Thursday, September 28, 2017
Check out Linda Greenhouse's take on the travel ban case at the NYT, the case's likely mootness, and what it all means. Here's a link to Robert Loeb's piece at Lawfare (cited by Greenhouse) on the "presumption of regularity"--the basis for the administration's argument that the Court should grant it deference, and not look behind the stated purposes of the travel ban to the President's and surrogates' anti-Muslim statements.
Wednesday, September 27, 2017
The Senate Judiciary Committee heard testimony yesterday on two bi-partisan measures to protect the Special Counsel from arbitrary firing. The bills, and the hearing, are a push-back against earlier White House murmurings and more recent public concerns that President Trump may try to fire Special Counsel Robert Mueller.
The bills, S. 1735 (sponsored by Senators Graham, Booker, Whitehouse, and Blumenthal) and S. 1741 (sponsored by Senators Tillis and Coons), would both codify the heightened "for cause" firing standard already in the DOJ regs. They'd also provide independent judicial oversight of any termination.
But they differ in the way they'd provide judicial oversight. The Graham-Booker bill would require the AG to file a case before a three-judge district court before firing the Special Counsel; in contrast, the Tillis-Coons bill would allow the Special Counsel to challenge the termination before a three-judge district court after the firing.
That distinction may make all the constitutional difference between the two approaches. That's because there may be Article III problems (standing, and possibly the bar on advisory opinions) with a court hearing a pre-termination challenge, as in Graham-Booker (as Prof. Steve Vladeck's suggested before the Committee). Moreover, adding a second-level determination of "for cause" prior to firing (as in Graham-Booker), but not after firing (as in Tillis-Coons), may run afoul of the prohibition on double-for-cause provisions in Free Enterprise Fund v. PCAOB (as Prof. John Duffy argued).
But more generally, the witnesses, with one exception, seemed to agree that there were no problems codifying the for-cause firing standard, so long as Morrison v. Olson remains good law. (Prof. Eric Posner argued that both bills are well within Morrison; Vladeck and Duffy more or less agreed.)
Only Prof. Akhil Reed Amar argued that Morrison is (at least de facto) no longer good law (that Justice Scalia has been vindicated), that the bills violate the separation of powers, and that, in any event, it'd be "unwise" to pass either law given the likelihood of a veto and the resulting blowback from the White House.
In its opinion in Doe v. University of Cincinnati, a Sixth Circuit panel affirmed a district judge's grant of a preliminary injunction against the university suspension of student John Doe. The university suspended graduate student John Doe after a finding of a sexual offense in a Title IX hearing at which the complaintant did not appear.
Using the well-established criteria for procedural due process claims, Judge Richard Griffin's relatively succinct opinion found that the risk of erroneous deprivation of Doe's acknowledged interest was great. Doe claimed that his inability to cross-examine the complaintant in a context in which the basic issue was one of credibility - - - a choice of believing Doe's assertion that the sex was consensual and Jane Roe's complaint that it was not consensual - - - was a fundamental flaw. The court agreed, even though the university had no ability to compel Jane Roe's appearance. The court also found the time lapse troubling: the university waited a month after the complaint to interview Jane Roe, four months after that to notify John Doe, and four months after that to hold the hearing.
The court did consider the potential for "emotional trauma" to Jane Roe, but concluded that when there is an issue of credibility, there must be a mutual test of credibility as part of the process "where the stakes are this high." The court did seek to qualify its rationale as not requiring John Doe be allowed to cross-examine Jane Roe during the hearing:
However, we emphasize that UC’s obligations here are narrow: it must provide a means for the ARC [the university’s Administrative Review Committee] panel to evaluate an alleged victim’s credibility, not for the accused to physically confront his accuser.
The University has procedures in place to accommodate this requirement. A month before the ARC hearing, Mitchell informed Doe and Roe that they could “participate via Skype . . . if they could not attend the hearing.” Doe did not object to Roe’s participation by Skype, and he does not object to this practice on appeal. To the contrary, the record suggests that he or one or more of the ARC panelists in fact appeared at the hearing via Skype. What matters for credibility purposes is the ARC panel’s ability to assess the demeanor of both the accused and his accuser. Indisputably, demeanor can be assessed by the trier of fact without physical presence, especially when facilitated by modern technology.
The court's opinion added that it was "sensitive" to the "competing concerns" of the case: the goal of reducing sexual assault is more than laudable, it is necessary; but the elimination of "basic procedural protections" may not be a "fair price" to achieve that goal.
These "competing concerns" are likewise the subject of debate as controversial Secretary of Education Betsy De Vos has acted to rescind the previous guidelines for educational institutions dealing with sexual assault based in part on the perceived "deprivation of rights" for accused students. While the new memo does not mandate cross-examination (unless it is provided to one party and then must be provided to both), no doubt the Sixth Circuit's opinion in Doe v. University of Cincinnati will be used to bolster Secretary de Vos's decision.
Tuesday, September 26, 2017
The American Constitution Society is calling for papers for a workshop on public law on January 4, 2018, at the 2018 AALS Annual Meeting in San Diego.
This is an excellent opportunity. The ACS Board of Academic Advisors will select 10 papers, and each author will have a chance to discuss her or his work with two experienced scholars.
The deadline is October 18, 2017; submissions should be works that have not been published as of January 1, 2018. Tenure-track and tenured faculty, or faculty with similar status, who have been full-time law teachers for 10 years or less as of December 31, 2017, are eligible.
Inquiries? Send to email@example.com.
The Seventh Circuit ruled on Friday that Illinois's requirement that a new political party field candidates for all offices on the ballot in the relevant political subdivision violated the First Amendment. (H/t Aggie Baumert.) The ruling strikes the full-slate requirement for new parties, but leaves in place a signature requirement for them.
The case tested Illinois's requirement that a "new" political party field candidates for every office on the ballot in the political subdivision where it wishes to compete. (A "new" political party is one that's not (yet) "established" based on performance in prior elections.) New parties also have to obtain a minimum number of signatures on nominating petitions.
