meets the minimum-information requirement of Section 5 and that nothing less than DPOC is sufficient to meet his eligibility-assessment and registration duties under the NVRA. As described below, the Court finds that on the trial record Defendant has failed to make a sufficient showing on the first inquiry. Moreover, even if Defendant could demonstrate a substantial number of noncitizen registrations, he has not demonstrated that nothing less than the DPOC law is sufficient to enforce the State's citizenship eligibility requirement.
As to the right to vote, Judge Robinson weighed DPOC's benefits and burdens, distinguished the balance in Crawford v. Marion County, and ruled that DPOC violated the right to vote. "Instead, the DPOC law disproportionately impacts duly qualified registration applicants, while only nominally preventing noncitizen voter registration."
Finally, Judge Robinson found that Kobach engaged in a repeated "pattern and practice . . . of flaunting disclosure and discovery rules that are designed to prevent prejudice and surprise at trial." "[G]iven the repeated instances involved, and the fact that Defendant resisted the Court's rulings by continuing to try to introduce such evidence after exclusion, the Court finds that further sanctions are appropriate . . . ." The court ordered Kobach to attend six additional CLE hours (over and above the state's regular requirements), pertaining to federal or Kansas civil rules of procedure or evidence.
Monday, June 18, 2018
In its opinion in Doe v. Boyertown Area School District a unanimous panel of the Third Circuit upheld the school district's gender policy for facilities, affirming the district judge, against a challenge by some students that the inclusive policy violated their constitutional "bodily privacy" rights and Title IX.
The school policy allowed "transgender students to use bathrooms and locker rooms that are consistent with the students’ gender identities as opposed to the sex they were determined to have at birth." The court rejected the argument of some non-transgender students that the policy violated their right to privacy. Even if the school policy were to be subject to strict scrutiny, there was a compelling interest in the protection of transgender students and the means chosen were narrowly tailored. In assessing the claim of the cisgendered students who challenged the school policy, the court stated:
we decline to recognize such an expansive constitutional right to privacy—a right that would be violated by the presence of students who do not share the same birth sex. Moreover, no court has ever done so. As counsel for the School District noted during oral argument, the appellants are claiming a very broad right of personal privacy in a space that is, by definition and common usage, just not that private. School locker rooms and restrooms are spaces where it is not only common to encounter others in various stages of undress, it is expected. The facilities exist so that students can attend to their personal biological and hygienic needs and change their clothing.
Moreover, the court rejected the challengers' reliance on "a case involving an adult stranger sneaking into a locker room to watch a fourteen year-old girl shower," noting that it was "simply not analogous to the present situation "involving transgender students using facilities aligned with their gender identities after seeking and receiving approval from trained school counselors and administrators."
The court likewise rejected the Title IX and state tort law claims, again affirming the district judge.
While the court discusses and relies upon Whitaker v. Kenosha Unified School District, in which the Seventh Circuit in 2017 affirmed a preliminary injunction requiring the school to allow transgender students to access facilities consistent with their gender identity, the policy upheld here was the Boyertown school district's affirmative policy allowing such access. Thus, there seems to be a clear path for school districts to avoid losing if there is litigation.
In its opinion in Gill v. Whitford involving a challenge to Wisconsin's alleged partisan gerrymandering the Court, in an opinion by Chief Justice Roberts, with a concurring opinion by Justice Kagan (joined by Justices Ginsburg, Breyer, and Sotomayor), found that the plaintiffs did not prove sufficient Article III standing to sustain the relief granted in the divided decision by the three judge court. Additionally, in a per curiam opinion in Benisek v. Lamone, involving a challenge to alleged political gerrymandering in Maryland, the Court declined to disturb the three judge court's decision not to grant to a preliminary injunction.
Chief Justice Roberts' opinion for the Court in Gill admits that
Over the past five decades this Court has been repeatedly asked to decide what judicially enforceable limits, if any, the Constitution sets on the gerrymandering of voters along partisan lines. Our previous attempts at an answer have left few clear landmarks for addressing the question.
The Chief Justice's Gill opinion does little, if anything, to remedy this lack of "landmarks" in the doctrine. However, the Chief Justice's opinion continues that the Court's "efforts to sort through those considerations have generated conflicting views both of how to conceive of the injury arising from partisan gerrymandering and of the appropriate role for the Federal Judiciary in remedying that injury" and it is this set of "conflicting views" that the Chief Justice's opinion sets out to resolve. The resolution seems simple: to the extent that plaintiffs' "alleged harm is the dilution of their votes" in violation of the Equal Protection Clause, "that injury is district specific." In sum, the injury must be an individual one that arises from an individual's vote being diluted by the voter's placement in a "cracked" or "packed" district. The Chief Justice's opinion concludes that while the individual plaintiffs had "pleaded a particularized burden along such lines," they failed to prove those facts at trial.
Yet this simplicity is less straightforward when combined with Justice Kagan's concurring opinion, which correctly notes that in addition to the Equal Protection Clause claim of vote dilution, "at some points in this litigation, the plaintiffs complained of a different injury — an infringement of their First Amendment right of association." [Indeed, the opinion for the three judge court seems to combine the equal protection and First Amendment claims.] On the First Amendment claim, Kagan writes:
when the harm alleged is not district specific, the proof needed for standing should not be district specific either. And the associational injury flowing from a statewide partisan gerrymander, whether alleged by a party member or the party itself, has nothing to do with the packing or cracking of any single district’s lines. The complaint in such a case is instead that the gerrymander has burdened the ability of like-minded people across the State to affiliate in a political party and carry out that organization’s activities and objects. Because a plaintiff can have that complaint without living in a packed or cracked district, she need not show what the Court demands today for a vote dilution claim. Or said otherwise: Because on this alternative theory, the valued association and the injury to it are statewide, so too is the relevant standing requirement.
