Monday, June 26, 2017
When the Supreme Court granted certiorari and modified the lower courts' injunctions halting President Trump's travel ban today, it also directed the parties to brief this question: "Whether the challenges to Section 2(c) became moot on June 14, 2017."
The question matters, because June 14, 2017, is the date on which the 90-day ban would have expired under the order's stated effective date, March 16, 2017. In other words, the cases should have become moot on June 14, because that's when the ban, by the order's own terms, would end, anyway.
But that same day, President Trump issued an order stating that the new effective date for each enjoined provision of the travel ban would be the date on which the injunctions in those cases "are lifted or stayed with respect to that provision." The government argues that the order solves the mootness problem, because the enjoined provisions, including the 90-day ban wouldn't start until the injunctions go away.
But President Trump's order purporting to extend the effective date doesn't un-moot the case as of June 14, and it won't un-moot it when it goes to the Court in October.
As to June 14: The stated purpose for the 90-day ban was "[t]o temporarily reduce investigative burdens on relevant agencies during the [20-day review period of foreign nations' practices], to ensure the proper review and maximum utilization of available resources for the screening and vetting of foreign nationals, to ensure that adequate standards are established to prevent infiltration by foreign terrorists . . . ." But none of these reasons supports extending the effective date while injunctions remained in place. In other words, the government could move forward with all of those things while the injunctions were in place, thus securing the nation's safety against nationals from the six identified countries (the other reason for the 90-day ban), and obviating the need for 90 days after the injunctions go away.
As to October: Even if the government and Court take the position that the circuits' injunctions applied to "ensur[ing] the proper review and maximum utilization of available resources for the screening and vetting of foreign nationals" and "ensur[ing] that adequate standards are established to prevent infiltrating by foreign terrorists"--in other words, that the injunctions halted even the government's own review of its own processes, so that President Trump's subsequent order really did un-moot the case as of June 14--the case would seem to be moot by the time the Court hears it in October. That's because President Trump's subsequent order--the one purporting to extend the effective date--says that the ban again becomes effective when the injunctions "are lifted or stayed . . . ." It seems that the Supreme Court just "lifted or stayed" them, at least insofar as the government can re-start any stalled process to review government vetting standards. (The Court itself seems to have suggested so, when it wrote that "we fully expect that the relief we grant today will permit the Executive to conclude its internal work and provide adequate notice to foreign governments within the 90-day life of [the ban].") If so, 90 days will pass before the Court hears the case in October. In other words, it'll be moot in October.
Still, this can't be the result that the Court foresees. If it were, it wouldn't waste everybody's time and energy on briefing the mootness question as of June 14. So: Even if the case was, or becomes, technically moot, look for the Court to get to the merits.
In a per curiam opinion in the so-called "travel ban" or "Muslim ban" cases, Trump v. International Refugee Assistance Project and Trump v. Hawai'i, the Court has granted the federal government's petitions for certiorari and granted the stay applications in part. The Fourth Circuit en banc and the Ninth Circuit had both found that the challengers to the President's March 6, 2017 Executive Order "Protecting The Nation From Foreign Terrorist Entry Into The United States" (now numbered EO 13,780), known as EO-2.
Recall that the Fourth Circuit en banc in Trump v. International Refugee Assistance Project affirmed the injunction against EO-2 based on the Establishment Clause. As the Supreme Court's opinion phrases it, the Fourth Circuit
majority concluded that the primary purpose of §2(c) was religious, in violation of the First Amendment: A reasonable observer familiar with all the circumstances—including the predominantly Muslim character of the designated countries and statements made by President Trump during his Presidential campaign—would conclude that §2(c) was motivated principally by a desire to exclude Muslims from the United States, not by considerations relating to national security. Having reached this conclusion, the court upheld the preliminary injunction prohibiting enforcement of §2(c) [of EO-2] against any foreign national seeking to enter this country.
Recall also that the Ninth Circuit unanimous panel similarly affirmed a district judge's injunction against EO-2, but on the grounds that EO-2 likely exceeded the president's statutory authority, thus only implicitly reaching the constitutional issue.
In today's opinion from the Court, the Court granted the petitions for certiorari in both cases, consolidated the cases, and set them for the October 2017 Term, as well as directing briefing on the issues of mootness.
Importantly, the Court narrowed the injunctive relief imposed by the appellate courts. As to §2(c) of EO-2, which suspended entry in the United States, the Court found the injunction balanced the equities incorrectly as to "foreign nationals abroad who have no connection to the United States at all." Thus, "§2(c) may not be enforced against foreign nationals who have a credible claim of a bona fide relationship with a person or entity in the United States. All other foreign nationals are subject to the provisions of EO–2."
Similarly, as to §6(b) refugee cap enjoined by the Ninth Circuit, the Court found that refugees who lack connection to the United States should not be covered. However, EO §6 "may not be enforced against an individual seeking admission as a refugee who can credibly claim a bona fide relationship" with the United States.
In discussing §2(c), the Court provided examples of the narrowed injunction:
The facts of these cases illustrate the sort of relationship that qualifies. For individuals, a close familial relation- ship is required. A foreign national who wishes to enter the United States to live with or visit a family member, like Doe’s wife or Dr. Elshikh’s mother-in-law, clearly has such a relationship. As for entities, the relationship must be formal, documented, and formed in the ordinary course, rather than for the purpose of evading EO–2. The students from the designated countries who have been admit- ted to the University of Hawaii have such a relationship with an American entity. So too would a worker who accepted an offer of employment from an American company or a lecturer invited to address an American audience. Not so someone who enters into a relationship sim- ply to avoid §2(c): For example, a nonprofit group devoted to immigration issues may not contact foreign nationals from the designated countries, add them to client lists, and then secure their entry by claiming injury from their exclusion.
The Court's decision may give both "sides" a basis for claiming victory, but of course the decision is a temporary one and awaits a full decision on the merits.
June 26, 2017 in Cases and Case Materials, Courts and Judging, Current Affairs, Establishment Clause, Executive Authority, First Amendment, Mootness, Opinion Analysis, Supreme Court (US) | Permalink | Comments (1)
SCOTUS in Trinity Lutheran Finds Missouri's Denial of Funding to Church Playground Violates First Amendment
In its opinion in Trinity Lutheran Church of Columbia, Mo. v. Comer, involving a First Amendment Free Exercise Clause challenge to a denial of state funding that was based on Missouri's state constitutional provision, a so-called Blaine Amendment, prohibiting any state funds from being awarded to religious organizations.
Recall that at the oral arguments, most Justices seemed skeptical of Missouri's argument. However, recall that the Eighth Circuit had concluded that Trinity Church sought an unprecedented ruling -- that a state constitution violates the First Amendment and the Equal Protection Clause if it bars the grant of public funds to a church." The Eighth Circuit relied in part on Locke v. Davey, 540 U.S. 712 (2004), in which "the Court upheld State of Washington statutes and constitutional provisions that barred public scholarship aid to post-secondary students pursuing a degree in theology." For the Eighth Circuit, "while there is active academic and judicial debate about the breadth of the decision, we conclude that Locke" supported circuit precedent that foreclosed the challenge to the Missouri state constitutional provision.