These rules meant that when the Libertarian Party sought to put up a candidate for Kane County auditor, it had to get the signatures, and it also had to put up candidates for circuit clerk, recorder, prosecutor, coroner, board chairman, and school superintendent.
The Party sued, arguing that the full-slate requirement (but not the signature requirement) violated the First Amendment.
The Seventh Circuit agreed. The court ruled first that the Party had standing, even though it didn't get enough signatures (and therefore couldn't get on the ballot even if it did field a full slate). The court explained that the Party's injury wasn't not getting on the ballot; it was the burden on its free association:
It isn't simply that the Party couldn't run its candidate for county auditor in the 2012 election. It's that Illinois law imposes a burdensome condition on the Party's exercise of its right of political association; that is, the Party's injury is its inability to access the ballot unless it fields a full slate of candidates. That requirement persists and stands as an ongoing obstacle to ballot access.
The court went on to rule that the full-slate requirement "severely burdens the First Amendment rights of minor parties, their members, and voters," thus triggering strict scrutiny. And under strict scrutiny, the court said that the full-slate requirement simply didn't meet the state's interests promoting political stability, avoiding overcrowded ballots, and preventing voter confusion--and, indeed, cut against those interests:
By creating unwanted candidacies, the requirement increases political instability, ballot overcrowding, and voter confusion. . . . Whatever its aim, the requirement forces a minor party to field unserious candidates as a condition of nominating a truly committed candidate. . . .
In reality, then, the full-slate requirement does not ensure that only parties with a modicum of support reach the ballot. Instead it ensures that the only minor parties on the ballot are those that have strong public support or are willing and able to field enough frivolous "candidates" to comply with the law.
Monday, September 25, 2017
The Supreme Court today took the travel ban arguments off its oral argument calendar. The Court also ordered the parties to submit short briefs on whether the case is moot in light of President Trump's new proclamation on travel restrictions.
Friday, September 22, 2017
Judge Jerome B. Simandle (D.N.J.) today declined to halt New Jersey's bail-reform law. The law provides for alternative, non-monetary pretrial release options in order to give poor defendants (who often can't afford bail) a shot at pretrial release while still serving other criminal justice interests. The plaintiffs in the case argued that the law violated the Eighth Amendment, due process, and the Fourth Amendment.
The preliminary ruling, denying the plaintiffs' motion for a preliminary injunction, leaves the law in place, for now. But today's order isn't a final ruling on the merits.
The plaintiffs lawyered-up big time (Paul Clement appeared pro hac), suggesting that this is just the first step in their aggressive challenge to New Jersey's law. One reason for the attention to the case: Taking money out of the bail system also takes away a stream of revenue from corporations like plaintiff Lexington National Insurance Corporation. As more jurisdictions look to non-monetary bail options to avoid keeping poor, nonviolent defendants behind bars pending trial, bail providers stand to lose even more.
The New Jersey bail-reform law sets up a five-stage, hierarchical process for courts to follow in setting bail. It allows for pretrial release of certain defendants with non-monetary conditions, like remaining in the custody of a particular person, reporting to a designated law enforcement agency, home supervision with a monitoring device, and the like. In order to help navigate the process for any particular defendant, the court gets risk-assessment recommendations from a Pretrial Services Program. According to the court, in less than a year under this system, "[t]his reform has shown great success in placing persons into pretrial release who would previously have been held in jail for failure to meet monetary bail and because pretrial monitoring options were largely unavailable. As a result, many fewer defendants are being detained in jail as they await trial."
Using this system, a New Jersey court ordered plaintiff Brittan Holland released, but subject to home confinement (except for work), with an ankle bracelet for monitoring, weekly reporting, and no contact with the victim. (Holland was charged with second-degree aggravated assault and agreed to these conditions on his release in exchange for the state withdrawing its application for detention.)
Holland argued that the system deprived him of a right to have monetary bail considered as a primary condition of release, and that as a result his conditions amount to an undue restraint on his liberty. (He said that the conditions "severely restricted [his] liberty, disrupted [his] family life, made [him] concerned about [his] job security, and made [him] feel that [his] life is up in the air.") Plaintiff Lexington, a national underwriter of bail bonds, joined, arguing that the system would cause it to lose money.
The court ruled first that Holland had standing, but that Lexington probably did not. Here's how the court explained Holland's standing:
Holland claims that his injury is not simply the restriction on his liberty, but rather the imposition of that restriction after a hearing that violated his rights under the Fourth, Eighth, and Fourteenth Amendments. He claims that such injury will be sufficiently redressed should the Court order that a hearing respecting those constitutional rights (as he understands them) be held, regardless of the ultimate outcome of such a hearing. Should the Court order such a hearing to be held, the relief then would not be speculative. He claims that he was injured by the holding of a hearing that did not afford him his constitutional rights, including the alleged right to have monetary bail considered as a primary condition of release pending trial, and that ordering a new hearing that does afford him those rights will redress that injury.
As to Lexington, the court said that it failed to establish standing for itself (because it could only assert harms of a third party, someone like Holland), and that it likely failed to establish third-party standing (because criminal defendants don't face any obstacles in bringing their own claims--obviously, in light of Holland's participation in the suit). (The state also argued that Lexington lacked prudential standing, because its injury doesn't fall within the zone of interests of the statute. The court said that the state could raise that argument later, as part of a failure-to-state-a-claim argument.)
Next, the court said that Younger abstention was inappropriate, because "[p]laintiffs, here, do not seek to enjoin the state prosecution against Holland; instead, they challenge the procedure by which the conditions of pre-trial release during that prosecution was decided and seek an injunction ordering a different procedure."
As to the merits, the court held that the plaintiffs were unlikely to success on all claims. The court said that the Eighth Amendment doesn't guarantee monetary bail, and that Holland waived his right to it, anyway. It said that Holland received procedural due process, and that he had no right to monetary bail under substantive due process. And it said that conditions were reasonable under the Fourth Amendment, and, again, that Holland agreed to them, anyway.