Moreover, even on the equal protection vote dilution claim, Kagan's opinion instructs that the Court's determination of remand rather than dismissal means that
the plaintiffs—both the four who initially made those assertions and any others (current or newly joined)—now can introduce evidence that their individual districts were packed or cracked. And if the plaintiffs’ more general charges have a basis in fact, that evidence may well be at hand. Recall that the plaintiffs here alleged—and the District Court found —that a unified Republican government set out to ensure that Republicans would control as many State Assembly seats as possible over a decade (five consecutive election cycles). To that end, the government allegedly packed and cracked Democrats throughout the State, not just in a particular district (see, e.g., Benisek v. Lamone) or region. Assuming that is true, the plaintiffs should have a mass of packing and cracking proof, which they can now also present in district-by-district form to support their standing. In other words, a plaintiff residing in each affected district can show, through an alternative map or other evidence, that packing or cracking indeed occurred there.
[emphasis added]. The Court remanded and declined to "direct dismissal" given that this "is not the usual case" because the it "concerns an unsettled kind of claim," the "contours and justiciability of which are unresolved." Justice Thomas, joined by Justice Gorsuch, wrote separately to disagree with the remand, arguing there is "nothing unusual" about the case and that the matter should be dismissed.
In the five page per curiam opinion in Benisek v. Lamone, the Court declined to disturb the three judge court's denial of a motion for preliminary injunction. Seemingly without irony, the Court noted that one rationale for the three judge court's denial of a preliminary injunction was its concern about assessing the merits of the partisan gerrymandering claim and its prediction it would be "better equipped to make that legal determination and to chart a wise course" after the United States Supreme Court issued its decision in Gill. However, the per curiam opinion of the Court also reasoned that even if the plaintiffs were likely to succeed on the merits, the other factors in a preliminary injunction decision including the balance of equities and the public interest "tilted against" the issuance of a preliminary injunction.
In sum, the decisions in Gill and Benisek leave the constitutionality of partisan gerrymandering as unsettled as before.
[image: "the gerrymander" via]
June 18, 2018 in Association, Elections and Voting, Equal Protection, First Amendment, Fourteenth Amendment, Opinion Analysis, Reconstruction Era Amendments, Standing, Supreme Court (US) | Permalink | Comments (0)
Thursday, June 14, 2018
In its opinion in Minnesota Voters Alliance v. Mansky, the Court held that a provision of a Minnesota law regulating voters' political attire violates the First Amendment. Recall from our preview that Minn. Stat. §211B.11, entitled "Soliciting near polling places," includes among its petty misdemeanor violations a prohibition of political attire: "A political badge, political button, or other political insignia may not be worn at or about the polling place on primary or election day."
The Court's majority opinion, by Chief Justice Roberts, finds that the "polling place" on election day constitutes a nonpublic forum under the First Amendment; it is "government- controlled property set aside for the sole purpose of voting" and is a "special enclave, subject to greater restriction." The question as phrased by the Court was therefore whether "Minnesota’s ban on political apparel is 'reasonable in light of the purpose served by the forum': voting." As in the oral argument, the Court considered the relevance of Burson v. Freeman (1992), in which the Court upheld a Tennessee statute which prohibited the solicitation of votes and the display or distribution of campaign materials within 100 feet of the entrance to a polling place.
Analogizing to Burson, the Court upheld Minnesota's objective in prohibiting voters from wearing particular kinds of expressive apparel or accessories while inside the polling place.
[W]e see no basis for rejecting Minnesota’s determination that some forms of advocacy should be excluded from the polling place, to set it aside as “an island of calm in which voters can peacefully contemplate their choices.” Brief for Respondents 43. Casting a vote is a weighty civic act, akin to a jury’s return of a verdict, or a representative’s vote on a piece of legislation. It is a time for choosing, not campaigning. The State may reasonably decide that the interior of the polling place should reflect that distinction.
However, the Court found that the Minnesota statute failed to satisfy the reasonable standard in the means chosen to achieve its goal: "the unmoored use of the term 'political' in the Minnesota law, combined with haphazard interpretations the State has provided in official guidance and representations to this Court, cause Minnesota’s restriction to fail even this forgiving test." The Court found "political" far too broad (citing dictionary definitions) and likewise found that "issue oriented material" was also too broad (" A rule whose fair enforcement requires an election judge to maintain a mental index of the platforms and positions of every candidate and party on the ballot is not reason- able. Candidates for statewide and federal office and major political parties can be expected to take positions on a wide array of subjects of local and national import.")
However, the Court gestured toward acceptable means chosen:
That is not to say that Minnesota has set upon an impossible task. Other States have laws proscribing displays (including apparel) in more lucid terms. See, e.g., Cal. Elec. Code Ann. §319.5 (West Cum. Supp. 2018) (prohibiting “the visible display . . . of information that advocates for or against any candidate or measure,” including the “display of a candidate’s name, likeness, or logo,” the “display of a ballot measure’s number, title, subject, or logo,” and “[b]uttons, hats,” or “shirts” containing such information); Tex. Elec. Code Ann. §61.010(a) (West 2010) (prohibiting the wearing of “a badge, insignia, emblem, or other similar communicative device relating to a candidate, measure, or political party appearing on the ballot, or to the conduct of the election”). We do not suggest that such provisions set the outer limit of what a State may proscribe, and do not pass on the constitutionality of laws that are not before us. But we do hold that if a State wishes to set its polling places apart as areas free of partisan discord, it must employ a more discernible approach.
The appendix lists thirty-four states prohibiting accessories or apparel in the polling place.
Dissenting, Justice Sotomayor, joined by Justice Breyer, would have certified the issue of the interpretation of the statute to the Minnesota Supreme Court. The Court, in footnote 7, explained its decision not to certify, including that the request came "late in the day," but Sotomayor argued that "certification is not an argument subject to forfeiture by the parties" and is instead a matter of comity. Moreover, she contended that having an interpretation of the statute, including the term "political" (which she noted the Court had "little difficulty discerning its meaning in the context of [other] statutes subject to First Amendment challenges, citing cases), would "obviate the hypothetical line-drawing problems that form the basis of the Court’s decision today."
