Friday, October 14, 2016
In its opinion in National Institute of Family and Life Advocates v. Harris, the Ninth Circuit rejected a First Amendment challenge to the California Reproductive Freedom, Accountability, Comprehensive Care, and Transparency Act, the FACT Act. The FACT Act mandates that licensed pregnancy-related clinics, including crisis pregnancy centers that specifically discourage abortion and employ "deceptive advertising and counseling practices" related to the availability of abortion, disseminate a notice stating the availability of publicly-funded family-planning services that include contraception and abortion. Additionally, the FACT Act requires unlicensed clinics provide notice that they are not licensed.
Recall that mandatory disclosures by pregnancy crisis centers has previously been considered in Circuit opinions. In The Evergreen Association, Inc. d/b/a Expectant Mother Care Pregnancy Centers v. City of New York, a divided panel of the Second Circuit in 2014 ruled that only one of the three major provisions of NYC's Local Law 17 seeking to mandate disclosures by pregnancy crisis centers was constitutional. The en banc Fourth Circuit has also rules: First, in Greater Baltimore Center for Pregnancy Concerns, Incorporated v. Mayor and City Council of Baltimore, it reversed the granting of a preliminary injunction finding fault with the application of the summary judgment standard by the district judge, and second in Centro Tepeyac v. Montgomery County, affirmed a finding that one of the mandated disclosures was constitutional and the other was not.
The Ninth Circuit opinion, authored by Judge Dorothy W. Nelson, rejected the argument that the mandated notice of other services available for pregnancy to be afforded by licensed facilities (the "Licensed Notice") should be subject to strict scrutiny because "all" content-based regulations should be subject to strict scrutiny, notwithstanding the United States Supreme Court's decision in Reed v. Town of Gilbert (2015). Judge Nelson's opinion noted that abortion regulation and the practice of medicine have been subject to "reasonable regulation" even when speech is involved. Instead, the Ninth Circuit unanimous panel took as precedent its ruling in Pickup v. Brown regarding prohibition of sexual conversion therapy and the concept of "professional speech":
We now turn to the correct level of scrutiny to apply to the Licensed Notice and conclude that under our precedent in Pickup, intermediate scrutiny applies. Licensed Clinics are not engaging in a public dialogue when treating their clients, and they are not “constitutionally equivalent to soapbox orators and pamphleteers.” Pickup. Thus, it would be inappropriate to apply strict scrutiny. And, unlike in Pickup, the Licensed Notice does not regulate therapy, treatment, medication, or any other type of conduct. Instead, the Licensed Notice regulates the clinics’ speech in the context of medical treatment, counseling, or advertising.
Because the speech here falls at the midpoint of the Pickup continuum, it is not afforded the “greatest” First Amendment protection, nor the least. It follows, therefore, that speech in the middle of the Pickup continuum should be subject to intermediate scrutiny.
In applying intermediate scrutiny, Judge Nelson found that
California has a substantial interest in the health of its citizens, including ensuring that its citizens have access to and adequate information about constitutionally-protected medical services like abortion. The California Legislature determined that a substantial number of California citizens may not be aware of, or have access to, medical services relevant to pregnancy. * * * *
We conclude that the Licensed Notice is narrowly drawn to achieve California’s substantial interests. The Notice informs the reader only of the existence of publicly-funded family-planning services. It does not contain any more speech than necessary, nor does it encourage, suggest, or imply that women should use those state-funded services. The Licensed Notice is closely drawn to achieve California’s interests in safeguarding public health and fully informing Californians of the existence of publicly-funded medical services. And given that many of the choices facing pregnant women are time-sensitive, such as a woman’s right to have an abortion before viability, we find convincing the AG’s argument that because the Licensed Notice is disseminated directly to patients whenever they enter a clinic, it is an effective means of informing women about publicly-funded pregnancy services.
Additionally, the panel found that the Unlicensed Notice - - - the mandated disclosure that a facility is not licensed - - - survives every level of scrutiny, even strict scrutiny.
The Ninth Circuit panel opinion acknowledged that it was in agreement with the Second and Fourth Circuits on the Unlicensed Notice provision, but that the Second and Fourth Circuits had applied a higher level of scrutiny to similar mandated disclosures and found that they were not constitutional.
There is thus an arguable split amongst the circuits on the subject of mandated disclosures by so-called pregnancy crisis centers, with the Ninth Circuit's conceptualization of "professional speech" again ripe for a certiorari petition to the United States Supreme Court.
Tuesday, October 11, 2016
In a sweeping endorsement of the unitary executive theory, the D.C. Circuit ruled today in PHH Corp. v. CFPB that the Consumer Financial Protection Bureau is unconstitutional. But at the same time, the court limited the remedy to reading out the "for-cause" termination provision for the director and turning the Bureau into an ordinary executive agency.
The ruling allows the Bureau to continue to operate, but, unless the ruling is stayed pending the inevitable appeal, removes the for-cause protection enjoyed by the director. Because that for-cause protection is what makes the CFPB "independent," the ruling turns the Bureau into a regular executive agency, with a single head that enjoys no heightened protection from removal.
In an opinion by Judge Kavanaugh, the court ruled that the single head of the Bureau, terminable only for cause, put the Bureau outside the reach of the President, in violation of Article II. The court said that this feature of the Bureau--single head, terminable only for cause--meant that there was no political accountability for the Bureau, and no check on the director's actions. (The court contrasted this single-head structure with a board structure in an independent agency, where, according to the court, the members could check each other.) The court also said that the single-head structure cuts against the historical grain--that we've never done it that way. Here's a summary:
The CFPB's concentration of enormous executive power in a single, unaccountable, unchecked Director not only departs from settled historical practice, but also poses a far greater risk of arbitrary decisionmaking and abuse of power, and a far greater threat to individual liberty, than does a multi-member independent agency. The overarching constitutional concern with independent agencies is that the agencies are unchecked by the President, the official who is accountable to the people and who is responsible under Article II for the exercise of executive power. Recognizing the broad and unaccountable power wielded by independent agencies, Congress and Presidents of both political parties have therefore long endeavored to keep independent agencies in check through other statutory means. In particular, to check independent agencies, Congress has traditionally required multi-member bodies at the helm of every independent agency. In lieu of Presidential control, the multi-member structure of independent agencies acts as a critical substitute check on the excesses of any individual independent agency head--a check that helps to prevent arbitrary decisionmaking and thereby to protect individual liberty.