September 22, 2017 in Cases and Case Materials, Courts and Judging, Due Process (Substantive), Fourteenth Amendment, Fourth Amendment, Fundamental Rights, Jurisdiction of Federal Courts, News, Opinion Analysis, Procedural Due Process, Standing | Permalink | Comments (1)
Thursday, September 21, 2017
The Seventh Circuit upheld Chicago's "puppy mill" ordinance, which limits the sources from which city-licensed pet stores may obtain certain pets for resale, against a challenge under the Illinois Constitution's home-rule provision and the federal dormant Commerce Clause. The ruling leaves the ordinance in place.
Chicago's ordinance says that pet retailers in the city "may offer for sale only those dogs, cats, or rabbits" obtained from an animal control or care center, pound, or kennel operated by local, state, or federal government or "a humane society or rescue organization." The ordinance means that pet stores can't get their animals from large, mill-style breeders. Chicago adopted the law in order to protect against the "economic and emotional burdens for pet owners and [the] financial costs on the City as owners abandon their physically or emotionally challenged pets or surrender them to the [city shelter]."
Two Chicago pet stores and a Missouri dog breeder sued, arguing that the ordinance exceeded Chicago's authority under the Illinois Constitution's home-rule provision and violated the federal dormant Commerce Clause.
The Seventh Circuit disagreed. As to the home-rule argument, the court said that the Illinois Constitution permits Chicago to regulate in an area, concurrently with the state, so long as the General Assembly doesn't "specifically limit" it or "specifically declare the State's exercise to be exclusive." Because state law doesn't restrict, but actually preserves, municipal power to regulate animal care and welfare, the court said that Chicago's ordinance doesn't exceed its home-rule authority.
As to the dormant Commerce Clause, the court said that it didn't even apply, because Chicago's ordinance doesn't discriminate against interstate commerce. The court ruled that circuit law said that a state or local law that doesn't discriminate on its face or in effect doesn't even implicate the dormant Commerce Clause. "No disparate treatment, no disparate impact, no problem under the dormant commerce clause." The court therefore declined to apply Pike balancing, and ruled that the ordinance easily satisfied the default rationality review.
Judge Hamilton dissented in part, arguing that the court should have applied Pike balancing, because Dep't of Revenue of Kentucky v. Davis and United Haulers Ass'n v. Oneida-Herkimer Solid Waste clarified that "even nondiscriminatory burdens on commerce" are subject to Pike balancing and "may be struck down on a showing that those burdens clearly outweigh the benefits of a state or local practice." Judge Hamilton also argued that the majority applied an overly rigid pleading standard by not crediting the plaintiffs' allegations in the complaint that Chicago's ordinance would disparately impact out-of-staters.
Wednesday, September 20, 2017
Ninth Circuit Finds San Francisco's Soda-Warning Ordinance Subject to Injunction Under First Amendment
The Ninth Circuit's opinion in American Beverage Association v. City and County of San Francisco, reversing the district judge, found that San Francisco's ordinance requiring a warning about the health effects of sugary drinks likely violated the First Amendment and should be enjoined.
The ordinance required advertisements for sugar-sweetened beverages (SSB) to include a statement:
WARNING: Drinking beverages with added sugar(s) contributes to obesity, diabetes, and tooth decay. This is a message from the City and County of San Francisco.
The ordinance not only defined SSBs, but also required that the warning "occupy 20 percent of the advertisement and be set off with a rectangular border."
The Ninth Circuit panel's opinion, authored by Judge Ikuta, applied the well-known Zauderer v. Office of Disciplinary Counsel of Supreme Court of Ohio (1985) First Amendment standard for disclosures in the context of commercial speech, joining a previous Ninth Circuit panel regarding Berkeley's cell-phone warnings as well as sister-circuits in applying Zauderer beyond the context of preventing consumer deception.
Judge Ikuta articulated the Zauderer factors as requiring that the compelled disclosure be factual and non-controversial, that it not be “unjustified or unduly burdensome” so that it chills protected commercial speech, and that there is a substantial government interest to which the mandated disclosure is reasonably related. Applying the factors, Judge Ikuta's opinion concluded that the mandated disclosure failed both the "factual and noncontroversial" factor and the not unduly burdensome factor.
Regarding the noncontroversial factor, Judge Ikuta reasoned that it was not so much that the warning was untrue as to the drinks defined as SSB, mostly sodas, but that it did not extend to "other products with equal or greater amounts of added sugars and calories."
By focusing on a single product, the warning conveys the message that sugar-sweetened beverages are less healthy than other sources of added sugars and calories and are more likely to contribute to obesity, diabetes, and tooth decay than other foods.This message is deceptive in light of the current state of research on this issue. According to the FDA, “added sugars, including sugar-sweetened beverages, are no more likely to cause weight gain in adults than any other source of energy.” The American Dental Association has similarly cautioned against the “growing popularity of singling-out sugar-sweetened beverages” because “ the evidence is not yet sufficient to single out any one food or beverage product as a key driver of dental caries.”
[citations omitted]. San Francisco sought to distinguish SSBs as unique because they are more likely to be over-consumed, but the opinion noted that the risk of over-consumption was not the risk addressed by the warning.
As to burdensomeness, Judge Ikuta concluded that the 20% requirement chilled the commercial speech. Judge Ikuta appended three examples, concluding that as "the sample advertisements show, the black box warning overwhelms other visual elements in the advertisement." While the advertisers could engage in counter-speech in the remaining 80% of the advertisement, this would "defeat the purpose of the advertisement, turning it into a vehicle for a debate about the health effects of sugar-sweetened beverages."
Having found that the challengers were likely to succeed on the First Amendment merits, the panel then found that the other factors for preliminary injunction weighed in favor of enjoining the ordinance.
Thus, like the New York City attempt to regulate super-size sodas, the San Francisco ordinance makes another unsuccessful attempt to require warnings on products in an effort to change health habits.