Thus, the import of Minnesota Voters Alliance v. Mansky is that states can prohibit certain expressive apparel and accessories at the polling place on election day, but the courts must find the statutory definitions sufficiently defined as to be "reasonable."
Judge Rosemary Collyer (D.D.C.) ruled yesterday that a journalist's due process claim against the government for including him on a drone-strike kill list can move forward. Judge Collyer ruled that the journalist had standing, and that his due process challenge did not present a non-justiciable political question.
The case originally involved two journalists who challenged their inclusion on the government's drone-strike kill list. They lodged a series of challenges, including violation of the Administrative Procedure Act (because inclusion violated the government's criteria for inclusion, adopted under President Obama); violations of the EO banning assassinations, the Geneva Conventions, the International Covenant on Civil and Political Rights, and federal law; and violations of due process.
The government moved to dismiss the case for lack of standing and because it raised a non-justiciable political question. The court granted the motion in part and denied it in part.
The court ruled that one of the plaintiffs lacked standing, because he failed sufficiently to allege a harm. The court said that the other plaintiff demonstrated harm (and causation and redressability), but that claims based on the APA, the EO, the Geneva Conventions, the ICCPR, and related federal law all raised a political question. As to the APA claim, the court said that it had no judicially manageable standards for resolving it. The court said that the presidential guidance for inclusion on the kill list didn't provide sufficiently determinate standards for judicial review. (The more vague a government policy, the less likely a plaintiff can challenge it under the APA.) As to the other claims, the court merely said that "the process of determining whether Defendants exceeded their authority or violated any of the statutes referenced in the Complaint would require the Court to make a finding on the propriety of the alleged action, which is prohibited by the political question doctrine."
But as to the due process claim, the court concluded that there was no political-question-doctrine bar to moving forward. The court emphasized that the plaintiff's claim was against his inclusion on the kill list, and not that a drone strike was invalid (which might have raised a political question):
[The plaintiff] does not seek a ruling that a strike by the U.S. military was mistaken or improper. He seeks his birthright instead: a timely assertion of his due process rights under the Constitution to be heard before he might be included on the Kill List and his First Amendment rights to free speech before he might be targeted for lethal action due to his profession.
The ruling does not touch on the merits; it merely allows the due process portion of one plaintiff's case to move forward. Still, getting over the political question doctrine in a case like this is a significant victory for the plaintiff.
June 14, 2018 in Cases and Case Materials, Courts and Judging, Executive Authority, Jurisdiction of Federal Courts, News, Opinion Analysis, Political Question Doctrine, Separation of Powers, Standing | Permalink | Comments (0)
Wednesday, June 13, 2018
In its unanimous opinion in Edrei v. Maguire (Bratton), a panel of the Second Circuit upheld the the denial of a motion to dismiss a complaint alleging excessive force under the Fourteenth Amendment's Due Process Clause by police officers using a LRAD - - - long-range acoustic device - - - during a protest. The defendants claimed both that the LRAD did not constitute excessive force and that they were entitled to qualified immunity because it had not been clearly established at the time of the 2014 protest that using a LRAD could be excessive force.
Chief Judge Robert Katzmann's opinion discussed LRAD, noting that the New York Police Department was using a "portable Model 100X, which also has loudspeaker and area denial functions."
The 100X’s product sheet boasts that it has a maximum volume of 136 decibels at one meter and the manufacturer guidelines caution not to use it within 10 to 20 meters of people. A diagram on the 100X’s control panel shows a red beam emanating from the front of the device and instructs: “DO NOT ENTER WITHIN 10 METERS DURING CONTINUOUS OPERATION.”
The plaintiffs, who were subjected to the LRAD during a protest in New York after "a Staten Island grand jury declined to indict the NYPD officer who placed Eric Garner, an unarmed black man, in a fatal chokehold." During the protest,
with no warning, NYPD officers discharged pepper spray. Several plaintiffs who had been watching the arrests began to flee. Seconds later the wail of a high‐pitched alarm began pulsing though the streets. The defendants had activated the LRAD’s area denial function. According to plaintiffs, they had not been ordered to disperse and no such order is audible on the video.
Judge Katzmann's opinion rejected the defendants' argument that the LRAD could not constitute "excessive force." The opinion relied on the "shocks the conscience" test as it had been explained in the Second Circuit with regard to excessive force as considering several factors: “the need for the application of force, the relationship between the need and the amount of force that was used, the extent of the injury inflicted, and whether the force was . . . [inflicted] maliciously or sadistically.” The court held that this Second Circuit precedent was not changed by Kingsley v. Hendrickson, 135 S. Ct. 2466 (2015), decided after the 2014 protest. Moreover, applying the standard to the allegations, the security threat was low, the proportionality of the force used was "stark," there were significant injuries, and there are no allegations that the police officers attempted to temper their use of force.
The court also rejected the police officers' claim to qualified immunity. The defendants argued that it was not clearly established at the time of the 2014 protest that "using force in crowd control violates due process."
But that is like saying police officers who run over people crossing the street illegally can claim immunity simply because we have never addressed a Fourteenth Amendment claim involving jaywalkers. This would convert the fair notice requirement into a presumption against the existence of basic constitutional rights. Qualified immunity doctrine is not so stingy.
Additionally, the court discussed the protestors First Amendment rights and stated that "Were this not enough, a wealth of cases inform government officials that protesters enjoy robust constitutional protections."
The court did stress that the opinion was a "narrow" one. As an interlocutory appeal from the denial of a motion to dismiss, this is expected. Nevertheless, the opinion is certainly a victory for the plaintiffs in their due process challenge to the use of LRAD.