Emphasizing a unitary executive, the court wrote at length, and disapprovingly, about how the director is entirely unaccountable. But this ignores the fact that the for-cause termination provision does not mean "never able to fire." It also ignores other ways that a President can influence the Bureau, outside of just firing the director at will. And it also ignores other checks on the office, like statutory authorities and restrictions, congressional oversight, and (ironically) judicial review of CFPB actions (although these are obviously not presidential checks on the Bureau).
After ruling the CFPB unconstitutional--but saving it by striking only the for-cause termination provision for the director--the court went on to hold that the CFPB misapplied the Real Estate Settlement Procedures Act.
Judge Randolph joined the majority opinion and added that the ALJ who presided over the hearing (after the CFPB filed its charges) was appointed in violation of the Appointments Clause.
Judge Lecraft Henderson concurred in the court's statutory ruling, but argued that the court did not need to touch the constitutional question (because it could grant PHH relief under the statute alone).
This ruling is hardly the end of this case: it'll undoubtedly go to the Supreme Court.
Monday, October 10, 2016
In an Order in Florida Democratic Party v. Scott, United States District Judge Mark Walker extended the voter registration until Wednesday, October 12, at 5:00pm and also scheduled a hearing for that afternoon for further determinations.
As Judge Walker explained the facts:
Florida’s voter registration deadline for the 2016 election cycle is currently set for Tuesday, October 11, 2016. For aspiring eligible voters, failing to register by that date effectively forecloses the right to vote in the 2016 election. Just five days before that deadline, however, Hurricane Matthew bore down and unleashed its wrath on the State of Florida. Life-threatening winds and rain forced many Floridians to evacuate or, at a minimum, hunker down in shelters or their homes. Like Hurricane Matthew, the voter registration deadline also approached and bore down on the State of Florida. Citing the impending Hurricane, many urged the Governor of Florida, Defendant Rick Scott, to extend the deadline. But Defendant Scott demurred, asserting instead that Floridian’s had other avenues to ensure that their right to vote was protected.
Even assuming that Florida’s statutory framework was subject to a more flexible Anderson–Burdick test, it still would be unconstitutional. In no way could Defendants argue that there is some sort of limitation that requires them to burden the constitutional rights of aspiring eligible voters. Many other states, for example, either extended their voting registration deadlines in the wake of Hurricane Matthew or already allow voter registration on Election Day. There is no reason Florida could not do the same. In so ruling, this Court is not suggesting that Florida has to allow voter registration up to Election Day. Rather, it simply holds that the burden on the State of Florida in extending voter registration is, at best de minimis. . . .
Finally, Florida’s statutory framework is unconstitutional even if rational basis review applied (which it does not). Quite simply, it is wholly irrational in this instance for Florida to refuse to extend the voter registration deadline when the state already allows the Governor to suspend or move the election date due to an unforeseen emergency.
After finding that the TRO criteria supported the restraining order, Judge Walker added that the order was necessary state-wide because "Hurricane Matthew’s effects are not circumscribed to one region of the state." He reasoned that it "would be grossly inappropriate, for ex- ample, to hold that aspiring eligible voters in Jacksonville could register later than those in Pensacola."
Therefore, this Order holds that Florida’s current statutory framework is unconstitutional. That unconstitutionality is not limited to those in the areas most affected by Hurricane Matthew. It extends to the entire State of Florida.
Thus, Floridians have at least one additional day to register to vote for the November 9 election.
In a brief Order after the hearing on October 12, Judge Walker granted the preliminary injunction "for the same reasons" articulated in the TRO order and extended the deadline to Tuesday, October 18, 2016.
Tuesday, October 4, 2016
In the continuing - - - yet seemingly concluding - - - saga of challenges to the constitutionality of California's SB 1172, prohibiting licensed therapists from performing what is known variously as sexual conversion therapy, reparative therapy, or sexual orientation change efforts (SOCE) on minors under the age of 18, the Ninth Circuit's opinion today in Welsh v. Brown revisited its August opinion upholding the law. Today's opinion announces that the Ninth Circuit will not rehear the case en banc - - - "no judge of the court" having requested a vote on the petition for rehearing en banc - - - and issues an amended opinion.
The change from the August opinion is slight, adding an example in the opinion's description of the challengers' argument in one paragraph:
Plaintiffs first argue that, under the Establishment Clause, SB 1172 excessively entangles the State with religion. Their argument rests on a misconception of the scope of SB 1172. For example, Plaintiffs assert that Dr. Welch may not “offer certain prayers or quote certain Scriptures to young people” even “while working as a minister for Skyline Church” within “the four walls of the church . . ., while engaging in those religious activities.” The premise of this Establishment Clause argument is mistaken, and the argument fails, because SB 1172 regulates conduct only within the confines of the counselor-client relationship.
[Added language underlined; italics in both opinions].
With such a small revision, it would seem there was little contention about the case. Recall that Welsh itself is a sequel to Pickup v. Brown, in which the Ninth Circuit declined en banc review (albeit more divisively), to other First Amendment challenges to the California statute. Meanwhile, the Third Circuit in King v. Christie rejected a challenge to New Jersey's similar SOCE-ban statute. The United States Supreme Court has denied certiorari in both Pickup and King, making prospects for a grant of certiorari in Welch v. Brown rather slim, especially for an eight Justice Court.
October 4, 2016 in Family, First Amendment, Fourteenth Amendment, Free Exercise Clause, Fundamental Rights, Gender, Opinion Analysis, Religion, Sexual Orientation, Sexuality, Supreme Court (US) | Permalink | Comments (0)
The Seventh Circuit upheld a preliminary injunction against Indiana Governor Mike Pence's program to halt federal resettlement funds to a private organization that resettles Syrian immigrants. The smack-down ruling was hardly a surprise after the brutal oral arguments, just last month.
The ruling means that Indiana cannot stop payment of federal funds for Syrian resettlement, at least for now. But if the courts' actions so far are any indication, this preliminary injunction will quickly turn to a permanent one.
The case arose when Governor Pence announced that he would stop payment under the federal Refugee Act for resettlement of Syrians, and Syrians alone. But there was a problem: The Refugee Act bans discrimination by nationality, among other characteristics. And that's exactly what Pence did in denying payment for Syrian resettlement.