In its opinion in McLaughlin v. McLaughlin (Jones), the Arizona Supreme Court interpreted the United States Constitution to require that the statutory presumption of parentage applies to a woman in a same-sex marriage in the same way as would to a man in a different-sex marriage.
The Arizona Supreme Court relied on the United States Supreme Court's 2015 decision in Obergefell v. Hodges as well as the Court's per curiam opinion a few months ago in Pavan v. Smith, reversing the Arkansas Supreme Court's divided decision to deny a same-sex parent's name be listed on the child's birth certificate. The Arizona Supreme Court in McLaughlin, echoing Pavan, quoted Obergefell as constitutionally requiring same-sex married couples be afforded the “constellation of benefits the States have linked to marriage.”
The majority opinion of the Arizona Supreme Court, authored by Chief Justice Scott Bales, rejected the interpretation of Obergefell advanced by Kimberly McLaughlin, the biological mother, that "Obergefell does not require extending statutory benefits linked to marriage to include same-sex couples; rather, it only invalidates laws prohibiting same-sex marriage." Instead, Chief Justice Bales wrote that that such a "constricted reading is precluded by Obergefell itself ad the Supreme Court's recent decision in Pavan v. Smith." Moreover, as in Pavan, the statute itself did not rest on biology but sought to sideline it. The marital presumption assigns paternity based on marriage to the birth mother, not biological relationship to the child. Thus, any differential treatment cannot be justified and the statute was unconstitutional as applied.
As a remedy, Judge Bales' opinion concluded that the extension of the presumption rather than striking the presumption was proper, relying on yet distinguishing the Court's recent decision in Sessions v. Morales-Santana. It was on this issue that one Justice dissented, contending that the court was rewriting the statute. Two other Justices wrote separately to concur on the remedy issue, noting that the majority must follow the United States Supreme Court and "circumstances require us to drive a remedial square peg into a statutory round hole," but "nothing in the majority opinion prevents the legislature from fashioning a broader or more suitable solution by amending or revoking" the statute.
Perhaps the Arizona legislature will see fit to abolish the marital presumption for all children?
September 20, 2017 in Courts and Judging, Due Process (Substantive), Equal Protection, Family, Fourteenth Amendment, Fundamental Rights, Opinion Analysis, Reproductive Rights, Supreme Court (US) | Permalink | Comments (0)
Tuesday, September 19, 2017
The Ninth Circuit today rejected a Second Amendment challenge by Seattle police officers to the city's use-of-force policy. The ruling means that the policy stays in place.
The case arose when Seattle agreed to adopt a use-of-force policy for its police officers as part of a settlement agreement with the U.S. government in a case alleging that Seattle police engaged in a pattern or practice of excessive use of force. The policy says that "[o]fficers shall only use objectively reasonable force, proportional to the threat or urgency of the situation, when necessary, to achieve a law-enforcement objective." It goes on to provide a set of factors that officers must consider to determine whether a use of force is objectively reasonable, necessary, and proportional to the threat, but only "[w]hen safe under the totality of the circumstances and time and circumstances permit[.]" The policy requires officers to use de-escalation tactics in order to reduce the need for force only "[w]hen safe and feasible under the totality of the circumstances."
Seattle officers sued, arguing that the policy violated the Second Amendment, due process (fundamental rights), and equal protection.
The Ninth Circuit disagreed. The court applied the familiar two-part Second Amendment analysis and concluded (1) that while the policy "burdens conduct protected by the Second Amendment," (2) it satisfies intermediate scrutiny.
As to the burden step, the court said that the policy "does not resemble any of the 'presumptively lawful' regulations recognized in Heller," and that "the parties have adduced no evidence that the [policy] imposes a restriction on conduct that falls outside the historical scope of the Second Amendment . . . ." As a result, the court held that the policy burdened Second Amendment conduct.
As to the scrutiny step, the court set the level of review at intermediate scrutiny, because the city "has a significant interest in regulating the use of department-issued firearms by its employees," and because the policy "does not impose a substantial burden on [the officers'] right to use a firearm for the purpose of lawful self-defense." The court noted that the government, in adopting the policy, was acting as "proprietor," and not "regulator," in that it was regulating its own officers' use of force. This might've put a thumb on the scale in favor of the regulation, but, if so, it's not clear how weighty a thumb, because the court nevertheless applied intermediate scrutiny (and not a lower level of scrutiny).
The court went on to say that the policy satisfies intermediate scrutiny, because it's reasonably related to the city's significant interests in public safety and officer safety.
The court also rejected the officers' due process and equal protection claims.
Sunday, September 17, 2017
The Ninth Circuit ruled on Friday that the federal Poultry Products Inspection Act did not preempt California's ban on force-feeding ducks and geese for foie gras production. The ruling means that California's ban stays on the books; this is definitely one for the birds.
In 2004, California joined a growing list of countries that ban force-feeding ducks and geese to produce foie gras. The California law doesn't ban foie gras itself, just the force-feeding method of production. Foie gras producers sued, arguing that California's ban was preempted by the federal Poultry Products Inspection Act.
The Ninth Circuit disagreed. The court said that the federal law didn't expressly preempt the California ban, because the federal law's prohibition on states from imposing "ingredient requirements" that are "in addition to, or different than" the PPIA or its regs applied to "the physical composition of poultry products," and not the way animals are raised or how they're fed (which the California ban covers). According to the court, California law
does not require that foie gras be made with different animals, organs, or physical components. Nor does it require that foie gras consist of a certain percentage of bird liver. It simply seeks to prohibit a feeding method that California deems cruel and inhumane. [The law] therefore addresses a subject entirely separate from any "ingredient requirement": how animals are treated long before they reach the slaughterhouse gates.
Moreover, the court said that the PPIA didn't field-preempt California law, because the PPIA doesn't occupy the field (and in fact allows for "extensive" state regulation). It also said that the PPIA didn't obstacle preempt California law, because California law doesn't interfere with the federal food-regulation scheme and its purposes.