[image: LRAD 500 x in NYC during 2011 via]
Thursday, June 7, 2018
Senior Judge Michael M. Baylson (E.D. Pa.) ruled in favor of Philadelphia yesterday in its sanctuary-cities case against the Trump Administration. The court held that the three immigration-enforcement conditions that Attorney General Jeff Sessions imposed on sanctuary cities as conditions of receipt of federal DOJ JAG grants violated federal law and the Constitution.
The ruling goes farther than the Seventh Circuit case also striking the conditions, in that Judge Baylson also ruled Section 1373 unconstitutional. Notably, that portion of the court's decision was based on the Supreme Court's recent ruling in Murphy v. NCAA.
Philadelphia challenged the three conditions that AG Sessions unilaterally imposed on sanctuary cities in exchange for federal JAG grant money--(1) the requirement that local jurisdictions provide ICE officials access to local prisons, (2) the requirement that local jurisdictions notify ICE when they release aliens from local prisons, and (3) the requirement that local jurisdictions certify compliance with 8 U.S.C. Sec. 1373. (1373 says that a local government can't restrict its officers from communicating with ICE about the citizenship or immigration status of a person.)
The court held that the first two conditions amounted to ultra vires conduct not authorized by Congress and violated the separation of powers and the Spending Clause (similar to the Seventh Circuit ruling). The court also held that these conditions were arbitrary and capricious under the Administration Procedure Act (because the government failed to support the putative public-safety reasons for the conditions).
The court went on to strike Section 1373 under the Court's approach in Murphy:
8 U.S.C. Secs. 1373(a) and 1373(b) by their plain terms prevent "Federal, State, or local government entit[ies] or official[s] from" engaging in certain activities. These provisions closely parallel the anti-authorization condition in [the Professional and Amateur Sports Protection Act] which was at issue in Murphy. Specifically, the PASPA provision violated the Tenth Amendment because it "unequivocally dictates what a state legislature may and may not do." Sections 1373(a) and (b) do the same, by prohibiting certain conduct of government entities or officials.
The court said that AG Sessions couldn't condition the receipt of federal funds on compliance with an unconstitutional provision like Section 1373, so the third condition, like the first and second, was also invalid.
In his Order in Li v. United States Immigration and Customs Enforcement (ICE), Southern District of California United States District Judge Dana Sabraw denied the government's motion to dismiss the constitutional claim challenging ICE's separation of plaintiff parents and children at the border.
Judge Sabraw first found that the complaint was not moot because the government defendants "have not shown that Ms. L. was released from detention and reunited with her daughter for reasons other than this litigation," and thus "the voluntary cessation exception applies to this case."
In considering whether the complaint's allegations of a denial of due process under the Fifth Amendment should be dismissed, Judge Sabraw discussed the bedrock principles that the Constitution applies to non-citizens within the United States and that the Due Process Clause includes a "right to family integrity or to familial association." Judge Sabraw distinguished other cases in the immigration context finding that here the plaintiffs were detained with their children:
Here, the Court is faced with Plaintiffs who present different circumstances, but each Plaintiff has demonstrated that the right to family integrity encompasses her particular situation. According to the allegations in the Amended Complaint, Ms. L. did everything right. She and her child presented at the port of entry and requested asylum. She passed a credible fear screening interview, was taken out of expedited removal proceedings, and placed in removal proceedings before an IJ to pursue her asylum claim. Ms. C., by contrast, did not do everything right. She committed a crime by entering the United States illegally, and was prosecuted and imprisoned for her transgression: 25 days in custody for misdemeanor violation of 8 U.S.C. § 1325 (illegal entry). However, having served her sentence, Ms. C. was then returned to ICE detention to pursue her asylum claim, as she too had passed a credible fear screening. Ms. C., therefore, is on equal footing with Ms. L. for purposes of pursuing her due process claim. Ms. L.’s claim is based on the initial separation from her child, while Ms. C.’s claim is based on the continued separation from her child. Both claims focus on government conduct in separating families during removal proceedings.
Judge Sabraw applied the "shocks the conscience" test for due process and elaborated that due process protects against "governmental conduct that violates the “decencies of civilized conduct," interferes with rights “‘implicit in the concept of ordered liberty," and is so “‘brutal’ and ‘offensive’ that it [does] not comport with traditional ideas of fair play and decency"(citing cases).
Judge Sabraw recounted the allegations of trauma for both parents and children, and concluded:
These allegations call sharply into question the separations of Plaintiffs from their minor children. This is especially so because Plaintiffs allegedly came to the United States seeking shelter from persecution in their home countries, and are seeking asylum here. For Plaintiffs, the government actors responsible for the “care and custody” of migrant children have, in fact, become their persecutors. This is even more problematic given Plaintiffs’ allegations and assertions that there is a government practice, and possibly a forthcoming policy, to separate parents from their minor children in an effort to deter others from coming to the United States. This alleged practice is being implemented even when parents like Ms. L. and Ms. C. have passed credible fear interviews, and therefore, are positioned to present asylum claims meriting consideration by an IJ in their removal proceedings. These allegations sufficiently describe government conduct that arbitrarily tears at the sacred bond between parent and child, and is emblematic of the “exercise of power without any reasonable justification in the service of an otherwise legitimate governmental objective[.]” [citation omitted] Such conduct, if true, as it is assumed to be on the present motion, is brutal, offensive, and fails to comport with traditional notions of fair play and decency. At a minimum, the facts alleged are sufficient to show the government conduct at issue “shocks the conscience” and violates Plaintiffs’ constitutional right to family integrity. Accordingly, Defendants’ motion to dismiss Plaintiffs’ due process claim is denied.
Judge Sabraw did dismiss the counts alleging a violation of the Administrative Procedure Act (finding "Plaintiffs have failed to allege facts sufficient to show “final agency action” subject to review under the APA") and a violation of the Asylum Act (finding no authority for a private right of action).