The Seventh Circuit rejected Pence's argument that he wasn't really discriminating by nationality:
But that's the equivalent of his saying (not that he does say) that he wants to forbid black people to settle in Indiana not because they're black but because he's afraid of them, and since race is therefore not his motive he isn't discriminating. But that of course would be racial discrimination, just as his targeting Syrian refugees is discrimination on the basis of nationality.
The court also schooled Pence on some basics of refugee screening (it's thorough, and the federal government does it, without the second-guessing of the likes of Pence), and called him on his empty claims and baseless fears:
The governor of Indiana believes, though without evidence, that some of these persons were sent to Syria by ISIS to engage in terrorism and now wish to infiltrate the United States in order to commit terrorist acts here. No evidence of this believe has been presented, however; it is nightmare speculation.
The ruling only affirms the lower court's grant of a preliminary injunction, so theoretically doesn't end the case. But the handwriting is on the wall: This program violates the terms of the federal Refugee Act.
Friday, September 30, 2016
Judge Rudolph Contreras (D.D.C.) ruled in Byers v. United States Tax Court that the Tax Court is a "court," not an "agency," under FOIA. The ruling means that the Tax Court isn't subject to the plaintiff's FOIA request.
The case arose when Ronald Byers filed a FOIA request against the Tax Court. Byers argued that the Tax Court should be exempt from FOIA (as Article III courts are), because it's located in the Executive Branch.
Judge Contreras disagreed. He wrote that the touchstone for FOIA coverage of the Tax Court isn't where the Tax Court is located, but rather its nature. "[A] number of factors, including congressional intent, Supreme Court interpretation, and the function of the Tax Court, all suggest that the Tax Court is best understood as a court, not an agency, for the purposes of FOIA." And because FOIA exempts "courts of the United States," the Tax Court is exempt.
The Eleventh Circuit this week rejected a First Amendment challenge to Alabama's ban on PAC-to-PAC political contributions. The ruling upholds Alabama's ban and deepens a split in the circuits.
The Alabama Democratic Conference, an Alabama PAC perhaps best known for its yellow sample ballot that it distributes to voters, brought the case, arguing that Alabama's law that bans political contributions between PACs violates free speech. The ADC gets money from individual contributors, other PACs, and even candidates; it spends money in support of particular candidates and independent advocacy. The ADC uses separate bank accounts for candidate contributions and its own independent expenditures. Still, the state's PAC-to-PAC transfer ban prohibited the ADC from receiving money from other PACs. So it sued.
The Eleventh Circuit upheld the state's transfer ban. The court ruled that the state enacted the ban in response to a concern by state voters that PAC-to-PAC transfers were being used to conceal the true identity of political contributors--and raised the appearance of quid pro quo corruption. Moreover, the court said that the ADC didn't do enough to segregate its two accounts to reduce the appearance that it might use other PACs' contributions for candidate contributions. Because the ban was closely drawn to address the appearance of corruption, the Eleventh Circuit upheld it.
The ruling aligns with the Second and Fifth Circuits, but against the Tenth, on the question whether a PAC-to-PAC transfer ban violates free speech, when a PAC has two separate accounts, one for candidate contributions and the other for independent expenditures.
Thursday, September 29, 2016
In its opinion in Rideout v. Gardner, the First Circuit, affirming the district judge, held that New Hampshire's prohibition of "ballot selfies" violates the First Amendment.
New Hamp. Rev. Statute §659.35, I, was amended in 2014 to provide:
No voter shall allow his or her ballot to be seen by any person with the intention of letting it be known how he or she is about to vote or how he or she has voted except as provided in RSA 659:20. This prohibition shall include taking a digital image or photograph of his or her marked ballot and distributing or sharing the image via social media or by any other means.
(amended language underlined). The rationale for the statute was to prevent situations in which voters could be coerced into providing proof that they voted in a particular way, and thus as a means to prevent vote-coercion or vote-buying.
Judge Sandra Lynch's succinct opinion for the First Circuit panel includes a discussion of the nineteenth century practice in which political parties and other organizations had the power to print their own ballots, which they printed in a manner as to make the ballots easily identifiable by size and color. "This practice allowed the ballot-printing organizations to observe how individuals voted at the polls, which in turn created an obviously coercive environment. " Thus, "New Hampshire undertook a series of reforms to combat widespread vote buying and voter intimidation" and in 1891 passed legislation requiring the Secretary of State to prepare ballots for state and federal elections, and in 1911 passed the precursor statute forbidding any voter from allowing the "ballot to be seen by any person, with the intention of letting it be known how he is about to vote."
New Hampshire's problem in defending the constitutionality of the 2014 statute is that the problem of vote-buying and coercion has been solved. As Judge Lynch stated, New Hampshire could not point to any such incidents since the nineteenth century (with the last complaint, seemingly unsubstantiated, being in 1976). While the state's interests might be compelling in the abstract, they need to be real. A broad prophylactic prohibition is unwarranted, despite worries about new technologies and media. Indeed, Judge Lynch wrote:
Digital photography, the internet, and social media are not unknown quantities -- they have been ubiquitous for several election cycles, without being shown to have the effect of furthering vote buying or voter intimidation. As the plaintiffs note, "small cameras" and digital photography "have been in use for at least 15 years," and New Hampshire cannot identify a single complaint of vote buying or intimidation related to a voter's publishing a photograph of a marked ballot during that period.
And even if there were a present problem that needed solving, "the statute still fails for lack of narrow tailoring." Judge Lynch's opinion for the panel stated that the statute infringed on the rights of all voters and not the smaller (or even nonexistence) pool of those motivated to cast a vote for illegal reasons. Additionally, there exist other state and federal laws prohibiting vote corruption which are adequate to address the problem, should it arise. In an interesting footnote, the court lists statutes from other states allowing ballot selfies and notes that these states have not reported "an uptick" in vote buying or voter intimidation.
The First Circuit opinion applied intermediate scrutiny under the First Amendment. The district judge had concluded the New Hampshire statute was a content-based regulation and applied strict scrutiny. However, relying on McCutcheon v. FEC (2014), the First Circuit reasoned that given that the statute fails the lower intermediate standard, the court need not "parse the differences" between the two standards in this case. Nevertheless, the First Circuit did note that the New Hampshire statute affects voters who are engaged in "core political speech," and in a footnote quoted from the amicus brief for Snapchat that "younger voters" especially use ballot selfies as political expression.
Governments contemplating prohibiting "ballot selfies" would be wise to reconsider after a read of Rideout v. Gardner.