Unless and until producers come up with a different way to make foie gras, this ruling will keep it out of California.
Saturday, September 16, 2017
Judge Harry D. Leinenweber (N.D. Ill.) yesterday enjoined two conditions nationwide, but declined to enjoin a third, that AG Sessions placed on a federal grant program to clamp down on sanctuary cities. The order came in the lawsuit that Chicago filed against Session.
The ruling is a partial victory for the City and partial victory for the government. It partially halts two key conditions that AG Sessions placed on Byrne Grant recipients, but upholds a third, requiring certification of compliance with Section 1373.
Recall that AG Sessions placed three conditions on a municipality's receipt of federal funds under the Byrne Memorial Justice Assistance Grant Program: (1) that a state law or practice is in place to honor a request by DHS to provide advance notice of any scheduled release date and time for a particular alien (the "notice" condition); (2) that a state law or practice permits federal agents to have access to any correctional facility to meet with aliens and interrogate them (the "access" condition); and (3) that a local government submit a certification of compliance with 8 U.S.C. Sec. 1373, the federal law prohibiting state and local laws and practices that restrict state and local officials from sending to, or receiving from, federal officials information regarding the citizenship or immigration status of any individual, and prohibiting officials from maintaining such information or exchanging it with federal officials. (the "certification" condition).
The conditions ran up against Chicago's "Welcoming Ordinance." That Ordinance prohibits any "agent or agency" from "request[ing] information about or otherwise investigat[ing] or assist[ing] in the investigation of the citizenship or immigration status of any person unless such inquiry or investigation is required by [state law], federal regulation, or court decision." It goes on to forbid any agent or agency from "disclos[ing] information regarding the citizenship or immigration status of any person."
So Chicago sued Sessions, arguing that all three conditions were unconstitutional and unlawful.
Judge Leinenweber agreed in part and disagreed in part. As to the notice and access conditions, the court said that Sessions lacked statutory authority and exceeded his power to implement these conditions. In particular, the court held that only Congress could impose these conditions, or authorize the AG to do so, and that the statutory scheme in place didn't do that. Because the court ruled on statutory grounds, it declined to rule on the constitutionality of those two provisions.
But in contrast to its ruling on the notice and access conditions, the court held that Chicago did not show a likelihood of success on the merits of its challenge to the certification condition. The court held that this condition was authorized by Congress under the Byrne Grant statute, which says that a recipient must certify that it's in compliance "with all provisions of this part and all other applicable Federal laws" (emphasis added). The court said that Section 1373 fell into that latter category, "all other applicable Federal laws."
Moreover, it held that the certification condition didn't violate the Spending Clause and the anti-commandeering principle. In particular, the court said that Section 1373 doesn't compel Chicago to do anything; instead, it merely forbids it from doing something. The court said that the anti-commandeering principle only prohibits the federal government from requiring states or state officials to act, not from prohibiting them from acting, so Section 1373 doesn't violate it.
Without a doubt, Section 1373 restricts the ability of localities to prohibit state or local officials from assisting a federal program, but it does not require officials to assist in the enforcement of a federal program. . . . Because no case has gone so far as to prohibit the federal government from restricting actions that directly frustrate federal law, the Court finds that Congress acts constitutionally when it determines that localities may not prevent local officers from voluntarily cooperating with a federal program or discipline them for doing so.
But the court went on to recognize that Section 1373 raises an unanswered constitutional question: Does the provision commandeer insofar as it prevents local governments from disciplining an employee for spending time assisting in the enforcement of federal immigration law? The court punted, leaving that novel question for appeal:
[B]y leaving it up to local officials whether to assist in enforcement of federal immigration priorities, the statute may effectively thwart policymakers' ability to extricate their state or municipality from involvement in a federal program. . . . Here, we follow binding Supreme Court precedent and the persuasive authority of the Second Circuit, neither of which elevates federalism to the degree urged by the City here. A decision to the contrary would require an expansion of the law that only a higher court could establish.
Friday, September 15, 2017
The American Constitution Society hosted its Supreme Court Preview yesterday at the National Press Club. C-Span coverage is here. The panel included Anil Kalhan, Claire Prestel, Dale Ho, Erin Murphy, and Marty Lederman. Kara Stein introduced the program; I moderated.
Monday, September 11, 2017
Recall that last week, fifteen states and the District of Columbia filed New York v. Trump challenging the rescission of DACA, the Deferred Action for Childhood Arrivals program, covering 800,000 people in the United States who are not citizens but who have been residents since childhood. The rescission was promised by President Trump, announced by Attorney General Jefferson Sessions, now in a Memorandum from the Department of Homeland Security, although some of the details of the rescission remain murky.
Today, several other states - - - California, Maine, Maryland, and Minnesota - - - filed a complaint in the Northern District of California, California v. Department of Homeland Security, also challenging the DACA rescission making similar but not identical arguments. In the California challenge, equal protection is the sixth of the six counts, with no mention of anti-Mexican animus in the allegations. Instead, the equal protection claim contends that "rescission of DACA violates fundamental conceptions of justice by depriving DACA grantees, as a class, of their substantial interests in pursuing a livelihood to support themselves and fu1ther their education."
However, like New York v. Trump, the California complaint includes a challenge based on the Fifth Amendment's Due Process Clause, contending in its first cause of action that:
Given the federal government's representations about the allowable uses of information provided by DACA applicants, Defendants' change in policy on when to allow the use of information contained in DACA applications and renewal requests for purposes of immigration enforcement, including identifying, apprehending, detaining, or deporting non- citizens, is fundamentally unfair.
This "informational use" due process claim is buttressed by the California complaint's fifth cause of action sounding in equitable estoppel, a claim not made in the New York complaint. Claims similar to the New York complaint include violations of the Administrative Procedure Act and the Regulatory Flexibility Act. Factual allegations supporting these causes of action include references to the President's tweets as advancing rationales for the rescission that are absent or contrary to the Homeland Security memorandum, thus making the rescission arbitrary and capricious.