But the claim for a Due Process Clause violation will proceed as the United States government seems to arguing family separation is a permanent policy.
[image: "Cloak of Conscience" by Anna Chromy, via]
Monday, June 4, 2018
In its opinion today authored by Justice Kennedy in Masterpiece Cakeshop Ltd. v. Colorado Civil Rights Commission, the Court found that the cakeshop owner's First Amendment Free Exercise Clause right was infringed upon by the Colorado Civil Rights Commission. Recall that the Civil Rights Commission had found the cakemaker violated the state equal accommodations statute protection on the basis of sexual orientation when the cakemaker refused to be employed for a same-sex wedding cake.
Justice Kennedy's opinion decides the controversy on the basis of Church of Lukumi Babalu Aye, Inc. v. Hialeah (1993), in which the Court found that the City of Hialeah's prohibition of killing animals was aimed at the religion of Santeria, especially given the numerous exceptions in the ordinance. Here, Kennedy's opinion for the Court rejects the ALJ's conclusion that the Colorado anti-discrimination statute was a neutral law of general applicability (and thus should be evaluated under a rational basis test), finding instead that the Colorado Civil Rights Commission in its adjudication of this case was not neutral but expressed hostility: "The Civil Rights Commission’s treatment of his case has some elements of a clear and impermissible hostility toward the sincere religious beliefs that motivated his [the cakemaker's] objection."
These expressions of hostility surfaced in the oral argument as we noted in a specific statement from Kennedy quoting one of the civil rights commissioners ( "freedom of religion used to justify discrimination is a despicable piece of rhetoric") which Kennedy asked counsel to disavow. This foreshadowed the opinion's quotation of the commissioner "Freedom of religion and religion has been used to justify all kinds of discrimination throughout history, whether it be slavery, whether it be the holocaust, whether it be—I mean, we—we can list hundreds of situations where freedom of religion has been used to justify discrimination. And to me it is one of the most despicable pieces of rhetoric that people can use to—to use their religion to hurt others.”
The opinion then stated:
To describe a man’s faith as “one of the most despicable pieces of rhetoric that people can use” is to disparage his religion in at least two distinct ways: by describing it as despicable, and also by characterizing it as merely rhetorical—something insubstantial and even insincere. The commissioner even went so far as to compare [cakemaker] Phillips’ invocation of his sincerely held religious beliefs to defenses of slavery and the Holocaust. This sentiment is inappropriate for a Commission charged with the solemn responsibility of fair and neutral enforcement of Colorado’s anti- discrimination law—a law that protects discrimination on the basis of religion as well as sexual orientation.
With the decision based on this, the Court admittedly sidesteps the more contentious issues and widespread issues of the case:
The outcome of cases like this in other circumstances must await further elaboration in the courts, all in the context of recognizing that these disputes must be resolved with tolerance, without undue disrespect to sincere religious beliefs, and without subjecting gay persons to indignities when they seek goods and services in an open market.
Perhaps another limiting factor is that the Court observes that the cakebaker's refusal occurred before Obergefell v. Hodges (2015) when Colorado law did not authorize same-sex marriages. However, the Court also pointed to language in Obergefell that religious objections to same-sex marriage are protected by the First Amendment.
Yet there is also the issue of arguably inconsistent rulings from the civil rights commission.
Justice Kagan, in a brief concurring opinion joined by Justice Breyer, stressed the fault found with the Civil Rights Commission that did not give the cakemaker's religious views “neutral and respectful consideration.” She argued that any "inconsistent" rulings could be explained: the cakemakers in other cases objected to placing words on the cakes that they found offensive; in Masterpiece, the cakemaker objected to the customers who were purchasing sentiments he would provide for others.
In dissent, Justice Ginsburg, joined by Justice Sotomayor, concluded that there was not sufficient evidence of "hostility" neither in the arguably inconsistent rulings nor in the statements. As to the statements,
Whatever one may think of the statements in historical context, I see no reason why the comments of one or two Commissioners should be taken to overcome Phillips’ refusal to sell a wedding cake to Craig and Mullins. The proceedings involved several layers of independent decisionmaking, of which the Commission was but one.
First, the Division had to find probable cause that Phillips violated CADA. Second, the ALJ entertained the parties’ cross-motions for summary judgment. Third, the Commission heard Phillips’ appeal. Fourth, after the Commission’s ruling, the Colorado Court of Appeals considered the case de novo. What prejudice infected the determinations of the adjudicators in the case before and after the Commission?
For Ginsburg, then, this was "far removed from the only precedent upon which the Court relies, Church of Lukumi Babalu Aye, Inc. v. Hialeah (1993), where the government action that violated a principle of religious neutrality implicated a sole decisionmaking body, the city council."
Certainly, the Court's opinion rests on narrow grounds, perhaps unique to this case. But it nevertheless represents the Court chipping away at equality on the basis of sexual orientation.
Friday, June 1, 2018
The Seventh Circuit this week rebuffed a First Amendment challenge to the phrase "In God we Trust" on our currency by a non-theistic Satanist. The unsurprising ruling allows the government to continue to print that phrase on money.
The plaintiff challenged the phrase under the Establishment Clause, the Free Exercise Clause, and the Speech Clause, among others. The court rejected each.
As to the Establishment Clause, the court said that the phrase wasn't an endorsement of religion, that it didn't coerce religious beliefs, and that it wasn't based on a forbidden religious purpose. In short, the court said that the phrase is simply a part of our nation's heritage:
The inclusion of the motto on currency is similar to other ways in which secular symbols give a nod to the nation's religious heritage. Examples include the phrase "one nation under God," which has been in the Pledge of Allegiance since 1954, as well as the National Day of Prayer, which has existed in various forms since the dawn of the country and is now codified [in the U.S.C.]. Moreover, when the religious aspects of an activity account for "only a fraction," the possibility that anyone could see it as an endorsement of religion is diluted. In the case of currency, the motto is one of many historical reminders; others include portraits of presidents, state symbols, monuments, notable events such as the Louisiana Purchase, and the national bird. In this context, a reasonable observer would not perceive the motto on currency as a religious endorsement.