Sunday, September 25, 2016
Ninth Circuit: Green Party's First Amendment Challenge to Arizona's 180-day Party Recognition Deadline
In its opinion in Arizona Green Party v. Reagan, the Ninth Circuit affirmed the district judge's grant of summary judgment in favor of Arizona's Secretary of State, Michele Reagan, in a challenge to Arizona Revised Statute §16-803(A). The statute requires a petition for recognition of a "new" - - - or actually a minor - - - party to be filed "not less than one hundred eighty days before the primary election for which the party seeks recognition. The challenge involved the 2014 election; the Green Party had lost its official status the prior year because it failed to garner 5% of the vote and was thus treated as a "new" party under the statute. The Ninth Circuit first held that there was not an issue of mootness because the deadline issue was likely to "surface again," fitting into the exception for mootness of claims that are “capable of repetition, yet evading review.”
The Ninth Circuit considered the merits of the challenge as one of ballot access and articulated the balancing tests of Anderson v. Celebrezze, 460 U.S. 780 (1983) and Burdick v. Takushi, 504 U.S. 428 (1992). But the Ninth Circuit essentially found any required balancing was impossible because of the Arizona Green Party's stance that the "deadline was unconstitutional as a matter of law" and submitted no evidence to support its claim that the 180-day deadline burdened its constitutional rights.
Analogy and rhetoric are no substitute for evidence, particularly where there are significant differences between the cases the Green Party relies on and the Arizona election system it challenges. The Supreme Court and our sister circuits have emphasized the need for context-specific analysis in ballot access cases. . . .
That filing deadlines of similar lengths may prove unconstitutionally burdensome in the context of some election schemes does not eliminate the need for evidence that a severe burden was imposed by the filing deadline in this case.
Thus, "absent evidence of the particular burdens imposed in this case," the panel concluded that "at best, the 180-day petition- filing deadline imposes a de minimis burden on constitutional rights." And given the de minimus burden, Arizona faced a very low hurdle: that the filing deadline served "important regulatory interests."
It does seem as if the Green Party of Arizona might have a successful challenge if it could marshal its evidence of the burden it faces under the 180-day deadline.
Unlike the Green Party, the Secretary [of State of Arizona] presented substantial evidence that details the processes for ballot access and the rationale behind each step in the timeline at each stage of the election process. The nested deadlines leading up to the Arizona primary, as well as the tasks that must be accomplished between the primary and general election, reflect an effort by the state to achieve the important goal of orderly elections. For example, the number of required signatures for independent candidate petitions depends on the number of registered voters who are not affiliated with a recognized party. For this reason, the state must know how many recognized parties will appear on the ballot before setting the candidate signature requirements, at which point candidates have two months to collect signatures. As Arizona’s Assistant State Election Director explained, “[i]f the petition deadline to obtain recognized party status were moved to a later date, new party candidates would have little or no meaningful opportunity to obtain the requisite number of signatures to qualify for the party’s primary ballot.” She also noted that in late May, Arizona counties mail a list of recognized political parties holding primaries in a particular election to the more than 1.9 million early registered voters, and that adding additional parties after the mailing deadline could therefore impose considerable burdens on the counties and lead to voter confusion. Also, in preparation for the primary, ballots must be translated into Spanish and several Native American languages, a process that takes time.
Thursday, September 22, 2016
Judge Christopher R. Cooper (D.D.C.) ruled earlier this week that the controlling members of the FEC applied the wrong legal analysis in concluding that two groups were not "political committees" under federal campaign finance law. The ruling reverses and remands to the FEC for reconsideration.
The case matters because designation as a "political committee" triggers more stringent reporting requirements under campaign finance law. Judge Cooper's ruling makes it more likely that a group would be considered a "political committee," and thus marks a victory for campaign disclosure advocates.
The case arose when CREW lodged a complaint with the FEC that two groups, American Action Network and Americans for Job Security, were unregistered "political committees." Those groups spent money on TV ads and other electioneering communication in three congressional districts in the 2010 elections. In response to CREW's complaint, three FEC commissioners determined that the groups' "major purpose" wasn't "the nomination or election of a candidate," and therefore that they were not "political committees" under campaign finance law. The commissioners reasoned that the groups' electioneering communications--ads that mentioned a candidate, but that did not advocate for or against a candidate's election--shouldn't be considered in determining the "major purpose," and that groups' purposes over their entire history should be considered in determining their "major purpose."
Judge Cooper disagreed. He ruled first that under Buckley and its progeny, the commissioners should have considered the groups' electioneering communications in determining their "major purpose":
CREW's citations to legislative history, past FEC precedent, and court precedent certainly support the conclusion that many or even most electioneering communications indicate a campaign-related purpose. Indeed, it blinks reality to conclude that many of the ads considered by the Commissioners in this case were not designed to influence the election or defeat of a particular candidate in an ongoing race. . . . Instead, the Court will limit itself to identifying the legal error in the Commissioners' statements--that is, the erroneous understanding that the First Amendment effectively required the agency to exclude from its consideration all non-express advocacy in the context of disclosure.
Judge Cooper ruled next that the commissioners wrongly considered the groups' spending over their entire existence, instead of confining their analysis to spending within the most recent calendar year, in determining the "major purpose." He explained that a group's purpose can change over time:
The Commissioners' refusal to give any weight whatsoever to an organizations' relative spending in the most recent calendar year--particularly in the case of a fifteen-year-old organization like AJS--indicates an arbitrary "fail[ure] to consider an important aspect of the [relevant] problem."
Judge Cooper sent the case back to the FEC and ordered it "to conform with [this] declaration within 30 days." The FEC can, of course, appeal.
Wednesday, September 21, 2016
Twenty-one states, led by Texas, sued the federal government this week over the Labor Department's new overtime rule. The complaint, which argues that the rule violates the Tenth Amendment and principles of state sovereignty, puts Garcia, long a thorn in the side of states'-righters, on the chopping block.
The suit challenges DOL regulations under the Fair Labor Standards Act that raise the threshold exemption for overtime pay. This means that employers now have to pay overtime to employees who earn up to $47,476, up from $23,660. (The FLSA only exempts "managerial" positions from the overtime requirement. DOL has long used a salary test as a proxy for "managerial" in its regulations, however.) The rule applies to both private-sector employers and states.