In the Trinity Lutheran opinion authored by Chief Justice Roberts, the Court characterized the Missouri policy as one that "expressly discriminates against otherwise eligible recipients by disqualifying them from a public benefit solely because of their religious character." Relying on the Free Exercise precedent it had discussed, it concluded that if such cases "make one thing clear, it is that such a policy imposes a penalty on the free exercise of religion that triggers the most exacting scrutiny." The Court added that "Trinity Lutheran is not claiming any entitlement to a subsidy. It instead asserts a right to participate in a government program without disavowing its religious character."
Yet the question of subsidy or funding caused some consternation amongst the Justices who joined the Chief Justice's opinion for the Court. Footnote 3, which provides in full "This case involves express discrimination based on religious identity with respect to playground resurfacing. We do not address religious uses of funding or other forms of discrimination" is joined only by a plurality - - - Justices Thomas and Gorsuch explicitly exempted this footnote. In two brief concurring opinions, one by Thomas joined by Gorsuch and one by Gorsuch joined by Thomas, the continued vitality of Locke v. Davey is questioned.
In the Court's opinion, Locke v. Davey is distinguished because "Davey was not denied a state-funded scholarship of who he was but because of what he proposed to do - to use the funds to prepare for the ministry." (emphasis in original). For Gorsuch, this status-use distinction is not sufficient.
Justice Sotomayor's dissenting opinion, joined by Justice Ginsburg, and almost twice as long as the Chief Justice's opinion for the Court, is rich with originalist history as well a discussion of Locke v. Davey and a citation to the 38 state constitutional provisions similar to the Missouri one. For Sotomayor,
Missouri has recognized the simple truth that, even absent an Establishment Clause violation, the transfer of public funds to houses of worship raises concerns that sit exactly between the Religion Clauses. To avoid those concerns, and only those concerns, it has prohibited such funding. In doing so, it made the same choice made by the earliest States centuries ago and many other States in the years since. The Constitution permits this choice.
Sotomayor points to the possible ramifications of the opinion, including the troublesome footnote 3:
The Court today dismantles a core protection for religious freedom provided in these Clauses. It holds not just that a government may support houses of worship with taxpayer funds, but that—at least in this case and perhaps in others, see ante at 14, n. 3—it must do so whenever it decides to create a funding program. History shows that the Religion Clauses separate the public treasury from religious coffers as one measure to secure the kind of freedom of conscience that benefits both religion and government. If this separation means anything, it means that the government cannot, or at the very least need not, tax its citizens and turn that money over to houses of worship. The Court today blinds itself to the outcome this history requires and leads us instead to a place where separation of church and state is a constitutional slogan, not a constitutional commitment. I dissent.
It dies seem that Trinity Lutheran opens the floodgates for claims by religious entities that they are being "discriminated" against whenever there are secular provisions for funding.
Sunday, June 25, 2017
Fifth Circuit Says "Stigmatic" Harm Isn't Enough for Standing to Challenge State Opposite-Sex "Anti-Discrimination" Measure
The Fifth Circuit ruled last week that a group of plaintiffs lacked standing to challenge Mississippi's law that bans discrimination against those who believe that marriage is a union of one man and one woman. The court said that the plaintiffs pleaded only "stigmatic" harm, not concrete and particularized harm, and that this wasn't enough to get into federal course.
Mississippi's provision bans state "discriminatory action" against those whose "religious beliefs or moral convictions" say that marriage is a union between only one man and one woman. It applies to religious organizations when they make decisions regarding employment, housing, placement of children in foster or adoptive homes, or the "solemnization of a marriage based on a belief listed" in the provision. It also applies to parents if they raise their foster or adoptive children in accordance to the belief covered by the provision. And it applies to doctors, mental health counselors, and businesses that offer wedding-related services. The statute creates a private right of action for individuals for any violations by state officials and allows its use as a defense in private suits over conduct covered by the statute.
The plaintiffs are residents of Mississippi and two organizations (a church and a secular non-profit) that do not share the provision's belief that marriage is only between one man and one woman. They argued that "they are injured by the 'clear message' sent by [the provision] that the 'state government disapproves of and is hostile to same-sex couples, to unmarried people who engage in sexual relations, and to transgender people." They claimed that the provision violated the Establishment Clause and equal protection.
The Fifth Circuit tossed the case for lack of standing. The court said that the plaintiffs asserted only "stigmatic" harm, not concrete and particularized harm, and that the "stigmatic" harm simply wasn't enough to get into federal court. (The court held that the plaintiffs' asserted harm was nothing like the actual and concrete "exposure" harm in the monument, display, and prayer-at-football game cases. The court rejected the plaintiffs' argument that their case was just like the plaintiffs' case in Romer v. Evans, because the Romer Court didn't address standing, and lower courts therefore can't use it for that purpose.) The court also rejected the plaintiffs' theory of taxpayer standing (based on Flast v. Cohen), because the government hadn't yet spent money in support of the provision.
The ruling ends the case and leaves Mississippi's statute on the books--for now. Under the ruling, a viable challenger will probably have to wait for a concrete and particularized harm (discrimination) at the hands of a person or organization who falls within the protection of the provision, sue that person or organization, and argue that the provision violates the Constitution when the defendant raises it as a defense.
Saturday, June 24, 2017
The D.C. Circuit ruled yesterday that Millennium Pipeline Company lacked standing to sue the New York State Department of Environmental Conservation for its foot-dragging on Millennium's application for a water-quality certificate--a prerequisite for building a pipeline under the Clean Water Act.
The ruling means that Millennium's case against the state agency is dismissed. But it also means that Millennium can proceed directly to the Federal Energy Regulatory Commission to get direct approval for the pipeline, considering the state agency's consideration waived.
The case arose when Millennium petitioned the state agency for a water-quality certificate, required under the Clean Water Act as a first step in gaining FERC approval for the pipeline. The state agency sat on the petition for over a year, however, arguing that it was incomplete. Millennium then sued the state agency, asking for a court order to require the agency to act so that it could take its application on to FERC.
But the D.C. Circuit ruled that Millennium lacked standing. That's because under the Clean Water Act when a state agency delays a decision for a year, the agency is deemed to have waived its consideration, and the applicant can take the application directly to FERC. As a result, the court said that Millennium hadn't suffered any harm from the state agency; after all, the agency's inaction only meant that Millennium could go right to FERC. The court went on to say that Millennium could sue FERC if it rejects the application, but that's down the road.
None of this breaks new law--and Millennium surely would have known this--so why'd Millennium sue? Probably because it anticipated opposition from the state agency down the road, and it wanted to get state-agency approval on the record now in order to preempt later opposition. The court had an answer for that, too: FERC, not the state agency, has final say, and Millennium can later sue FERC for any disapproval or delay.
Friday, June 23, 2017
The D.C. Circuit ruled today that a class-action against the D.C. school system for failing to identify pre-school children with disabilities in violation of the Individuals with Disabilities Education Act was not moot just because the children were no longer toddlers with a personal stake in the requested relief. The court went on to affirm the district court's class certification and its comprehensive injunction designed to bring the District into compliance with the IDEA.