As to free exercise, the court said that the plaintiff's "claim fails because the motto's placement on currency has the secular purpose of recognizing the religious component of our nation's history."
As to free speech, the court rejected the plaintiff's claim that the phrase amounted to forced speech, because nobody would regard the phrase as the plaintiff's own speech.
The court also rejected the plaintiff's RFRA claim (no substantial burden on the plaintiff's practice of Satanism) and his equal protection claim (because the government had at least one legitimate objective, "acknowledging an aspect of our nation's heritage").
Wednesday, May 30, 2018
In its opinion in United States v. Schock, a panel of the Seventh Circuit affirmed the denial of a motion to dismiss a criminal indictment by former Illinois Congressperson Aaron Schock (pictured below). Schock was charged with crimes committed as a Congressperson including "filing false or otherwise improper claims for reimbursement for his travel and furnishings, and with failing to report correctly (and pay tax on) those receipts that count as personal income."
Schock moved the dismiss the indictment as impermissible under the Constitution's Speech or Debate Clause, Art. I §6 cl. 1, which provides that members of Congress “for any Speech or Debate in either House, shall not be questioned in any other Place.” The district judge denied the motion and the Seventh Circuit panel, in its opinion by Judge Easterbrook, allowed an interlocutory appeal. The panel held, however, that "on the merits" the Speech or Debate Clause "does not help Schock, for a simple reason: the indictment arises out of applications for reimbursements, which are not speeches, debates, or any other part of the legislative process." In short, submitting a false claim under established rules differs from the formulation of those rules.
However, the court noted that Schock’s principal argument rests on the Rulemaking Clause, Art. I §5 cl. 2, which provides “Each House may determine the Rules of its Proceedings, punish its Members for disorderly Behaviour, and, with the Concurrence of two thirds, expel a Member.” As the court stated, "the rules about reimbursable expenses were adopted under this clause and, Schock insists, because only the House may adopt or amend its rules, only the House may interpret them. Ambiguity in any rule (or in how a rule applies to a given claim for reimbursement) makes a prosecution impossible, Schock concludes, because that would require a judge to interpret the rules."
The court was not sympathetic to this argument:
Judges regularly interpret, apply, and occasionally nullify rules promulgated by the President or another part of the Executive Branch, as well as statutes enacted by the Legislative Branch; why would reimbursement rules be different?
However, Judge Easterbrook's opinion stated that the court "need not come to closure" on the issue of whether there is something "special" about legislative rules, acknowledging contrary precedent, because an interlocutory appeal on that ground is not available.
Neither the separation of powers generally, nor the Rulemaking Clause in particular, establishes a personal immunity from prosecution or trial. The separation of powers is about the allocation of authority among the branches of the federal government. It is an institutional doctrine rather than a personal one. The Speech or Debate Clause, by contrast, sets up a personal immunity for each legislator. The Supreme Court limits interlocutory appeals to litigants who have a personal immunity—a “right not to be tried.” No personal immunity, no interlocutory appeal.
Thus, Schock can appeal on this basis only after judgment. Judge Easterbrook's opinion foreclosed the possibility of success on this issue by the en banc Seventh Circuit: the opinion was "was circulated before release to all judges in active service;" and "None favored a hearing en banc."
[image of Aaron Schock via]
Judge Colleen Kollar-Kotelly (D.D.C.) today tossed two lawsuits filed by Kaspersky Lab arising out of the government's rejection of Kaspersky products. The ruling ends Kaspersky's challenges and means that the federal prohibition on government use of Kaspersky products stays on the books.
Kaspersky Lab, the Russian cyber-security firm, filed its first suit in response to the Department of Homeland Security's Binding Operative Directive that required all federal departments and agencies to stop using Kaspersky products. DHS issued the BOD out of concern that Kaspersky products on the government's networks and computer systems could create a security risk. Kaspersky argued that the BOD violated the Administrative Procedure Act and the Fifth Amendment.
Kaspersky filed its second suit in response to the National Defense Authorization Act, which also prohibited the government from using Kaspersky products. (The NDAA contained a somewhat broader prohibition, effective October 1, 2018.) Kaspersky argued that the NDAA was an unconstitutional bill of attainder.
The court ruled first that the NDAA did not violate the Bill of Attainder Clause, because the prohibition wasn't "punishment" under any of the three tests adopted by the D.C. Circuit (the "Historical Test," the "Functional Test," or the "Motivational Test"). The court dismissed this suit.
The court next ruled that Kaspersky lacked standing to challenge DHS's BOD, because any ruling in its favor wouldn't redress its harm. In particular, the court said that revoking the BOD wouldn't do anything to allow Kaspersky to sell its products to the government, because the (valid) prohibition in the NDAA would prohibit that. The court said that the government, knowing that the NDAA's ban takes effect on October 1, 2018, wouldn't purchase any Kaspersky products in the interim.
The ruling means that the bans on Kaspersky products stay on the books, and the government must remove all Kaspersky products from its systems.
Tuesday, May 29, 2018
The Sixth Circuit's opinion in Theile v. Michigan upheld Michigan Constitution art VI §19(3) which provides that no person "shall be elected or appointed to a judicial office after reaching the age of 70 years." Judge Theile, who must run for reelection in 2020 when he will be 71, argued that the Michigan constitutional provision (and statutes), violated the Equal Protection Clause of the Fourteenth Amendment.
The Sixth Circuit panel found that Judge Theile's argument was foreclosed by Sixth Circuit precedent upholding the very same provision as well as United States Supreme Court's decision in Gregory v. Ashcroft, 501 U.S. 452 (1991) upholding a similar provision in Missouri. The opinion noted that Gregory was decided only twenty-seven years ago, and the Sixth Circuit case a "mere eighteen," and there was no basis to conclude that the reasoning of those cases has "somehow been overtaken by interceding events and rendered invalid."
