Thursday, August 2, 2018
In an op-ed in the Los Angeles Times Yale Law Professors David Singh Grewal, Amy Kapczynski and Issa Kohler-Hausmann argue that there is no liberal "case for Kavanaugh," the President's nominee for Supreme Court Justice.
Trump’s nominations for the high court will have grave, long-lasting effects on the nation. Let the debate over Kavanaugh’s confirmation focus on the issues, not on the pedigree or manners of a judge who, as a justice, will almost surely work to undermine decades of settled judicial precedent in a way no liberal should be willing to condone.
Moreover, they speculate that liberal voices supporting the nominee may simply be currying favor:
Perhaps liberals praise Kavanaugh in order to gain favor with him. If confirmed, he will be in a position of great power in the legal world for decades to come, able to influence whose views are cited in judicial opinions and whose clerkship candidates are hired.
Meanwhile, it was reported that 74 protesters objecting to the nominee were arrested at the Hart Senate Office Building for crowding the halls.
The Sixth Circuit ruled this week in Jones Brothers, Inc. v. Sec'y of Labor that administrative law judges in the Mine Safety and Health Review Commission are "inferior officers" and were invalidly appointed under the Appointments Clause.
The very short ruling (on the merits) is a straight-line application of Lucia.
The case arose when the Mine Safety and Health Administration imposed a civil penalty on Jones Brothers for failing to comply with agency safety requirements. A Commission ALJ upheld the penalty, and the Commission itself affirmed.
The problem: The ALJ was appointed by the Commission's Chief ALJ, and not by the "department head" (the Commission itself).
The Sixth Circuit ruled that Mine Commission ALJs operated almost exactly like the SEC ALJs at issue in Lucia, and so were "inferior officers" under the Appointments Clause:
The Commission's administrative law judges are likewise established by statute . . . and exercise significant authority commensurate with their SEC counterparts. Like SEC administrative law judges, they preside over trial-like hearings. In that role, they shape the administrative record by taking testimony, regulating document production and depositions, ruling on the admissibility of evidence, receiving evidence, ruling on dispositive and procedural motions, and issuing subpoenas. Indeed, they exercise "nearly all the tools of federal trial judges."
And like SEC administrative law judges, they have the authority to issue initial decisions assigning liability and imposing sanctions. After 40 days, those decisions become final decisions of the Mine Commission unless the Commission decides to review them. But such review is available at "the sound discretion of the Commission," not as a "matter of right." This process is nearly identical to the SEC's review process.
The court said that Commission ALJs, like SEC ALJs, are therefore "inferior officers." And as "inferior officers," they have to be appointed by the President, a court, or a head of department. But they weren't: they were appointed by the Commission's Chief ALJ. So they're unconstitutional.
The court recognized that the Commission ratified the appointment of every ALJ. That works fine going forward, but for this case, the court, like the Supreme Court in Lucia, ordered that Jones Brothers get a new ALJ hearing before a validly appointed ALJ who is not the original ALJ.
The court spilled quite a bit of ink determining whether Jones Brothers forfeited the constitutional argument by not raising at the administrative stage. The court said that Jones Brothers did forfeit it, but that the forfeiture was excusable here.
Check out Lisa Blatt's piece at Politico, I'm a Liberal Feminist Lawyer. Here's Why Democrats Should Support Judge Kavanaugh. Blatt says that "[w]hat happened to Merrick Garland was a disgrace." Still,
unless the Democrats want to stand on the principle of an eye-for-an eye--and I don't think they should--folks should stop pretending that Kavanaugh or his record is the issue. He is supremely qualified. Although this fact is distressing, Republicans control both the White House and Senate. In comparable circumstances, when President Barack Obama was in office, our party appointed two Justices to the Supreme Court.
Wednesday, August 1, 2018
The Ninth Circuit struck another blow today against the administration's anti-sanctuary cities policy, ruling in San Francisco v. Trump that the President can't unilaterally withhold federal grants from sanctuary jurisdictions without Congress's say-so.
The ruling is just the latest in a line of similar rulings, and aligns broadly with the Seventh Circuit's ruling in the spring. This ruling is just a little bit different, however, in that it focuses principally on President Trump's original and sweeping Executive Order (and not AG Sessions's interpretive memo). The court rejects the government's attempt to narrow the test of the EO by focusing instead on AG Sessions's memo as the actual government policy. It said that the memo doesn't align with the EO (and is therefore itself ultra vires), and that in any event it's only a post-hoc justification to get the EO to pass muster in the courts.
While the ruling is an outright win for San Francisco and Santa Clara County, the court threw a bone to the administration by vacating the district court's nationwide injunction and remanding the case for reconsideration and further findings on that issue.