The case arose when the parents of six children, then ages three to six, sued D.C., arguing that the District failed to identify children with disabilities in violation of the IDEA. The district court granted class certification to a broad class of "[a]ll children [between three and five] who are or may be eligible for special education and related services" in D.C. and whom the District failed or would fail to "identify, locate, evaluate or offer special education and related services." The D.C. Circuit, however, vacated the class certification in light of Wal-Mart v. Dukes, the Supreme Court case rejecting "one of the most expansive class[es] ever," and which came down during the district court trial. The district court then certified four subclasses, all including three-to-five year-olds alleging different IDEA violations. The court then issued a comprehensive injunction to bring the District in line with the IDEA.
On appeal, the district argued that the case was moot, because all of the plaintiffs had moved beyond preschool.
The D.C. Circuit rejected that argument. The court held that the relation-back exception to the mootness doctrine in United States Parole Commission v. Geraghty applied, because the district court erroneously granted class certification, causing the litigation delay that resulted in the children aging out of their relief. The court explained: "Like the plaintiffs in Geraghty, the parents had live claims when they sought certification, and but for the district court's error, could have obtained proper class certification before their individual claims became moot."
The court noted that in Geraghty the district court erroneously denied class certification, whereas here the district court erroneously granted it. But the court said it didn't make a difference:
The point in Geraghty was that claims relate back when a trial court's error prevents a class from gaining independent status under Rule 23. Whether that error is the erroneous denial of class certification (as in Geraghty) or the erroneous certification of an excessively broad class (as here) makes no difference. What matters it that the named plaintiffs' claim became moot--and their class therefore never 'acquired . . . independent legal status'--due to the district court's mistake. In other words, but for the district court's error--certifying an overly broad class--the parents' claims would not have become moot. There is no legally relevant difference between this case and Geraghty.
In its en banc opinion in Retail Digital Network v. Prieto, the Ninth Circuit rejected a First Amendment challenge to a California prohibition of alcohol manufacturers and wholesalers from providing anything of value to retailers in exchange for advertising their alcohol products.
Plaintiff Retail Digital Network, RDN, installed and operated seven foot digital screen displays in liquor stores for the purpose of running advertisements for liquor products such as Moët Hennessy; the retail stores would would receive a portion of RDN's revenue. However, after originally participating in the advertising, Moët Hennessy withdrew, worried that the state would enforce California Business and Professions Code §25503(f)-(h) regarding such advertising arrangements.
The Ninth Circuit had upheld the provision more than thirty years ago in Actmedia, Inc. v. Stroh (1986), applying Central Hudson & Electric Corporation v. Public Service Commission of New York (1980). RDN argued, however, that Actmedia needed to be reconsidered, and contended that IMS v. Sorrell (2011) changed Central Hudson's commercial speech standard from "intermediate scrutiny" to "heightened scrutiny."
The en banc Ninth Circuit, with the exception of Chief Judge Sidney Thomas in a lone dissent, rejected the argument that Sorrell changed the commercial speech standard of Central Hudson. The court's opinion has an excellent rehearsal of the doctrinal relevance of Sorrell after Central Hudson, including arguments derived from Sorrell itself and a discussion of sister-circuit cases. In short, the court finds that Central Hudson "continues to set the standard for assessing restrictions on commercial speech."
Applying Central Hudson, the court does depart in one aspect from its previous application in the thirty-year old precedent of Actmedia. The court found that even assuming "promoting temperance" is a substantial government interest under Central Hudson, the state statute could not be said to "directly and substantially advance that interest" as required by Central Hudson.
However, the court agreed that the statute "directly and materially advances the State's interest in maintaining a triple-tiered market system" for wines and liquor and "because there is a sufficient fit between that interest and the legislative scheme." This "triple-tiered" distribution scheme was adopted by California after the repeal of the Eighteenth Amendment to "prevent the resurgence of tied-houses." Tied-houses were retailers and saloons controlled by larger interests.
ConLawProfs looking for a good case to discuss commercial speech after Sorell might find RDN worth a look. As for whether the United States Supreme Court will take a look at RDN to clarify the commercial speech standard, RDN might also prove interesting.
Thursday, June 22, 2017
The Tenth Circuit ruled this week that the mother of a school child had standing to challenge under the Establishment Clause the school's fundraising and support for a religious mission trip, even though the child received just one e-mail and one flyer from school officials soliciting donations for the trip.
The ruling reversed a district court order dismissing the case on the ground that the child's exposure to unconstitutional activities at the school lacked "a degree of constancy or conspicuousness."
The case arose after public school officials sought donated or a school-sponsored, religious mission trip to Guatemala. Families enrolled in the district and the American Humanist Association filed suit, seeking nominal monetary damages and declaratory and injunctive relief. The district court dismissed all the claims, ruling that the plaintiffs failed to show sufficient harm and that they lacked standing as taxpayers. As to plaintiff Jane Zoe, the district court held that the harm--one e-mail soliciting donations and one flyer from school employees soliciting donations--wasn't pervasive enough to satisfy standing requirements.
The Tenth Circuit reversed as to Zoe. The court held that under well-settled Supreme Court and circuit precedent, any harm, even nominal harm, will do to establish standing, and that a plaintiff need not show any particular level of heightened pervasiveness or degree of harm.
But the court denied injunctive relief to Zoe, holding that "the record does not suggest that Zoe is likely to receive similar fundraising solicitations in the future." The court also held that the other individual plaintiffs lacked standing, because they couldn't show that they'd been exposed (like Zoe had).
The ruling sends the case back to the district court for consideration of the merits.
Monday, June 19, 2017
The Supreme Court ruled today that post-9/11 "of interest" detainees could not sue executive officials for damages for constitutional violations during their detention. Moreover, the ruling in Ziglar v. Abbasi all but wipes out future damages remedies against federal officials for constitutional violations, except in the very narrow circumstances of three cases where the Court has found such a remedy. (And those cases may be hanging on by just a string.)
The case arose when post-9/11 detainees at a federal detention facility sued then-AG John Ashcroft, then-FBI Director Robert Mueller, and then-INS Commissioner James Ziglar for abusive detention policies in violation of their Fourth- and Fifth-Amendment rights. The plaintiffs sought monetary damages under Bivens.
The Court today rejected those claims. In an opinion abounding with deference to Congress, Justice Kennedy, writing for himself and Chief Justice Roberts and Justices Thomas and Alito (Justices Sotomayor, Kagan, and Gorsuch were all recused), held that the case raised a new Bivens context and that special factors counseled against a Bivens remedy.
As to context, the Court set out this test:
If the case is different in a meaningful way from previous Bivens cases decided by this Court, then the context is new. Without endeavoring to create an exhaustive list of differences that are meaningful enough to make a given context a new one, some examples might prove instructive. A case might differ in a meaningful way because of the rank of the officers involved; the constitutional right at issue; the generality or specificity of the official action; the extent of judicial guidance as to how an officer should respond to the problem or emergency to be confronted; the statutory or other legal mandate under which the officer was operating; the risk or disruptive intrusion by the Judiciary into the functioning of other branches; or the present of potential special factors that previous Bivens cases did not consider.