Thus, the Sixth Circuit declined to raise the level of scrutiny of the age-based classification to intermediate scrutiny despite Theile's argument that age, like gender, is "immutable." Applying rational basis scrutiny, the Sixth Circuit acknowledged Theile's points that federal judges face no age limits, that eighteen states have no mandatory judicial retirement age, and that many United States Supreme Court justices serve past the age of 70 which is an "archaic" limit. However, the rational basis standard is exceedingly lenient and the Court in Gregory held that Missouri’s judicial age limitation of 70 was rationally related to such legitimate purposes as avoiding laborious testing of older judges’ physical and mental acuity, promoting orderly attrition of judges, and recognizing that judges’ remoteness from public view makes determination of competency, and removal from office, more difficult than for other office-holders.
Judges looking to change the maximum age limits or mandatory retirement ages may have to look for changes in the underlying laws rather that equal protection.
[image: Vanity Fair circa 1900 via]
Thursday, May 24, 2018
The Ninth Circuit yesterday upheld Montana's political committee reporting and disclosure requirements against First Amendment challenges by a group whose major purpose was not political advocacy. The ruling keeps these requirements on the books.
The case arose when the group Montanans for Community Development refrained from sending a pro-job-growth mailer that mentioned certain candidates in upcoming state elections, because it would have to comply with state political committee reporting and disclosure requirements. MCD sued, arguing that the requirements were unconstitutionally vague, that they were overbroad, and that they were unconstitutional as applied to MCD (as a group whose major purpose wasn't political advocacy).
The court, in a brief and unpublished opinion, rejected these claims. The court said that Montana law put a "person of ordinary intelligence [on] fair notice of what is prohibited" (and thus wasn't vague); that the requirements were substantially related to sufficiently important government interests of informing the electorate, deterring actual corruption and avoiding the appearance of corruption, and gathering data to enforce more substantive electioneering restrictions (and thus wasn't overbroad); and that "[p]olitical committee reporting and disclosure laws can extend beyond groups whose major purpose is political advocacy" (and thus survived MCD's as-applied challenge).
Wednesday, May 23, 2018
In her Opinion in Knight First Amendment Institute v. Trump, United States District Judge for the Southern District of New York, Naomi Reice Buchwald, found that the President's Twitter account, @realdonaldtrump, is in violation of the First Amendment when it blocks other Twitter users based on their political views.
Judge Buchwald's 75 page opinion is well-structured and well-reasoned, proceeding through the multiple and complex issues posed by the novel issue. The parties' extensive Stipulation formed the basis of the summary judgment order.
Judge Buchwald first found that the named plaintiffs and organizational plaintiff had standing as to both the President and Dan Scavino, the White House Social Media Director with access to the Twitter account. But she granted summary judgment in favor of Defendant Sarah Huckabee Sanders, who did not have access to the Twitter account (and Hope Hicks, no longer at the White House, was dismissed as a Defendant).
On the First Amendment issue, Judge Buchwald concluded that the Twitter account was governmental in nature as was the act of blocking other Twitter users. The judge rejected the argument that blocking was not state action because the blocking functionality was afforded every user: "but the power to exclude is also one afforded generally to every property owner. When a government acts to 'legally preserve the property under its control for the use to which it is dedicated,' it behaves 'like the private owner of property.'" She also rejected the argument that because the Twitter account was begun in 2009 it was not governmental now:
Here, the President and Scavino’s present use of the @realDonaldTrump account weighs far more heavily in the analysis than the origin of the account as the creation of private citizen Donald Trump. That latter fact cannot be given the dispositive weight that defendants would ascribe to it. Rather, because the President and Scavino use the @realDonaldTrump account for governmental functions, the control they exercise over it is accordingly governmental in nature.
Indeed, quoting from the parties' Stipulation, the Judge recounted:
With the assistance of Mr. Scavino in certain instances, President Trump uses @realDonaldTrump, often multiple times a day, to announce, describe, and defend his policies; to promote his Administration’s legislative agenda; to announce official decisions; to engage with foreign political leaders; to publicize state visits; to challenge media organizations whose coverage of his Administration he believes to be unfair; and for other statements, including on occasion statements unrelated to official government business. President Trump sometimes uses the account to announce matters related to official government business before those matters are announced to the public through other official channels.” Stip. ¶ 38. “For example, the President used @realDonaldTrump to announce on June 7, 2017, for the first time, that he intended to nominate Christopher Wray for the position of FBI director.” Stip. ¶ 38.
But the real issue for the forum analysis was not the President's tweets, which the Judge held to be "government speech" not subject to First Amendment constraints as the United States Supreme Court recently explained in Walker v. Texas Division, Sons of Confederate Veterans.
Instead, the "interactive space associated with each of the President’s tweets is not government speech and is properly analyzed under the Supreme Court’s forum precedents," and, Judge Buchwald concluded, is a "designated public forum."
As such, the designated public forum is subject to the First Amendment requirement that any governmental restrictions must be "narrowly drawn to achieve a compelling state interest.”
Here, the individual plaintiffs were indisputably blocked as a result of viewpoint discrimination. The record establishes that “[s]hortly after the Individual Plaintiffs posted the tweets . . . in which they criticized the President or his policies, the President blocked each of the Individual Plaintiffs,” Stip. ¶ 53, and defendants do “not contest Plaintiffs’ allegation that the Individual Plaintiffs were blocked from the President’s Twitter account because the Individual Plaintiffs posted tweets that criticized the President or his policies.”