The states argue that the new rule will cost them money and require them to reshuffle spending priorities, interfering with their state sovereignty and violating the Tenth Amendment.
The Supreme Court at one time would have agreed. The Court ruled in National League of Cities v. Usery in 1976 that the FLSA minimum-wage requirement violated the Tenth Amendment for exactly these reasons. But less than a decade later, when it became clear that this approach couldn't work across the myriad federal regulations that applied to states in their non-sovereign capacity, the Court walked back. It ruled in Garcia v. San Antonio Metropolitan Transit Authority (1985) that the FLSA did not violate the Tenth Amendment, and that states had plenty of protection against federal overreach through the ordinary political process.
Now the plaintiffs in this latest lawsuit explicitly argue that Garcia should be overruled. They say that subsequent developments in the law have undermined the case, and that it's time to go back to National League of Cities.
The complaint speaks in terms of the additional burden to the states of the new DOL regulation, but its logic extends to any federal standard (like minimum wage, maximum hours, worker safety, etc.) imposed on the states. As a result, the case, if ultimately successful, would work a sea change in federal-state relations as they've existed since 1985, potentially across policy areas. That seems unlikely given the current composition of the Court. But who knows what might happen after the election.
The states also argue that the new regulation exceeds DOL authority under the FLSA, because the FLSA sets the overtime requirement based on job type ("managerial"), but the DOL regs set the requirement based on salary. This claim may have more traction (in the Fifth Circuit, at least, and possibly before the Supreme Court). It's similar to the core claim in the last state effort, also led by Texas, to challenge administrative action as a violation of the Constitution and the Administrative Procedures Act--in that case, the DAPA program. An evenly divided Supreme Court left in place the Fifth Circuit's ruling that DAPA violated the APA.
The Ninth Circuit ruled yesterday that a federal district court lacked jurisdiction to hear a class-action claim by immigrant children that they have a right to counsel in deportation proceedings.
While the judges on the panel wrote separately to acknowledge the challenging barriers for unrepresented child-immigrants in the deportation process, the upshot of the ruling is that immigrant children remain between a rock and a hard place in lodging a right-to-counsel claim, and, thus, in the deportation process itself.
The case arose when immigrant children aged 3 to 17 filed suit in federal district court arguing that they had a constitutional and statutory right to counsel in deportation proceedings. The problem was that the Immigration and Naturalization Act provides for an appeal process in administrative deportation proceedings that permits an immigrant to appeal to a federal circuit court and consolidates "all questions of law and fact . . . arising from any action taken or proceeding brought to remove an alien . . only in judicial review of a final order . . . ." This means that an immigrant can raise deportation-related claims only in his or her direct appeal of an administrative deportation order, and not in a collateral process (like a separate case in district court).
The children argued that the INA's jurisdictional provision means that, as a practical matter, they could never raise a right-to-counsel claim on direct appeal of a deportation order. That's because one of two things could happen in deportation proceedings. First, an immigrant could have an attorney, in which case they wouldn't have standing to raise a right-to-counsel claim on direct appeal. Alternatively, an immigrant could not have an attorney. But in that case, given the complexities of the immigration process, a child couldn't adequately develop a record to successfully appeal (if they could even figure out how to appeal). (Immigration judges won't deal with the issue, so the children really would have to raise it on appeal to the federal circuit court.) So, they argued, they should be able to file a collateral class action in federal district court on the right-to-counsel claims.
The Ninth Circuit disagreed. The court ruled that the INA's jurisdictional provision directly answered the question: the children could only raise their right-to-counsel claims through the administrative deportation process and on direct appeal to the federal circuit court.
The panel judges wrote separately to acknowledge the unique challenges that immigrant children face in this labyrinthine process, and the practical difficulties in raising a right-to-counsel claim. They also wrote that there's wide agreement that children need an attorney in deportation proceedings. But in the end, according to the court, right to counsel is an issue to raise only on direct appeal.
Or: Congress could simply fix it by providing a statutory right to counsel for children in deportation proceedings.
Tuesday, September 20, 2016
A divided en banc Sixth Circuit last week reversed a district court's order dismissing an as-applied Second Amendment challenge to the federal ban on gun possession by anyone "who has been adjudicated as a mental defective or who has been committed to a mental institution."
The ruling sends the case back to the district court to give the government a second chance to show that the federal ban meets intermediate scrutiny. The ruling doesn't end the case, and it doesn't say whether the ban violates the Second Amendment. It just sends the case back to give the government a second bite at the apple.
In short, the ruling says this: A person's long-ago involuntary commitment doesn't necessarily make them a danger today, and, without a safety valve for individuals who no longer pose a danger, the federal ban may sweep too broadly with respect to currently safe individuals.
The case arose when 74-year-old Clifford Tyler tried to buy a gun. Tyler was rejected by the county sheriff, because he had been involuntarily committed for less than 30 days in the 1980s. Still, despite not showing any evidence of mental illness in his latest check, in 2012, under federal law, 18 U.S.C. Sec. 922(g)(4), Tyler couldn't possession a firearm.
Moreover, federal law didn't allow any exception. It turns out that federal law used to permit an applicant, otherwise barred by Section 922, to apply to the Attorney General for an exception. But Congress de-funded that authority, and then transferred it to participating states. Tyler's state, Michigan, hadn't accepted it, so Tyler had no recourse.
The Sixth Circuit ruled that Tyler made out a case, at least sufficient to withstand a motion to dismiss. As an initial matter, the court held that Heller's list of "presumptively lawful regulatory measures" did not answer the questions. According to the court, that's because Section 922(g)(4) is a relatively new innovation, and doesn't have the kind of "historical pedigree" that would allow it to "give Heller conclusive effect." "In the absence of such evidence, it would be odd to rely solely on Heller to rubber stamp the legislature's power to permanently exclude individuals from a fundamental right based on a past involuntary commitment."
The court next turned to the two-part approach under circuit precedent and adopted in several other circuits. It ruled first that the ban "burdens conduct that falls within the scope of the Second Amendment, as historically understood." It particular, "historical evidence . . . does not directly support the proposition that persons who were once committed due to mental illness are forever ineligible to regain their Second Amendment rights." It ruled next that the ban failed intermediate scrutiny. It said that while the government had important enough interests (keeping guns out of the hands of risky people, protecting the community, and preventing suicide), the flat, lifetime ban was too broad. The court noted that some persons with a past commitment for a mental condition do not currently have a mental condition, and can safely possess a firearm. But without a procedure for an exception, the ban prohibits anyone with a past commitment from possessing a firearm.The ruling drew several separate opinions, both concurring and dissenting. As summed up by the principal opinion, "ten of us would reverse the district court; six of us would not. And at least twelve of us agree that intermediate scrutiny should be applied, if we employ a scrutiny-based analysis." Thus, the court remanded with specific instructions to allow the government to satisfy intermediate scrutiny by introducing additional evidence in support of the lifetime ban or additional evidence showing that the ban would be constitutional as to Tyler, because he would pose a risk to himself or others if he had a gun.