In other words, if a new case isn't nearly on all fours with one of the three cases where the Court has found a Bivens remedy--Bivens itself (a Fourth Amendment violation), Davis v. Passman (an assistant's Fifth Amendment Due Process claim against a Congressman for gender discrimination), and Carlson v. Green (a prisoner's estate's Eighth Amendment Cruel-and-Unusual claim)--there's a new context. And the Court said that this case presented a new context.
As to special factors, the Court said that the claims "call[ed] into question the formulation and implementation of a general policy," that the policy related to the government's response to the 9/11 attacks (a national security concern, traditionally an area for the executive), that Congress had not provided a damages remedy, and that other remedies (injunctive relief, a habeas claim) were available.
Between the Court's very narrow view of new circumstances and its very broad view of special factors counseling against a Bivens remedy, this case failed. And the ruling ensures that very few future Bivens cases will succeed.
On another issue, the Court remanded a related claim against the prison warden, instructing the lower court to conduct a special-factors analysis. Finally, the Court rejected the plaintiffs' civil-rights conspiracy claim, holding that the defendants enjoyed qualified immunity, because the question whether officials all within the executive branch could constitute a conspiracy "is sufficiently open so that the officials in this suit could not be certain that [conspiracy] was applicable to their discussions and actions."
Justice Breyer dissented, joined by Justice Ginsburg.
In its opinion in Matal v. Tam, formerly Lee v. Tam, the United States Supreme Court has concluded that the disparagement provision in Section 2(a) of the Lanham Act, 15 U.S.C. § 1052(a), barring the the Patent and Trademark Office from registering scandalous, immoral, or disparaging marks, was unconstitutional because it violates the First Amendment. Recall that the underlying controversy involves the denial of trademark registration to a band called "The Slants" on the ground that the mark would be disparaging. Recall also that the en banc Federal Circuit held that the disparagement provision in Section 2(a) of the Lanham Act, 15 U.S.C. § 1052(a), barring the the Patent and Trademark Office from registering scandalous, immoral, or disparaging marks, was unconstitutional because it violates the First Amendment. The en banc majority found that the disparagement provision constituted viewpoint discrimination and failed strict scrutiny.
While all eight Justices participating in the decision agreed that the Federal Circuit should be affirmed, and all Justices agreed that the provision was subject to strict scrutiny as a viewpoint regulation, there was some disagreement regarding the applicability of other First Amendment doctrines as was apparent in oral argument.
Writing for the Court in most respects, Justice Alito's opinion concludes that the trademark disparagement provision applies to marks that disparage members of a racial or ethnic group (there was a statutory argument by Tam that this was not true) and is thus subject to the First Amendment. Justice Alito then proceeded to address three government arguments
- that the trademarks are government speech and thus not subject to the First Amendment;
- that trademarks are a form of government subsidy;
- that trademarks should be subject to a new "government program" doctrine.
As to the first discussion on government speech, all the Justices joined Alito's opinion. However, as to the second and third arguments made by the government, only Chief Justice Roberts, and Justices Thomas and Breyer joined. In the concurring opinion by Justice Kennedy, joined by Justices Ginsburg, Sotomayor, and Kagan, Kennedy writes that the "viewpoint discrimination rationale renders unnecessary any extended treatment of other questions."
The issue of whether First Amendment viewpoint discrimination doctrine applies to commercial speech has unanimous assent, with Alito's explanation for four Justices being a bit more extensive than Kennedy's explanation for four Justices, with the supplement of Thomas' additional concurrence to state that commercial speech should not be a separate First Amendment doctrine in cases content regulations.
The essence of the case is that the disparagement provision is viewpoint discrimination subject to strict scrutiny that it does not survive. For Justice Alito (in a plurality portion of the opinion), the matter is resolved thusly:
the disparagement clause is not “narrowly drawn” to drive out trademarks that support invidious discrimination. The clause reaches any trademark that disparages any person, group, or institution. It applies to trademarks like the following: “Down with racists,” “Down with sexists,” “Down with homophobes.” It is not an anti-discrimination clause; it is a happy-talk clause. In this way, it goes much further than is necessary to serve the interest asserted.
[emphasis in original]
From the perspective of the other four Justices, Kennedy phrases the problem a bit differently in addressing the government's arguments that the disparagement clause was not actually a viewpoint discrimination. Kennedy ends by stating
A law that can be directed against speech found offensive to some portion of the public can be turned against minority and dissenting views to the detriment of all. The First Amendment does not entrust that power to the government’s benevolence. Instead, our reliance must be on the substantial safeguards of free and open discussion in a democratic society.
Is this a distinction without a difference? Doctrinally, it makes little difference. But it does convey a difference in the mood of the Court.
In the United States Supreme Court unanimous decision in Packingham v. North Carolina, the Court found that the state statute, NCGS § 14-202.5, making it a felony for registered sex offenders to access commercial social networking sites, violated the First Amendment. This outcome was predictable given the then-eight Justices' skepticism during the oral arguments in February. Recall that Packingham was convicted of the North Carolina felony for his Facebook page on which he wrote " Thank you Jesus. God is good" regarding a result on his parking ticket.
The Court's majority opinion by Justice Kennedy, joined by Justices Ginsburg, Breyer, Sotomayor, and Kagan, is a mere 10 pages. The Court not only stresses the breadth of the North Carolina statute, but highlights the role of the Internet in "our modern society and culture" as vital to the First Amendment:
A fundamental principle of the First Amendment is that all persons have access to places where they can speak and listen, and then, after reflection, speak and listen once more. The Court has sought to protect the right to speak in this spatial context. . . .
While in the past there may have been difficulty in identifying the most important places (in a spatial sense)for the exchange of views, today the answer is clear. It is cyberspace—the “vast democratic forums of the Internet” in general, Reno v. American Civil Liberties Union, 521 U. S. 844, 868 (1997), and social media in particular. Seven in ten American adults use at least one Internet social networking service. . . .
While we now may be coming to the realization that the Cyber Age is a revolution of historic proportions, we cannot appreciate yet its full dimensions and vast potential to alter how we think, express ourselves, and define who we want to be. The forces and directions of the Internet are so new, so protean, and sofar reaching that courts must be conscious that what they say today might be obsolete tomorrow.
This case is one of the first this Court has taken to address the relationship between the First Amendment and the modern Internet. As a result, the Court must exercise extreme caution before suggesting that the First Amendment provides scant protection for access to vast networks in that medium.
For the Court majority, even assuming the North Carolina statute was content neutral and should be analyzed under intermediate scrutiny, the statute "enacts a prohibition unprecedented in the scope of First Amendment speech it burdens." The Court noted that the present statute applies to all social networking sites including Facebook, LinkedIn, and Twitter, and that a state could possibly enact a more specific provision, such as prohibiting contacting a minor on social media.
In sum, to foreclose access to social media altogether is to prevent the user from engaging in the legitimate exercise of First Amendment rights. It is unsettling to suggest that only a limited set of websites can be used even by persons who have completed their sentences. Even convicted criminals—and in some instances especially convicted criminals—might receive legitimate benefits from these means for access to the world of ideas, in particular if they seek to reform and to pursue lawful and rewarding lives.