This viewpoint discrimination is impermissible, Judge Buchwald concluded, and not justified by any personal First Amendment right advanced by the President. Judge Buchwald distinguished "muting" and "blocking" on Twitter - - - which the President had argued were indistinguishable - - - and concluded:
The audience for a reply extends more broadly than the sender of the tweet being replied to, and blocking restricts the ability of a blocked user to speak to that audience. While the right to speak and the right to be heard may be functionally identical if the speech is directed at only one listener, they are not when there is more than one.
Finally, Judge Buchwald rejected the argument that the court categorically lacked authority to enjoin the President: "No government official, after all, possesses the discretion to act unconstitutionally." Nevertheless, she decided that a declaratory judgment should suffice: "we must assume that the President and Scavino will remedy the blocking we have held to be unconstitutional."
Monday, May 14, 2018
The Supreme Court ruled today that federal law prohibiting states from authorizing sports gambling violates the anticommandeering principle. The ruling in Murphy v. NCAA strikes the prohibition the federal Professional and Amateur Sports Protection Act (PASPA) and opens the door to state-authorized sports gambling across the country.
While the ruling is potentially quite significant with regard to sports gambling, it does not restrict Congress from regulating or prohibiting sports gambling directly. Congress could enact a new law doing just that.
As to the constitutional law: The ruling says that the anticommandeering principle applies both when Congress requires states to act (which we already knew), and when Congress prohibits states from acting (which we didn't yet know, at least not for sure). That could have implications in the sanctuary cities litigation, which involves, among other things, the federal prohibition against state and local governments from restricting their officers in cooperating with federal immigration agents.
The case arose when New Jersey challenged the prohibition on state-authorized sports gambling in the PASPA under the anticommandeering principle. New Jersey sought to revoke its law prohibiting sports gambling, but the NCAA sued, arguing that New Jersey's proposed revocation violated the PASPA's provision that forbids a state "to sponsor, operate, advertise, promote, license, or authorize by law or compact . . . a lottery, sweepstakes, or other betting, gambling, or wagering scheme" based on a competitive sporting events and forbids "a person to sponsor, operate, advertise, or promote" those gaming schemes if done "pursuant to the law or compact of a governmental entity." (New Jersey did this once before, but was stopped in the lower courts. The Supreme Court denied cert. in that earlier challenge.) (Importantly, PASPA does not make sports betting a federal crime. Instead, it authorizes the Attorney General and professional and amateur sports organizations to sue to halt violations.) New Jersey countered that PASPA violated the anticommandeering principle insofar as it prohibited the state from repealing its ban on sports betting. The lower courts ruled against the state, but the Supreme Court reversed. Justice Alito wrote for the Court.
The Court first held that New Jersey's repeal fell within PASPA's ban on "authorizing" sports betting: "When a State completely or partially repeals old laws banning sports gambling, it 'authorize[s]' that activity."
The Court then ruled that PASPA's prohibition violated the anticommandeering principle. The Court said that it didn't make a difference whether Congress directed a state to act, or prohibited a state from acting; either way, "state legislatures are put under the direct control of Congress."
The PASPA provision at issue here--prohibiting state authorization of sports gambling--violates the anticommandeering rule. That provision unequivocally dictates what a state legislature may and may not do. And this is true under either our interpretation or that advocated by the respondents and the United States. In either event, state legislatures are put under the direct control of Congress. It is as if federal officers were installed in state legislative chambers and were armed with the authority to stop legislators from voting on any offending proposals. A more direct affront to state sovereignty is not easy to imagine.
It was a matter of happenstance that the laws challenged in New York and Printz commanded "affirmative" action as opposed to imposing a prohibition. The basic principle--that Congress cannot issue direct orders to state legislatures--applies in either event.
The Court said that PASPA's prohibition on state "licensing" of sports betting similarly violates the anticommandeering principle.
Finally, the Court said that PASPA's prohibition on states from "operat[ing]," "sponsor[ing]," or "promot[ing]" sports gambling schemes, its provisions that prohibit a private actor from "sponsor[ing], operat[ing], advertis[ing], or promot[ing]" sports gambling schemes "pursuant to" state law, and its provisions prohibiting the "advertis[ing]" of sports gambling all cannot be severed and therefore go down, as well.
Justice Thomas concurred in full, but wrote separately "to express [his] growing discomfort with . . . modern severability precedents." In particular, Justice Thomas argued that the Court's severability "precedents appear to be in tension with traditional limits on judicial authority."
Justice Breyer concurred, except to the severability holding on the provision regulating private actors.
Justice Ginsburg, joined by Justice Sotomayor and in part by Justice Breyer, dissented. Justice Ginsburg argued that (assuming arguendo that the state-authorization provision amounted to commandeering) the Court improperly failed to sever the prohibition on state and private-party operations, because they can stand alone.
Monday, May 7, 2018
The Seventh Circuit ruled today that a retailer was not likely to succeed on its First Amendment challenge to Indianapolis's adult-store zoning regulations.
The case, HH-Indianapolis v. Indianapolis, arose when the plaintiff sought to open a retail establishment called "Hustler Hollywood" in Indianapolis. The corporation sought advice from city officials in order to avoid the "adult" designation under the city's changing zoning rules, and, in reliance on that advice, entered into a ten-year lease at a particular location. But when the corporation applied for a structural permit to remodel the property, the city determined that the retailer was either an adult bookstore or an adult service establishment--either way, not permitted in the zone where it was located (but permitted in other areas of the city, including a zone right across the street). The corporation declined to challenge the designation through the state courts and instead brought a First Amendment challenge in federal court.
The Seventh Circuit ruled that it was unlikely to succeed (and thus denied its motion for a preliminary injunction). The court said that the case fell squarely within the Supreme Court's "erogenous zoning" line: "There is simply 'no First Amendment objection' when the City exercises its zoning power to reduce the secondary effects of adult businesses, and HH has alternative avenues of communication."
The court said that the plaintiff's claim really amounted to a challenge to its designation as an "adult" retailer, and under state law belonged in state court.