Additionally, last week in a separate complaint in Regents of the University of California v. Department Homeland Security, also filed in the Northern District of California, another challenge to the DACA rescission was filed by named plaintiff, Janet Napolitano, now Chancellor of the University of California, but also former Secretary of the Department of Homeland Security. In the University of California (UC) complaint, there is no equal protection claim, and the due process claim is third of three claims for relief and sounds in procedural due process:
¶69. The University has constitutionally-protected interests in the multiple educational benefits that flow from a diverse student body. Thousands of DACA students have earned prized places as undergraduate and graduate students at the University of California through their record of high— even extraordinary—personal achievement in high school and college. In reliance on DACA, the University has chosen to make scarce enrollment space available to these students and to invest in them substantial time, financial aid, research dollars, housing benefits, and other resources, on the expectation that these students will complete their course of study and become productive members of the communities in which the University operates, and other communities throughout the nation. If these students leave the University before completing their education, UC will lose the benefits it derives from their contributions, as well as the value of the time and money it invested in these students with the expectation that they would be allowed to graduate and apply their talents in the United States job market.
¶70. UC students who are DACA recipients also have constitutionally-protected interests in their DACA status and the benefits that come from that status, including the ability to work, to pursue opportunities in higher education, to more readily obtain driver’s licenses and access lines of credit, to obtain jobs, and to access certain Social Security and Medicare benefits.
¶71. The Rescission and actions taken by Defendants to rescind DACA unlawfully deprive the University and its students of these and other constitutionally-protected interests without due process of law. Such deprivation occurred with no notice or opportunity to be heard.
The other two causes of action in the UC complaint are based on the Administrative Procedure Act, with the first claim for relief contending the rescission is "arbitrary and capricious" and the second cause of action objecting to lack of notice and comment. However, the "arbitrary and capricious" claim for relief does include a reference to the Fifth Amendment:"The Rescission and actions taken by Defendants to rescind DACA are arbitrary and capricious, an abuse of discretion, and not in accordance with law because, among other things, they are contrary to the constitutional protections of the Fifth Amendment."
It may be that even more constitutional and statutory challenges to DACA are forthcoming as protests against the rescission continue.
[image: DACA Rescission Protest at Trump Tower, NYC, September 2017, photo by via]
Friday, September 8, 2017
In a lengthy opinion in Petrello v. City of Manchester, United States District Judge Landya McCafferty found the City's efforts to control "panhandling" through its enforcement of a disorderly conduct statute and through an ordinance directed at panhandling both violated the First Amendment.
Ms. Petrello was arrested under the disorderly conduct statute although her panhandling was "passive" and she was not in the roadway. Any "disorder" was actually caused by a third party driving a Cadillac who stopped the car to hand something to Petrello, who did not step into the road.
The Cadillac then drove through the intersection, but the light turned red and the Jeep was unable to make it through the intersection. If the Cadillac had not stopped at the green light, then the Jeep would have made it through the intersection while the light was still green and would not have had to wait for the next green light.
Judge McCafferty found that the Manchester Police Department (MPD) policy was a sufficient basis for liability. The policy was clearly directed at enforcing the statute against even passive panhandling and under the First Amendment, she stated that the policy was content-neutral, because the discussions of the anti-handling policies were "not in terms of any message the panhandler is conveying, such as requests for donations." Nevertheless, she reasoned that "in the end," she "need not resolve the question of whether the MPD Policy is content based, because it does not survive scrutiny as a content-neutral regulation." Applying the doctrine of Ward v. Rock Against Racism (1989), Judge McCafferty found that while public safety and free flow of traffic are significant government interests, the policy burdens more speech than necessary. Essential to this conclusion was the fact that the statute was applied to Ms. Petrello who did not step into the street, and that her speech should not be curtailed by third party driving a Cadillac or traffic lights that turned red too quickly. Judge McCafferty issued an injunction and ruled this could proceed to trial on damages.
In its other attempt to curtail panhandling. the City of Manchester passed an ordinance providing:
“No person shall knowingly distribute any item to, receive any item from, or exchange any item with the occupant of any motor vehicle when the vehicle is located in the roadway."
Again, Judge McCafferty found the ordinance content-neutral and again that the ordinance violated the First Amendment. Again, Judge McCaffery found that while the government interests were valid, the Ordinance was not sufficiently tailored to those interests for four main reasons: (1) the Ordinance bans roadside exchanges that do not obstruct traffic or pose safety risks; (2) the Ordinance is geographically overinclusive because it applies citywide; (3) the Ordinance is underinclusive because it penalizes only pedestrians, not motorists; and (4) the City has less speech- restrictive means available to address its concerns. In reaching these conclusions, Judge McCafferty relied in part on the Ninth Circuit en banc decision in Comite de Jornaleros de Redondo Beach v. City of Redondo Beach (2011) regarding day labor solicitation.
The opinion also addresses Petrello's standing to challenge the ordinance since she was not charged under it, but only the disorderly conduct statute, finding that she satisfied Article III standing although the City argued she had no imminent injury. The opinion rejects Petrello's Fourth Amendment claim based on her original arrest and an equal protection challenge to the implementation of the statute.
The City could certainly appeal to the First Circuit, but it probably has little chance of success.
[image: William-Adolphe Bouguereau, Petites Mendiantes (1880) via]
Wednesday, September 6, 2017
In a Complaint filed today in the Eastern District of New York in New York v. Trump, fifteen states and the District of Columbia have challenged the rescission of DACA, the Deferred Action for Childhood Arrivals program, covering 800,000 people in the United States who are not citizens but who have been residents since childhood. The rescission was promised by President Trump, announced by Attorney General Jefferson Sessions, and is now in a Memorandum from the Department of Homeland Security, although some of the details of the rescission remain murky. The complaint describes the rescission as "animus-driven."
The first two causes of action of the five total causes of action in the 58 page Complaint allege constitutional infirmities.