While Justice Alito's opinion, joined by Chief Justice Roberts and Justice Thomas, agrees with the outcome, Alito criticizes Kennedy's opinion for the Court as not being sufficiently circumspect and cautious, and for engaging in "loose rhetoric." For Alito, the problem with the North Carolina statute is likewise its breadth: "its wide sweep precludes access to a large number of websites that are most unlikely to facilitate the commission of a sex crime against a child." Among Alito's examples are Amazon.com, the Washington Post website, and WebMD. Yet Alito's opinion, just slightly longer than Kennedy's for the Court, found it important to argue that the entirety of the internet or even social media sites are "the 21st century equivalent of public streets and parks." In support of this, Alito argues that the internet offers an "unprecedented degree of anonymity."
Yet Alito's concurring opinion does not essentially disagree with the Court's finding that it would be possible for a state to craft a sufficiently narrow statute. The disagreement, however, may be in the room for states to maneuver in drafting such a criminal statute.
Wednesday, June 14, 2017
The Third Circuit last week dismissed a case challenging an elected candidate's qualifications for the Virgin Islands legislature. The ruling means that the elected candidate will not be seated.
The case arose when Kevin Rodriguez was elected to serve in the Virgin Islands Legislature. After the election, but before the swearing-in, a rival candidate, Janelle Sarauw, challenged Rodriguez's qualifications to serve, based on Rodriguez's prior representation in a bankruptcy case that he lived in Tennessee. (The VI Revised Organic Act requires that a person serving in the VI legislature reside in the VI for at least three years preceding the date of his or her election.) Sarauw sued in the VI courts and sought an injunction compelling the Board of Elections to de-certify Rodriguez as a qualified candidate, thus preventing him from taking a seat in the 32nd Legislature. (The Board, an independently elected body outside the legislature and judiciary, has authority under the ROA to determine qualifications of candidates before swearing in.)
While that case was moving up and down the VI courts, the 32nd Legislature was sworn in (without Rodriguez, because the courts were still working out how to deal with his qualification). Rodriguez then removed the case to federal court (remember, this is all federal law, including the ROA, because of the VI's status in relation to the US), asking for an injunction directing the 32nd Legislature to seat him.
The Third Circuit tossed the case. The court ruled that the courts lacked authority to rule a candidate qualified after the swearing in, because the ROA says that the legislature shall have the sole power to determine the qualifications of its members. In other words, the issue was textually committed to a coordinate branch of government--a political question. (The court ruled that the ROA contains separation-of-powers principles, which form the basis of the political question doctrine.) The court noted that separation-of-powers and the ROA would not prohibit the courts from ruling on a candidate's qualifications before swearing in, when the Board has authority to make such a determination, because the separation of powers don't apply to the Board, "a popularly elected and independent entity" that's not a part of the legislative or judicial branches. But Rodriguez only removed his case after the swearing-in, so his case was always a political question.
The court also ruled that the portion of the case brought by Sarauw, the "removed case," was moot, because the legislature had already been sworn in.
Along the way, the governor ordered a special election, and Sarauw won.
Monday, June 12, 2017
In its per curiam unanimous opinion in Hawai'i v. Trump, the Ninth Circuit panel affirmed the finding of standing and held that the President's March 6, 2017 Executive Order "Protecting The Nation From Foreign Terrorist Entry Into The United States" (now numbered EO 13,780) (known as EO2, the revised travel ban or "Muslim Ban 2.0) most likely conflicts with the Immigration and Nationality Act (INA). Thus, the Ninth Circuit affirmed the injunction against EO2.
The oral argument about a month ago raised both the statutory and constitutional issues, but recall that District Judge Derrick Watson's opinion in Hawai'i v. Trump centered on the Establishment Clause claim. For the Ninth Circuit, however, the statutory claim took precedence. The Ninth Circuit noted that "the district court decided an important and controversial constitutional claim without first expressing its views on Plaintiffs’ statutory claims, including their INA-based claim," although the " INA claim was squarely before the district court." The Ninth Circuit referred to the "admonition that “courts should be extremely careful not to issue unnecessary constitutional rulings,”and concluded that because "Plaintiffs have shown a likelihood of success on the merits of that claim," the court "need not" and does not "reach the Establishment Clause claim to resolve this appeal."
On the constitutional ramifications of finding EO2 exceeded the president's power under the statute, the court invoked the famous "Steel Seizure Case" framework by Justice Jackson:
Finally, we note that in considering the President’s authority, we are
cognizant of Justice Jackson’s tripartite framework in Youngstown Sheet & Tube
Co. v. Sawyer. See 343 U.S. 579, 635–38 (1952) (Jackson, J., concurring).
Section 1182(f) ordinarily places the President’s authority at its maximum. “When the President acts pursuant to an express or implied authorization of Congress, his authority is at its maximum, for it includes all that he possesses in his own right plus all that Congress can delegate.” Id. at 635. However, given the express will procedure for refugee admissions to this country, and § 1182(a)(3)(B)’s criteria for determining terrorism-related inadmissibility, the President took measures that were incompatible with the expressed will of Congress, placing his power “at its lowest ebb.” Id. at 637. In this zone, “Presidential claim to a power at once so conclusive and preclusive must be scrutinized with caution, for what is at stake is the equilibrium established by our constitutional system.” Id. at 638.
But, as the court continued, there would be a different state of affairs if Congress acted:
We have based our decision holding the entry ban unlawful on statutory considerations, and nothing said herein precludes Congress and the President from reaching a new understanding and confirming it by statute. If there were such consensus between Congress and the President, then we would view Presidential power at its maximum, and not in the weakened state based on conflict with statutory law. See id. at 635–38.
In two respects, the Ninth Circuit narrowed the injunction. First, it vacated the preliminary injunction "to the extent it enjoins internal review procedures that do not burden individuals outside of the executive branch of the federal government." Second, like the Fourth Circuit en banc opinion in International Refugee Assistant Project v. Trump, it held that the injunction should not be entered against the president as defendant. But the essential effect of the opinion affirms the injunction against EO2.
Thus, the controversial presidential travel ban Executive Orders have been challenged in courts and found invalid. EO1 was enjoined and eventually withdrawn. This Ninth Circuit opinion on EO2 on statutory grounds, joins the Fourth Circuit en banc opinion in International Refugee Assistant Project v. Trump finding EO2 most likely unconstitutional on Establishment Clause. The DOJ has sought review by the Supreme Court on the Fourth Circuit ruling; most likely the DOJ will similarly seek review of this Ninth Circuit ruling.
Monday, June 5, 2017
The Supreme Court ruled today that intervenors as of right under Rule 24(a)(2) have to meet Article III standing requirements if they wish to pursue relief not requested by a plaintiff.
But the Court didn't say whether the intervenor in the case sought relief different from the plaintiff. Instead, the Court remanded for further consideration on that point.
The case involved Steven Sherman's regulatory takings lawsuit against the town of Chester, New York, for holding up his housing subdivision project, MareBrook. A real estate development corporation, Laroe Estates, Inc., paid Sherman more than $2.5 million for a portion of the property, but agreed to transfer a certain number of lots back to Sherman when the town approved the development. Under the agreement, Laroe also had authority to settle a debt that Sherman owed a bank and to terminate the agreement with Sherman if the settlement failed. It did fail, and the bank took over the property, but Laroe didn't terminate its agreement with Sherman.
Laroe moved to intervene as of right pursuant to Rule 24(a)(2).