Monday, September 19, 2016
In its divided opinion in Lund v. Rowan County, North Carolina, the Fourth Circuit has held that the identity of the person leading a prayer opening the county Board of Commissioners meeting is irrelevant - - - even a prayer led by a Board member is within the ambit of Town of Greece v. Galloway (2014) and without a First Amendment Establishment Clause problem.
As the majority opinion, authored by Judge Steven Agee and joined by Judge Dennis Shedd, describes it:
At most Board meetings, the chairperson would call the meeting to order and invite the Board and audience to stand for the ceremonial opening. A designated commissioner would then deliver an invocation of his or her choosing followed by the pledge of allegiance. The content of each invocation was entirely in the discretion of the respective commissioner; the Board, as a Board, had no role in prayer selection or content. The overwhelming majority of the prayers offered by the commissioners invoked the Christian faith in some form. For example, prayers frequently included references to “Jesus,” “Christ,” and “Lord.” It was also typical for the invocation to begin with some variant of “let us pray” or “please pray with me.” Id. Although not required to do so, the audience largely joined the commissioners in standing and bowing their heads during the prayer and remained standing for the pledge of allegiance.
The litigation was begun before the United States Supreme Court issued its sharply divided opinion in Town of Greece v. Galloway upholding the practice of the town beginning its meetings with invited religious leaders providing prayers. The Court essentially extended Marsh v. Chambers (1983), regarding legislative prayer in the Nebraska legislature, to town meetings despite their quasi-legislative and quasi-adjudicative function. The Fourth Circuit extends Town of Greece to prayers by the elected officials (and arguably adjudicators) themselves: "the Supreme Court attached no significance to the speakers' identities in its analysis" of either Town of Greece or Marsh. Indeed, as the Fourth Circuit majority notes, Justice Kennedy writing for the plurality in Town of Greece averred that the "principal audience" for the prayers is not the public but "lawmakers themselves, who may find that a moment of prayer or quiet reflection sets the mind to a higher purpose and thereby eases the task of governing." The Fourth Circuit therefore found that the district judge's conclusion that legislative prayer led by a legislator violates the Establishment Clause.
Judge Agee's opinion for the Fourth Circuit majority then took up the question of whether "some other facet" of the Board of Commissioner's praying practice took it "outside the protective umbrella of legislative prayer." These four "guideposts" included the selection of the legislative prayer, the content of the prayer, selection of the prayer-giver, and the effect of the prayer "over time" as advancing a particular religion. Judge Agee's opinion rejected each of these concerns. First, the selection of the legislative prayer was not done by the "Board as a whole," but each of the five commissioners was in effect "a free agent." Second, the majority found the content not objectionable because it did not cross the line into proselytizing: "There is no prayer in the record asking those who may hear it to convert to the prayer-giver’s faith or belittling those who believe differently. And even if there were, it is the practice as a whole -- not a few isolated incidents -- which controls." Third, the selection of the prayer-givers was not problematic, even though it was limited to the five commissioners. The majority opinion here comes close to requiring a type of specific motive: "Absent proof the Board restricted the prayer opportunity among the commissioners as part of an effort to promote only Christianity, we must view its decision to rely on lawmaker-led prayer as constitutionally insignificant." Fourth and last, the majority found no problem based on its analogies to Town of Greece and Marsh, in which the prayers were overwhelmingly Christian.
For Judge J. Harvie Wilkinson III, dissenting, the prayer practices of the Rowan County Commissioners crossed the constitutional line into a violation of the Establishment Clause. Wilkinson, whose forthcoming book argues that the 1960s were damaging "to our need for the sustenance of faith," here concludes that Rowan County is not welcoming to various faiths. He does not argue that the commissioner as prayer-leader is determinative, but it is one of the factors that distinguishes the Rowan County practice from Town of Greece, that makes it "a conceptual world apart." For Wilkinson:
I have seen nothing like it. This combination of legislators as the sole prayer-givers, official invitation for audience participation, consistently sectarian prayers referencing but a single faith, and the intimacy of a local governmental setting exceeds even a broad reading of Town of Greece. That case in no way sought to dictate the outcome of every legislative prayer case.
Wilkinson's opinion provides several examples that the plaintiffs, all non-Christians, found "overtly sectarian," including:
Our Heavenly Father, we will never, ever forget that we are not alive unless your life is in us. We are the recipients of your immeasurable grace. We can’t be defeated, we can’t be destroyed, and we won’t be denied, because of our salvation through the Lord Jesus Christ. I ask you to be with us as we conduct the business of Rowan County this evening, and continue to bless everyone in this room, our families, our friends, and our homes. I ask all these things in the name of Jesus, Amen.”
Judge Wilkinson noted that the "closed universe" of prayer-givers - - - the five Commissioners - - - over a period of years had led to a constriction in the religious identities represented that could communicate a message of non-belonging to citizens coming before the Board. But Wilkinson's concern also extended into a concern about representative secular democracy itself:
Entrenching this single faith reality takes us one step closer to a de facto religious litmus test for public office. When delivering the same sectarian prayers becomes embedded legislative custom, voters may wonder what kind of prayer a candidate of a minority religious persuasion would select if elected. Failure to pray in the name of the prevailing faith risks becoming a campaign issue or a tacit political debit, which in turn deters those of minority faiths from seeking office. It should not be so.
The United States Supreme Court's now-eight Justices may not be eager to welcome another government prayer case into the docket so soon after the 5-4 decision Town of Greece, especially one that might result in a 4-4 split, affirming the Fourth Circuit's opinion. And yet? Perhaps the Rowan County Board of Commissioners prayer practices might be a step too far for one of the Justices who joined the Court's majority in Town of Greece? Or perhaps for the Fourth Circuit en banc?