The first cause of action is based on the Equal Protection component of the Due Process Clause of the Fifth Amendment, and alleges that the rescission targets individuals based on their national origin and is based, at least in part, by the desire to harm a particular group. Paragraphs 239-252 detail the statements by Trump, both as a candidate and as President, expressing anti-Mexican sentiments. Part of these allegations include the controversial pardon of former Maricopa County, Arizona Sheriff Joe Arpaio. As for the timing of the rescission, the complaint also contains allegations regarding Texas, alleging that a "demand that President Trump eliminate DACA is part of a history of intentional discrimination against Latinos/Hispanics by the State of Texas" (¶256) and then detailing federal court findings that Texas has been found liable for "engaging in unlawful discrimination based on race and/or national origin." Among the cases cited is the recent Perez v. Abbott concerning redistricting.
The second cause of action sounds in Due Process, arguing a breach of "fundamental fairness" relating to information use. Specifically, ¶278 avers:
Given the federal government’s representations about the allowable uses of information provided by DACA applicants, a refusal to prohibit the use of information contained in DACA applications and renewal requests for purposes of immigration enforcement, including identifying, apprehending, detaining, or deporting non-citizens, is fundamentally unfair.
Two other causes of action relate to the Administrative Procedure Act - - - arbitrary and capricious action and failure to follow notice and comment - - - while the final cause of action is based on the Regulatory Flexibility Act, requiring federal agencies to "analyze the impact of rules they promulgate on small entities and publish initial and final versions of those analyses for comment."
The extensive allegations in the complaint by individual states include statements regarding each state's harm if DACA were rescinded in an effort to establish each state's standing. In addition to New York, the plaintiffs are Massachusetts, Washington, Connecticut, Delaware, District of Columbia, Hawaii, Illinois, Iowa, New Mexico, North Carolina, Oregon, Pennsylvania, Rhode Island, Vermont, and Virginia. Generally, the allegations pertaining to each states detail the effect on their state colleges and universities, state companies, and state economies.
The complaint is a serious challenge to the DACA rescission and in some ways is similar to the ongoing state challenges to the so-called Muslim travel ban, another highly controversial Trump administration action still in litigation.
UPDATE: Additional complaints discussed here.
Sunday, September 3, 2017
In its unanimous panel opinion in D.T. v. Patton (and the Denver Department of Health and Human Services), the Tenth Circuit recognized a claim for substantive due process and rejected qualified immunity based on a social worker's removal of the adolescent child, D.T., from his mother and recommending to the court that D.T. be placed with his father, who sexually abused him.
The court distinguished the landmark case of DeShaney v. Winnebago County Department of Social Services (1989), in which the United States Supreme Court held, in somewhat similar circumstances, that state officials are not liable for private-violence under the Fourteenth Amendment. The court relied on the "danger-creation" exception to the DeShaney doctrine, which allows liability if “a state actor affirmatively acts to create, or increase a plaintiff’s vulnerability to, danger from private violence." The court cited the Tenth Circuit's 2001 decision in Currier v. Doran, noting that "all circuits" have carved out a similar exception (in addition to the special-relationship exception), although the United States Supreme Court has not ruled on such exceptions.
Writing for the majority, Judge Scott Matheson extensive opinion discussed both DeShaney and Currier, including the elements developed in Currier:
- the charged state entity and the charged individual actors created the danger or increased plaintiff’s vulnerability to the danger in some way;
- plaintiff was a member of a limited and specifically definable group;
- defendants’ conduct put plaintiff at substantial risk of serious, immediate, and proximate harm;
- the risk was obvious or known;
- defendants acted recklessly in conscious disregard of that risk; and
- such conduct, when viewed in total, is conscience shocking.
Judge Matheson's opinion then analyzed analyzed each of these. Of central importance was the fact that the social worker knew of the father's previous conviction of attempted sexual assault on a minor, his step-daughter, as well as the father's violation of probation for contacting her and his failure to fulfill his sex offender treatment with regard to that conviction, in addition to "other charged offenses including misdemeanor wrongs to minors and misdemeanor domestic violence." The social worker omitted these facts as well as her concerns about them from the court because of her supervisor's comments and her resultant fear she would be terminated from her employment if she shared these facts. Moreover, she failed to investigate D.T.'s situation once he was placed in his father's home, and recorded her visits to the home that did not actually occur.
On qualified immunity, the court found that Currier clearly established a right that she violated. The court rejected the social worker's arguments attempting to draw lines between her pre-placement and post-placement conduct. The court also rejected the social worker's claims to avoid responsibility by sharing it with her "team" or assigning it to her supervisor. The court found that she was the major actor and withheld facts from her team. And while her supervisor might also be liable,
Ms. Patton’s reasons for deleting parts of her initial report to the juvenile court that outlined her concerns about T.D.’s placement with Mr. Duerson (i.e., to avoid being fired) support that she knew of the danger posed to T.D. in Mr. Duerson’s home and that she consciously disregarded that risk.
The court thus affirmed the grant of summary judgment to D.T. by the district judge.
Concurring, Judge Mary Beck Briscoe, who has been on the Tenth Circuit since 1995, expressed her belief that Currier was wrongly decided in 2001 and conflicts with DeShaney. For Judge Briscoe,
As a general matter, I find it hard to conclude that a social worker can be “responsible for” the independent decision of a judge who ultimately orders a change of custody. But, even if we assume such responsibility exists, we cannot transform omissions or failures to act into affirmative conduct merely by considering them “in the general context of” a custody recommendation. The only affirmative act that could be found in Currier is the recommendation itself, which, in my view is no different from the affirmative recommendation in DeShaney that Joshua be returned to his father’s custody. . . . This makes the state the permanent guarantor of a child's safety.
Yet the United States Supreme Court failed to grant certiorari in Currier and there is little here to make it likely that a petition for certiorari would not have the same result.