The Court ruled that Laroe had to satisfy Article III standing, if it sought relief different than the relief that Sherman sought. (The parties (and the United States as amicus) all agreed on this.) But the Court said that the record was ambiguous as to the relief that Laroe actually sought. So it remanded the case for further proceedings.
If the lower courts determine that Laroe seeks relief that's different than the relief that Sherman seeks--including the same relief, but in its own (not Sherman's) name--Laroe will have to demonstrate its own Article III standing.
Friday, June 2, 2017
The Ninth Circuit ruled this week that a state fee imposed on firearms transfers--and, in particular, a portion of the fee that goes to fund enforcement efforts against illegal firearms purchasers--does not violate the Second Amendment.
The case involved a challenge to California's firearms transfer fee--a $19 fee on firearms transfers, about $5 of which goes to fund enforcement efforts against illegal firearms purchasers. The plaintiffs claimed that the $5 portion of the fee violated the Second Amendment, because it imposed a burden on the right to bear arms that wasn't closely enough related to an important government interest.
The court first assumed, without deciding, that the fee fell within the core of the Second Amendment. It applied only intermediate scrutiny, because the fee wasn't a substantial burden on anyone's ability to actually get a firearm. (The court noted that the plaintiff "has neither alleged nor argued that the [fee] has any impact on the plaintiffs' actual ability to obtain and possess a firearm.") (The court noted that it always applied intermediate scrutiny at the second step of the familiar Second Amendment test, but it appeared to hold open the possibility that higher scrutiny would apply to laws that "severely burden" the right.)
The court said that the fee easily met intermediate scrutiny:
Given the State's important interest in promoting public safety and disarming prohibited persons under the first prong of the test, there is a "reasonable fit" between these important objectives and the challenged portion of the . . . fee.
The ruling means that the fee stays on the books.
Thursday, May 25, 2017
In its opinion in International Refugee Assistance Project (IRAP) v. Trump, heard by the en banc court without an intervening panel decision, the court affirmed in almost every respect Maryland District Judge Theodore Chuang's Opinion and nationwide injunction against the President's March 6, 2017 Executive Order "Protecting The Nation From Foreign Terrorist Entry Into The United States" (now numbered EO 13,780), which is colloquially known as the revised travel ban or "Muslim Ban 2.0." The court heard oral argument on May 8.
The court's opinion finding that the plaintiffs have standing and that the plaintiffs are likely to succeed on the merits of their Establishment Clause challenge to the Executive Order was authored by Chief Judge Roger Gregory with six other judges joining in full in the almost 80 page opinion. Additional opinions bring the total opinion pages to over 200: three other judges concurred in separate opinions; Three judges dissented in separate opinions (with the dissenters joining each of the dissenting opinions). Recall that two other judges recused.
On the merits of the Establishment Clause claim as applied to an Executive Order involving immigration, Judge Gregory's opinion for the court agreed with the United States that the deferential standard in Kleindienst v. Mandel (1972) is the appropriate starting point but disagreed with the government that it ended the inquiry. Instead, "Mandel's requirement that an immigration action be 'bona fide' may in some instances compel more searching judicial review." The court found that while the national security interest was facially legitimate, the plaintiffs made a requisite showing that it was provided in "bad faith."
Plaintiffs point to ample evidence that national security is not the true reason for EO-2, including, among other things, then-candidate Trump’s numerous campaign statements expressing animus towards the Islamic faith; his proposal to ban Muslims from entering the United States; his subsequent explanation that he would effectuate this ban by targeting “territories” instead of Muslims directly; the issuance of EO-1, which targeted certain majority-Muslim nations and included a preference for religious minorities; an advisor’s statement that the President had asked him to find a way to ban Muslims in a legal way; and the issuance of EO-2, which resembles EO-1 and which President Trump and his advisors described as having the same policy goals as EO-1. [citations to record omitted]. Plaintiffs also point to the comparably weak evidence that EO-2 is meant to address national security interests, including the exclusion of national security agencies from the decisionmaking process, the post hoc nature of the national security rationale, and evidence from DHS that EO-2 would not operate to diminish the threat of potential terrorist activity.
Having cleared the hurdle of Mandel, the court then considered the application of the Establishment Clause test articulated in Lemon v. Kurtzman, noting that "in the context of this case, there is an obvious symmetry between Mandel's "bona fide" prong and the constitutional inquiry establishment in Lemon. Both tests ask courts to evaluate the government's purpose for acting."
Thus, Judge Gregory's opinion analyzed some of the same material regarding the EO's bona fide quality to determine whether the EO had a primary secular government purpose as required under Lemon's first prong. But the analysis the court conducted under Lemon was much more detailed. The court relied upon McCreary County v. ACLU of Kentucky (2005), in which the United States Supreme Court concluded that a judge's initial removal of his posting of the Ten Commandments in the courthouse was not cured by his subsequent posting of the biblical text surrounded by other texts. In McCreary, the Court articulated the correct viewpoint as the "reasonable objective observer" who should take into account the traditional external signs but should not perform judicial psychoanalysis.
It is this portion of the opinion (Part IVA2; pages 54-70 in text) regarding the purpose of EO-2 that is central. The court finds there is a "compelling case" that EO-2's "primary purpose is religious." It begins by discussing the candidate's campaign statements, later rejecting the argument that these statements should be subject to a "bright-line rule" that they should not be considered. Instead, the court states that the "campaign statements here are probative of purpose because they are closely related in time, attributable to the primary decisionmaker, and specific and easily connected to the challenged action."
Just as the reasonable observer’s “world is not made brand new every morning,” McCreary, nor are we able to awake without the vivid memory of these statements. We cannot shut our eyes to such evidence when it stares us in the face, for “there’s none so blind as they that won’t see.” Jonathan Swift, Polite Conversation 174 (Chiswick Press ed., 1892). If and when future courts are confronted with campaign or other statements proffered as evidence of governmental purpose, those courts must similarly determine, on a case-by-case basis, whether such statements are probative evidence of governmental purpose. Our holding today neither limits nor expands their review.
Moreover, the court considered the by now familiar statements by spokespeople: advisor and former mayor Rudolph Guiliani on EO-1; Senior Policy Advisor Miller and White House Press Secretary Spicer on EO-2. The court further found that the government's argument that EO-2's primary purpose was national security rather than religious
is belied by evidence in the record that President Trump issued the First Executive Order without consulting the relevant national security agencies, J.A. 397, and that those agencies only offered a national security rationale after EO-1 was enjoined. Furthermore, internal reports from DHS contradict this national security rationale, with one report stating that “most foreign-born, US-based violent extremists likely radicalized several years after their entry to the United States, limiting the ability of screening and vetting officials to prevent their entry because of national security concerns.” According to former National Security Officials, Section 2(c) serves “no legitimate national security purpose,” given that “not a single American has died in a terrorist attack on U.S. soil at the hands of citizens of these six nations in the last forty years” and that there is no evidence of any new security risks emanating from these countries. Corrected Brief for Former National Security Officials as Amici Curiae Supporting Appellees 5–8, ECF No. 126-1. Like the district court, we think this strong evidence that any national security justification for EO-2 was secondary to its primary religious purpose and was offered as more of a “litigating position” than as the actual purpose of EO-2. See McCreary, 545 U.S. at 871 (describing the government’s “new statements of purpose . . . as a litigating position” where they were offered to explain the third iteration of a previously enjoined religious display). And EO-2’s text does little to bolster any national security rationale: the only examples it provides of immigrants born abroad and convicted of terrorism-related crimes in the United States include two Iraqis—Iraq is not a designated country in EO-2—and a Somalian refugee who entered the United States as a child and was radicalized here as an adult. EO-2, § 1(h). The Government’s asserted national security purpose is therefore no more convincing as applied to EO-2 than it was to EO-1.