Friday, September 16, 2016
The Seventh Circuit ruled today that a service-dog owner can't challenge a state judge's order banning the dog from the courtroom in federal district court. The ruling leaves the owner with state-court remedies, but no remedy in federal district court, for this violation of the Americans with Disabilities Act.
The case arose when a state court probate judge ordered Gloria Jean Sykes to stop bringing her service dog, Shaggy, to probate proceedings. Sykes uses Shaggy for assistance with her post-traumatic stress disorder, but the judge nevertheless ordered Shaggy out.
Sykes sued in federal district court, arguing that the judge's behavior toward her (critically questioning her need for Shaggy) and the order violated the ADA. The district court dismissed the case, and Sykes appealed.
The Seventh Circuit ruled that the Rooker-Feldman doctrine barred the suit. The Rooker-Feldman doctrine says that a lower federal court cannot exercise jurisdiction over cases brought by state court losers challenging state court judgments rendered before the district court proceedings commenced. "Claims that directly seek to set aside a state court judgment are de facto appeals which trigger the doctrine. But even federal claims which were not raised in state court, or that do not on their face require review of a state court's decision, may still be subject to Rooker-Feldman if those claims are inextricably intertwined with a state court judgment."
The court rejected Sykes's arguments that her ADA claim wasn't intertwined with the state court judgment (the Shaggy ban). In particular, the court rejected her argument that the judge's conduct, not just the order, violated the ADA, and that the practices in the courthouse violated the ADA (in the spirit of Tennesse v. Lane). The court said that the claim and the judgment were still intertwined: "[T]o provide any relief in response to the harm stemming from [the judge's] acts, her court order banning Shaggy would need to be set aside."
The court noted that Rooker-Feldman would permit the suit, for example, if the courthouse "had a policy of banning service animals." The court also noted that Sykes could have sought mandamus in the state courts, pursued an interlocutory appeal in the state courts, or filed a motion for a supervisory order under state court rules.
Thursday, September 15, 2016
Judge Ketanji Brown Jackson (D.D.C.) ruled in New England Anti-Vivisection Society v. U.S. Fish and Wildlife Service that the plaintiff organization lacked standing to challenge an export permit issued by the FWS for certain chimpanzees. The ruling means that this case ends (except NEAVS's FOIA claim), unless and until NEAVS successfully appeals.
The case arose when the FWS issued an export permit under the Endangered Species Act that allowed Yerkes National Primate Research Center to transfer eight of its chimpanzees to a zoo in the U.K. (The ESA requires an export permit in order to export endangered species.) NEAVS sued, lodging several causes of action, but the FWS moved to dismiss for lack of standing.
NEAVS argued that it had informational standing, "because the FWS's failure to collect the information necessary to conclude that the authorized export will 'enhance the survival' of the chimpanzee species." It argued that it had organizational standing, because FWS's permit decision would harm its ability to carry out a key mission--ending the use of animals in research, testing, and science education. And it argued that its members had individual standing, because those members formed strong bonds with the particular chimpanzees that will be exported, and that they hope to see them again.
The court held that NEAVS lacked informational standing, because Section 10(c) doesn't require an agency to collect the information that NEAVS cites. "By its terms, then, Section 10(c) creates a 'right to information[,]' but that right extends only to the information that the agency receives in connection with a permit application, and Congress did not impose any duty to make an affirmative effort to collect certain information as part of the permitting process . . . ."
The court held that NEAVS lacked organizational standing, because, under circuit precedent, its interests are simply too abstract. "NEAVS has not shown that [the] export permit impairs NEAVS's own activities or operations in any perceptible way. Indeed, the testimony that Plaintiffs have offered comes nowhere close to specifying how the permit interferes with NEAVS's ability to do its job . . . and, instead, NEAVS's declarant makes statements that are remarkably close to the kinds of general mission-frustration contentions that the D.C. Circuit has considered (and rejected) as a basis for finding organizational standing.
The court held that there was no individual standing, because "the dashed-hopes harm these individual plaintiffs allegedly have suffered" is not an injury in fact, and it "is also not even fairly traceable to FWS's decision to issue the export permit." And any aesthetic injury was to speculative, or was self-inflicted.
The Seventh Circuit had little patience at oral arguments yesterday for Governor Mike Pence's position defending his anti-Syrian-refugee policy in Indiana. Pence sought to appeal a lower court's preliminary injunction halting his policy, but the Seventh Circuit panel was all but outright hostile to Pence's arguments. The panel's pointed questions--and the Governor's utter lack of coherent responses--only revealed that Pence's policy (and his defense of it in this case) is just raw politics.
The arguments came just days after the White House announced that it would increase the total number of all refugees admitted next year.
The case came to the court after a lower court granted a preliminary injunction against Governor Pence's order that state agencies stop using federal Refugee Act funds to resettle Syrian refugees in Indiana "pending assurances from the federal government that proper security measures have been achieved." Under the policy, "[u]nless and until the state of Indiana receives assurances that proper security measures are in place, this policy will remain in full force and effect."
One of the groups that receives federal Refugee Act funds (through the state) to help resettle Syrians brought suit, arguing that Pence's order was preempted by the federal Refugee Act and that it violated Equal Protection and Title VI. The lower court granted a preliminary injunction, finding a likelihood of success on the merits of the discrimination claims and (without specifically holding) a likelihood of success on the preemption claim.
The Seventh Circuit panel focused on preemption and, in particular, Governor Pence's (lack of) authority to take federal resettlement funds designated for resettlement of refugees, including Syrians, but to refuse to use them to resettle Syrians. According to the panel, nothing in the Refugee Act authorizes a state governor to pick and choose among refugees in this way (although a state could decline to take Refugee Act funds altogether), and nothing delegates the power to a state governor to second-guess the State Department and the President himself on judgments about the which refugees present security concerns.
The Governor pointed to congressional testimony by the FBI that, according to the Governor, said that the government couldn't guarantee that Syrian refugees wouldn't pose a security risk.
But Judge Easterbrook pointed out that it's not the FBI's call--and it's certainly not a state governor's call. Under the Refugee Act, the State Department makes that call. And nothing gives a state governor the authority to discard the judgment of the State Department and the President himself as to the security risk of any particular group of refugees.
Tuesday, September 13, 2016
The Third Circuit ruled in Associated Builders v. City of Jersey City that the City's efforts to enforce labor standards through its tax subsidies is subject to challenge under the National Labor Relations Act, ERISA, and the dormant Commerce Clause. In particular, the court said that Jersey City acted as a regulator, not a market participant, when in awarded tax subsidies to developers on the condition that they enter into certain agreements with labor unions that bind the developers to negotiate with a union and cover employees in union negotiations, even if employees aren't a members.