[image "Young Boy Singing" circa 1650 via]
Thursday, August 31, 2017
Judge Orlando Garcia (W.D. Tx.) yesterday issued a preliminary injunction, in City of El Cenizo v. Texas, the case testing the constitutionality of Texas's anti-sanctuary cities law. The ruling temporarily halts key portions of the law; it's a victory for the plaintiffs.
But it's also preliminary--and so goes to the plaintiffs' likelihood of success on the merits, and not the merits themselves--and is sure to be appealed.
In short, the ruling temporarily halts the provisions prohibiting local governments from preventing officers from assisting or cooperating with federal authorities, "endorsing" sanctuary policies, and adopting or enforcing policies that "materially limit" enforcement of immigration laws, and a provision requiring law enforcement agencies to "comply with, honor, and fulfill" any detainer request by ICE. Other provisions of the law remain effective.
Here's a more complete run-down:
Prohibition on Preventing Communication
Section 752.053(b) prohibits local departments and local entities from preventing their employees from obtaining certain information about the immigration status of a detainee, maintaining that information, and sharing it with federal and state authorities. In particular, the provision prohibits local governments from preventing their employees from:
(1) Inquiring into the immigration status of a person under a lawful detention or under arrest.
(2) With respect to information relating to the immigration status, lawful, or unlawful, of any person under a lawful detention or arrest, including information regarding the person's place of birth:
a. Sending the information to or requesting or receiving the information from [USCIS], [ICE], or another relevant federal agency;
b. Maintaining the information; or
c. Exchanging the information with another local entity or campus police department or a federal or state governmental entity.
(3) Assisting or cooperating with a federal immigration officer as reasonable or necessary, including providing enforcement assistance.
(4) Permitting a federal immigration officer to enter and conduct immigration enforcement activities.
The court said that the inquiry provision under (b)(1) and the information-sharing provision under (b)(2) were not preempted under the Immigration and Naturalization Act (but the court emphasized that the inquiry under (b)(1) could take place only during lawful detention or arrest).
But on the other hand, the court held that the enforcement-assistance-provision in (b)(3) was preempted (field and conflict), because federal law provides for "exacting requirements" for state and local officers to perform the functions of immigration officials--requirements that the state cannot circumvent through a law like (b)(3).
Section 752.053 says that a local entity (including an officer or employee of a division) or campus police department may not "adopt, enforce, or endorse a policy under which the entity or department prohibits or materially limits the enforcement of immigration laws . . . ." A separate section provides for enforcement, including civil penalties and removal from office upon a violation, which could be shown "with evidence, including evidence of a statement of a public officer."
The court said that this provision violated free speech. The court held that "endorse" was unconstitutionally overbroad and vague, and that the provision constituted illegal viewpoint discrimination (because it banned speech on one side of the issue, but not the other).
Prohibitions on Local Pattern or Practice Limiting Enforcement
Other sections of SB 4 prohibit localities from adopting a "pattern or practice" that "materially limit[s]" the enforcement of immigration laws, or that "materially limit[s]" officers from "assisting or cooperating" with a federal immigration officer "as reasonable or necessary . . . ."
The court said that "materially limit" is unconstitutionally vague on its face, even if other portions of the provisions were not, including the enumerated list of specifically prohibited activities in Section 752.053(b), discussed above.
Detainer Requests and Detention
Yet other sections, and some in Section (b), above, require local entities to fulfill all ICE detainer requests, and, as described above, prohibit local governments from preventing officers from inquiring as to detainees' immigration status.
The court said that ICE-detainer provisions violated the Fourth Amendment, because they "mandate that local officials effect seizures requested by ICE [without suspicion of a crime] while prohibiting those officials from making an independent, particularized assessment of whether probable cause of a crime exists to support that seizure in every case . . . ."
But as to the prohibition on preventing officers from inquiring into a detainee's immigration status, the court ruled that "it is possible to construe [this] to avoid violating the Fourth Amendment," and therefore that the plaintiffs failed to show that they were likely to succeed on the merits.
Wednesday, August 30, 2017
The D.C. Circuit ruled yesterday that Libertarian and Green Party candidates in the 2012 presidential election lacked standing to challenge their exclusion from presidential debates under antitrust laws and the First Amendment. The ruling denies the candidates monetary damages and declaratory relief and ends their case.
The case arose when Libertarian Party candidates Gary Johnson and James Gray and Green Party Candidates Jill Stein and Cheri Honkala failed to meet the threshold 15% support to participate in the 2012 national debates. They sued the Commission on Presidential Debates and the Obama and Romney campaigns, which set the 15% threshold, for violations of antitrust laws and the First Amendment.
The court ruled that the plaintiffs lacked statutory standing to bring their antitrust claim. It wrote that "antitrust standing requires a plaintiff to show an actual or threatened injury 'of the type the antitrust laws were intended to prevent,'" but that the plaintiffs "define[d] their injuries as millions of dollars in free media, campaign donations, and federal matching funds--injuries to them as individual candidates in a political contest for votes." This wasn't the kind of injury to "commercial competition" contemplated by the Sherman Antitrust Act, so the plaintiffs lacked antitrust standing.
Having ruled that the plaintiffs lacked antitrust standing, the court declined to say whether they also lacked Article III standing. This was partly in order to avoid a constitutional question--whether a court ruling in favor of the plaintiffs would infringe the Commission's First Amendment rights. As the court explained, quoting Perot v. Federal Election Commission (D.C. Circuit): "[I]f this [C]ourt were to enjoin the [Commission] from staging the debates or from choosing debate participants, there would be a substantial argument that the [C]ourt would itself violate the [Commission's] First Amendment rights."
As to the First Amendment claim, the court merely said that "[n]one of [the plaintiffs'] allegations articulate a clear legal claim, let alone identify a cognizable injury. To make matters worse, the Complaint omits entirely any allegation of government action, focusing entirely on the actions of the nonprofit Defendants."
Judge Pillard concurred in the judgment but wrote separately to argue that the court should have considered Article III standing, should have ruled in favor of the plaintiffs on that point, and should have dismissed the complaint on the merits.