In short, the court found that EO-2 cannot be divorced from the cohesive narrative linking it to the animus that inspired it," and thus EO-2 "likely fails Lemon's purpose prong" and is unconstitutional under the Establishment Clause.
The court affirmed the preliminary injunction as appropriately nationwide, but did agree with the government that the injunction should not be issued "against the President himself." Thus, the injunction was lifted in that regard, although the court noted that while the President was not directly bound, the court assumes "it is substantially likely" that the President would abide by the the court's authoritative interpretation of section 2 of EO-2.
Recall that a Ninth Circuit panel is also considering the constitutionality of EO-2; it heard oral arguments on May 15 in Hawai'i v. Trump.
Wednesday, May 24, 2017
The Fourth Circuit ruled yesterday that a case challenging the NSA's upstream surveillance program can move forward. The ruling reverses a district court ruling that dismissed the case for lack of standing, citing Clapper v. Amnesty International. The Fourth Circuit distinguished Clapper, however, and let the case move forward.
In short, the two key differences in Clapper: Wikimedia has more communications with a larger, more comprehensive reach than the plaintiffs in Clapper; and the plaintiffs here learned (and pleaded) more about the nature of the program.
In so ruling, the court followed the Third Circuit's approach in a similar case last year, Schuchardt v. President of the United States.
The case involved two challenges to the upstream surveillance program under Section 702 of the FISA Amendments Act of 2008. (This program authorizes the government, subject to certain controls, to collect and search electronic communications between an overseas target and a person in the US.) In the first challenge, the "Wikimedia challenge," Wikimedia argued that given its size and amount of international communications, and given the nature of the upstream surveillance program, the NSA necessarily collected at least some of its Internet communications. In the second challenge, the "dragnet challenge," plaintiffs argued that the nature of the NSA program alone likely meant that the NSA in fact collects all Internet communications. (The plaintiffs in this case had more information about the nature of the program than the plaintiffs in the earlier Clapper case, so could plead a stronger argument.)
The court ruled that "Wikimedia has plausibly alleged that its communications travel all the roads that a communication can take, and that the NSA seizes all of the communications along at least one of those roads." Moreover, "because Wikimedia has self-censored its speech and sometimes forgone electronic communications in response to Upstream surveillance, it also has standing to sue for a violation of the First Amendment." As to Clapper: "Unlike in Clapper, where the plaintiffs based their theories of standing on prospective or threatened injury and actions taken in response thereto, Wikimedia pleaded an actual and ongoing injury [actual, not speculative, collection of at least some of Wikimedia's communications], which renders Clapper's certainly-impending analysis inapposite here.
But at the same time, the court ruled that the plaintiffs lacked standing to assert the dragnet challenge. In short, the court said that the plaintiffs could not "plausibly establish that the NSA is intercepting 'substantially all' text-based communications entering and leaving the United States." (In contrast, Wikimedia only had to show that the NSA is conducting upstream surveillance on a single backbone link on the Internet connections to the United States, which it did.)
Judge Davis concurred with the result as to the Wikimedia challenge, but dissented as to the dragnet challenge: "However, because I would find that the non-Wikimedia Plaintiffs also have standing, I respectfully dissent in part."
Monday, May 22, 2017
In its opinion in Cooper v. Harris, formerly McCrory v. Harris, the Court affirmed the findings of a three-judge District Court that North Carolina officials violated the Equal Protection Clause in the 2011 redistricting with regard to two districts: District 1 and District 12.
Recall that in Bethune-Hill v. Virginia State Board of Elections (argued the same day as Cooper v. Harris), the Court clarified the analysis for reviewing racial gerrymandering claims and remanded the matter back to the three judge District Court to determine 11 out of the 12 districts at issue.
Justice Elana Kagan, writing for majority in Cooper v. Harris, provides the analytic structure for assessing challenges to racial gerrymandering under the Equal Protection Clause:
- First, the plaintiff must prove that “race was the predominant factor motivating the legislature’s decision to place a significant number of voters within or without a particular district,” quoting Miller v. Johnson (1995). This means that the legislature "subordinated other factors," including geographic ones, partisan advantage, and "what have you" to racial considerations.
- Second, if racial considerations predominated over others, the design of the district must withstand strict scrutiny, requiring a compelling governmental interest achieved by narrowly tailored means.
- A recognized compelling governmental interest is compliance with the Voting Rights Act (VRA) is a compelling governmental interest. "This Court has long assumed that one compelling interest is complying with operative provisions of the Voting Rights Act of 1965."
- To satisfy the narrow-tailoring requirement, the state must show that it had “a strong basis in evidence” for concluding that the VRA required its action. "Or said otherwise, the State must establish that it had “good reasons” to think that it would transgress the Act if it did not draw race-based district lines," a standard which "gives States “breathing room” to adopt reasonable compliance measures that may prove, in perfect hindsight, not to have been needed."
The Court unanimously agrees that District 1 fails this standard. The racial intent in redistricting was clear. As to the means chosen, the Court rejected North Carolina's argument that it redesigned the district to comply with the VRA because in fact District 1 had historically been a "cross-over" district in which "members of the majority help a large enough minority to elect a candidate of its choice. In other words, there was no 'White Bloc' operating in District 1. The Court rejected North Carolina's argument that this could occur in the future, especially since the entire state was being redrawn. The Court notes that the officials seemed to believe - - - incorrectly - - - that they were required to draw a majority Black district, despite any evidence of "cross-over."
image: Appendix 1 to Court's opinion;
note District 1 in yellow and District 12 in orange.
The Court divided on the constitutionality of District 12, however. The only issue was whether or not the redistricting was racial; North Carolina did not argue it could satisfy strict scrutiny if race predominated. Writing for the Court, Justice Kagan, joined by Justices Thomas, Ginsburg, Breyer, and Sotomayor, affirmed the findings of the three judge district court that District 12 was redrawn with reference to race. North Carolina contended that the officials redrew the district only with reference to political affiliation (which would not violate the Equal Protection Clause), arguing that the goal was to "pack" District 12 with Democrats (and thereby render other districts more Republican). Justice Kagan noted that the determination of whether an act was racially-motivated or politically-motivated involved a "sensitive inquiry" and that racial identification is "highly correlated" with political affiliation. But for the majority, the District Court's finding of racial predominance must be affirmed:
The evidence offered at trial, including live witness testimony subject to credibility determinations, adequately supports the conclusion that race, not politics, accounted for the district’s reconfiguration. And no error of law infected that judgment: Contrary to North Carolina’s view,the District Court had no call to dismiss this challenge just because the plaintiffs did not proffer an alternative design for District 12 as circumstantial evidence of the legislature’s intent.