The ruling only says Jersey City's practice is subject to NLRA, ERISA, and dormant Commerce Clause challenge--not that the practices violates them. That's now the question on remand.
The case arose when a developer challenged Jersey City's practice of offering tax subsidies on the condition that a developer execute a project labor agreement ("PLAs"), an agreement that requires developers to abide by a pre-hire collective bargaining agreement that covers all employees during the term of the project. As such, a PLA is an agreement between the developer and a labor union, and, because it's entered into with a labor union, it requires a developer to negotiate with the union and requires that all employees be represented by that union in negotiations--even if the developer doesn't ordinarily employ unionized labor, and even if the employees are not union members.
Jersey City argued that it fell under the "market participant" exception to the NLRA, ERISA, and the dormant Commerce Clause, and that therefore those provisions didn't apply.
But the Third Circuit disagreed. The court ruled that Jersey City wasn't a market participant, because, under the circuit test, "the City lacks a proprietary interest in Tax Abated Projects." The court ruled that Camps Newfound/Owatonna, Inc. v. Town of Harrison dictated the result. In that case, the Supreme Court held that Maine wasn't acting as a market participant when it provided "general exemption from real estate and personal property taxes for 'benevolent and charitable institutions incorporated' in the state, but provided more limited or no tax benefits to charities benefiting residents of other states. The court also distinguished Dep't of Revenue v. Davis, saying that in that case Kentucky sold the bonds, whereas Jersey City isn't selling anything.
The ruling sends this case back to the district court for a ruling on the merits.
Monday, September 12, 2016
Reversing the district court's grant of summary judgment to the Maricopa County Sheriff, the Ninth Circuit's opinion in Mendiola-Martinez v. Arpaio held that shackling a pregnant woman while she gives birth might rise to a constitutional violation:
We are presented with an important and complex issue of first impression in our circuit: whether the U.S. Constitution allows law enforcement officers to restrain a female inmate while she is pregnant, in labor, or during postpartum recovery. We hold today that in this case, the answer to that question depends on factual disputes a properly instructed jury must resolve.
Ms. Mediola-Martinez was 6 months pregnant when she was arrested for forgery and unconstitutionally detained: "Because she could not prove she was a legal resident of the United States, she was detained under the Arizona Bailable Offenses Act, Ariz. Rev. Stat. Ann. § 13- 3961(A)(5)," before the Ninth Circuit "later ruled it unconstitutional. See Lopez-Valenzuela v. Arpaio, 770 F.3d 772, 792 (9th Cir. 2014) (en banc), cert denied, 135 S. Ct. 2046 (2015)."
Ms. Mediola-Martinez went into early labor about two months later. During the actual C-section procedure, she was not restrained. However, before the procedure when she was "in active labor" and during the postpartum recovery, she was restrained. She had plead guilty a few days before the birth and was released on a sentence of time-served a few days after.
The Ninth Circuit panel acknowledged that the weight of precedent and evidence decries the practice of shackling pregnant women in its discussion of whether the practice is a "sufficiently serious deprivation" of medical care posing a substantial risk of serious harm and thus constitutes an Eighth Amendment claim. Additionally, the panel held that she had sufficiently alleged deliberate indifference. A jury, the court held, should consider this claim.
The Ninth Circuit was not so welcoming to the Equal Protection Clause claim. Mediola-Martinez argued that the county's restraint policy discriminated on the basis of race against Mexican-Americans. But as the court noted, she needed to show that the "Restraint Policy not only had a discriminatory impact, but that it was enacted with an intent or purpose to discriminate against members of a protected class." The "offensive quotes" of Sheriff Arpaio were not sufficient to prove intent: "Even if those hearsay statements were admissible, however, they do not mention the Restraint Policy and do not otherwise lead to any inference that Sheriff Arpaio’s 2006 Restraint Policy was promulgated to discriminate against Mexican nationals." Likewise, discriminatory intent could not be inferred from the general population statistics; there needs to be a "gross" statistical disparity to raise the specter of intent.
The court was cautious but clear:
Crafting a restraint policy that balances safety concerns with the inmates’ medical needs is equally challenging. But it is not impossible. And we leave it to a jury to decide whether the risk the Maricopa County Restraint Policy posed to Mendiola-Martinez was justified, or whether the County Defendants went a step too far.
Or perhaps several steps?
image: "Birth Room" via
In its opinion in Wood v. Collier, Judge Patrick Higginbotham wrote for the panel and rejected the claims of death row inmates that Texas is obliged by the Eighth Amendment’s prohibition on cruel and unusual punishment and the Fourteenth Amendment’s guarantee of equal protection under the law to re-test the execution drug - - -a single, five-gram dose of pentobarbital - - - to assure it does not present a high risk of unnecessary pain.
The identity and sources of drugs to accomplish "lethal injection" has been much litigated, including the Court's 2015 decision in Glossip v. Gross, rejecting an Eighth Amendment challenge to Oklahoma's three-drug lethal injection cocktail. As this Fifth Circuit opinion notes:
Texas originally used pentobarbital purchased from a pharmaceutical firm in its executions. However in 2011, Lundbeck, the Danish pharmaceutical firm that produces manufactured pentobarbital, refused to supply the drug to states that execute by lethal injection.In response, in September 2013, Texas began purchasing pentobarbital compounded by pharmacies.Texas alleges, and Appellants do not dispute, that Texas has used compounded pentobarbital to execute thirty- two prisoners since 2013 without issue.
Yet in June, Texas agreed to re-test the pentobarbital for a death sentenced inmate, mooting his civil action. The inmates here argue that this settlement essentially substantiates their Eighth Amendment claim and creates an Equal Protection Clause claim. The court disagreed:
However one kneads the protean language of equal protection jurisprudence, the inescapable reality is that these prisoners have not demonstrated that a failure to retest brings the risk of unnecessary pain forbidden by the Eighth Amendment. Attempting to bridge this shortfall in their submission with equal protection language, while creative, brings an argument that is ultimately no more than word play.
In short, the "strategic decision" of Texas to re-test the drug for one inmate is irrelevant for the others, especially "in the context of an ever-changing array of suits attacking its use of capital punishment from all angles."