Writing the dissenting opinion, Justice Alito, joined by Chief Justice Roberts and Justice Kennedy (who authored Bethune-Hill), vigorously contested the finding of racial intent. Alito faults the majority as well as the District Court as being obtuse: "The majority’s analysis is like Hamlet without the prince." This bit of snark in the body of the dissent, earns a rebuke from the majority in a footnote to its statement that this district is back before the Court for the sixth time, criticizing the dissent for simply adopting North Carolina's version: "Imagine (to update the dissent’s theatrical reference) Inherit the Wind retold solely from the perspective of William Jennings Bryan, with nary a thought given to the competing viewpoint of Clarence Darrow." In a counter footnote, Alito defends the opinion from merely accepting North Carolina's explanation.
The alternative map argument is also a point of contention. For the majority, it is one way of demonstrating that the redistricting officials acting on the basis of race:
If you were really sorting by political behavior instead of skin color (so the argument goes) you would have done—or, at least, could just as well have done—this. Such would-have, could-have, and (to round out the set) should-have arguments are a familiar means of undermining a claim that an action was based on a permissible,rather than a prohibited, ground.
But, the majority emphasizes, such strategies are "hardly the only way." For the dissent, a passage from Easley v. Cromartie, (2001) (Cromartie II), involving essentially the same district, is determinative: plaintiffs must show that the officials could have achieved their political goals in a manner with more racial balance.
Interestingly, in his brief concurring opinion, Justice Thomas references Cromartie II, in which he dissented. Thomas contends that Cromartie II misapplied the "deferential standard for reviewing factual findings," an error which the present decision "does not repeat."
May 22, 2017 in Cases and Case Materials, Courts and Judging, Elections and Voting, Equal Protection, Fourteenth Amendment, Opinion Analysis, Race, Reconstruction Era Amendments, Supreme Court (US) | Permalink | Comments (0)
Wednesday, May 17, 2017
The D.C. Circuit ruled yesterday that Backpage.com's challenge to a subpoena issued by the Senate Permanent Subcommittee on Investigations was moot. The court dismissed Backpage.com's case and vacated earlier district court rulings.
The case arose when the Subcommittee sought to enforce its subpoena for Backpage.com documents to aid its investigation into the web-site's facilitation of sex trafficking. While the case worked its way between the district court and the D.C. Circuit, Backpage.com voluntarily provided the Subcommittee with a good many of the documents the Subcommittee sought (but withheld some other documents under claims of privilege). Before the D.C. Circuit could rule on Backpage.com's challenge to the subpoena, the Subcommittee wrapped up its investigation based on the released documents and issued its final report. The Subcommittee then moved to dismiss the case as moot.
In its ruling yesterday, the D.C. Circuit agreed with the Subcommittee. The court rejected Backpage.com's argument that the district court might still order some relief (for example, an order that the Subcommittee destroy or return the documents still in its possession), thus keeping the case alive, because "the separation of powers, including the Speech or Debate Clause," bars a court from ordering a congressional committee to release documents used in a lawful investigation. In particular, the court wrote that under circuit law "the Clause affords Congress a 'privilege to use materials in its possession without judicial interference,' even where unlawful acts facilitated their acquisition." (Unlawful acts did not facilitate their acquisition here; instead, Backpage.com provided them.) In short, once documents come into the hands of a committee, "the subsequent use of the documents by the committee staff in the course of official business is privileged legislative activity."
The court rejected Backpage.com's argument that the Subcommittee waived its privilege by voluntarily subjecting itself to the court's jurisdiction (when it filed to enforce the subpoena): "[w]hen Congress petitions the court in a subpoena enforcement action, Congress does not waive its immunity from court interference with its exercise of its constitutional powers."
The court also rejected Backpage.com's argument that the case was capable of repetition but evading review. The court said a repeat was simply too speculative.
The ruling doesn't leave future subjects of congressional subpoenas without a remedy. According to the court, such subjects should refuse to comply during the legal proceedings so that the courts can hear their objections on the merits.
In other words, Backpage.com's mistake was voluntarily releasing the documents in the first place.
The separation-of-powers part of the ruling stands in contrast to the Court's holding in Church of Scientology of California v. United States, a case that the D.C. Circuit distinguished. In Church of Scientology, the IRS filed a petition to enforce a summons against a state-court clerk for tape recordings related to the Church in district court, and the Church intervened to oppose. While the case was on appeal, the clerk released the tapes to the IRS, at while point the appellate court dismissed the case as moot. The Supreme Court reversed, however, explaining that the case remained alive because the district court could still issue relief to the Church--a "destroy or return" order.
The D.C. Circuit said that Church of Scientology was different, however, because "the separation of powers, including the Speech or Debate Clause," bars a court from ordering that same kind of relief against Congress.
Tuesday, May 16, 2017
The Supreme Court ruled yesterday that the federal scheme covering service-member retirement and disability pay preempts a state court divorce decree that granted the former spouse of a retired service-member a portion of his disability benefits.
The ruling in Howell v. Howell settles a split in the state courts.
The case involves the way that federal law provides for veterans' retirement and disability pay, and the way that state courts can divide that pay in a divorce. Under federal law, a qualified veteran receives taxable retirement pay. A qualified veteran can also receive nontaxable disability pay. But if a veteran opts to receive disability pay, the disability pay off-sets his or her retirement pay dollar for dollar, so that the total amount of pay remains the same. Still, most veterans who qualify for disability pay opt for disability pay, because it's not taxed.
Under the federal Uniformed Services Former Spouses' Protection Act of 1982, a state may treat a veteran's retirement pay as divisible property in a divorce. But the Act explicitly excludes disability pay from divisible retirement pay. The Supreme Court ruled in Mansell v. Mansell that a state court cannot divide disability pay in a divorce when the veteran received both retirement pay and disability pay before the divorce. (The Court held that the Act preempted a state court ruling to the contrary.) Howell tested whether the Act compelled this same result when a veteran opted for disability pay well after the divorce. (The difference matters, because the spouse in Howell would take a cut in total payments if the same rule applied when the veteran spouse opted for disability pay after the divorce.)
The unanimous Court (Justice Gorsuch recused) held that the same rule applied, whether the veteran spouse opted for disability pay before the divorce or after. The Court said that Mansell dictated the result, and that the different timing didn't matter: "the temporal difference highlights only that John's military retirement pay at the time it came to Sandra was subject to later reduction (should John exercise a waiver to receive disability benefits to which he is entitled)."
The Court also rejected the theory that the state court could "reimburse" or "indemnify" the spouse, rather than outright dividing the disability pay: "The difference is semantic and nothing more. . . . Regardless of their form, such reimbursement and indemnification orders displace the federal rule and stand as an obstacle to the accomplishment and execution of the purposes and objectives of Congress." (Justice Thomas concurred but wrote separately to disagree with this latter portion of the ruling--on "purposes and objectives" pre-emption. "As I have previously explained, '[t]hat framework is an illegitimate basis for finding the pre-emption of state law.'")
The Court recognized the "hardship" that this result may "work on divorcing spouses," and noted that state courts might take this into account when it calculates the need for spousal support.