The facts--or at least their general outline--is all too familiar by now: In an effort to clamp down on sanctuary jurisdictions, the President ordered that sanctuary jurisdictions come into line with 8 U.S.C. Sec. 1373, which prohibits state and local jurisdictions from restricting their officers from communicating with federal immigration officials. (Other cases have also involved the "notice" and "access" conditions that AG Sessions purported to put on receipt of a certain federal grant in his memo. Those conditions required jurisdictions to provide notice to federal immigration enforcement officials of any detention, and access to state and local facilities for federal immigration enforcement. This ruling didn't deal with those, because it focused on the EO itself.)
The court simply held that under the separation of powers and Congress's Article I, Section 8, power of the purse, it's for Congress, not the Executive, to put conditions on federal spending. The court said that "because Congress has the exclusive power to spend and has not delegated authority to the Executive to condition new grants on compliance with Section 1373, the President's 'power is at its lowest ebb,'" under Justice Jackson's Youngstown framework. And at the lowest ebb, "[b]ecause the Executive Order directs Executive Branch administrative agencies to withhold funding that Congress has not tied to compliance with Section 1373, there is no reasonable argument that the President has not exceeded his authority." In sum:
Absent congressional authorization, the Administration may not redistribute or withhold properly appropriated funds in order to effectuate its own policy goals. Because Congress did not authorize withholding of funds, the Executive Order violates the constitutional principle of the Separation of Powers.
The court flatly rejected the administration's (pretty incredible) argument that its move to condition funds "is all bluster and no bite, representing a perfectly legitimate use of the presidential 'bully pulpit,' without any real meaning . . . .":
[E]ven if we ignore the statements made by and on behalf of the Administration outside the context of this litigation, the Administration's interpretation of the Executive Order strains credulity. And consideration of those statements suggests that the Administration's current litigation position is grounded not in the text of the Executive Order but in a desire to avoid legal consequences.
(Interestingly, the court said nothing about the constitutionality of Section 1373 itself. That provision is now questionable, in light of Murphy v. NCAA, as a possible "commandeering" of state governments in violation of the anti-commandeering principle. Judge Fernandez, in dissent, distinguished Murphy in a footnote by saying that the Court's articulated "principles behind the anticommnadeering rule" don't apply to Section 1373. But it's not clear how the plain ruling itself doesn't apply to Section 1373. More to come on this, I'm sure.)
The court then vacated the district court's nationwide injunction, because "the present record does not support a nationwide injunction." The court remanded "for a more searching inquiry into whether this case justifies the breadth of the injunction imposed."
(Along the way, the court also ruled that the plaintiffs had standing and that the case was ripe for judicial review.)
Judge Fernandez dissented, arguing that the case wasn't ripe and, in any event, that the EO was constitutional, because, by its plain terms, it only applies "to the fullest extent of the law."
The D.C. Circuit ruled yesterday in Archdiocese of Washington v. WMATA that the Washington Metro Area Transit Authority rule that bans religious content advertising on buses did not likely violate free speech. The court denied the Archdiocese's motion for a preliminary injunction.
Judge Kavanaugh was an original member of the panel, but recused himself from the ruling.
The ruling sides with the government on a key free-speech question: Is religious content necessarily a viewpoint? The court said no.
The case involves WMATA's Guideline 12, which closes the public-transit authority's advertising space to issue-oriented ads, including political, religious, and advocacy ads. (Importantly, the Guideline banned by pro- and con- ads on each topic.) When WMATA, acting pursuant to the Guideline, rejected the Archdiocese's request to place religious ads on buses, the Archdiocese sued, arguing that the denial violated free speech, the Free Exercise Clause, and RFRA, among others. The Archdiocese moved for a preliminary injunction, but yesterday the D.C. Circuit rejected that request.
The court ruled that the Archdiocese was unlikely to succeed on its free speech claim, because buses are a non-public forum, and Guideline 12 permissibly discriminates based on the content, not viewpoint, of the message.
The court rejected the Archdiocese's argument that any content restriction on religious speech was necessarily a viewpoint based restriction on speech because there's a religious viewpoint on any matter. "Notably, there is no principled limit to the Archdiocese's conflation of subject-matter restrictions with viewpoint-based restrictions as concerns religion. Were the Archdiocese to prevail, WMATA (and other transit systems) would have to accept all types of advertisements to maintain viewpoint neutrality, including ads criticizing and disparaging religion and religious tenets or practices."
The court distinguished Rosenberger, Lamb's Chapel, and Good News Club--all of which struck government bans on religious speech as viewpoint-based discrimination. The court said that those cases involved religious-viewpoint discrimination within a defined content of speech. But here, the government simply banned the content of all religious speech, again, both pro- and con- (or otherwise).
[F]ar from being an abrogation of the distinction between permissible subject matter rules and impermissible viewpoint discrimination, each of these cases represents an application of the Supreme Court's viewpoint discrimination analysis, of which Guideline 12 does not run afoul. In each, the Court held that the government had engaged in unconstitutional viewpoint discrimination because the challenged regulation operated to exclude religious viewpoints on otherwise includable topics. An examination of each case demonstrates the contrast between the breadth of subjects encompassed by the forums at issue and WMATA's in which, unlike the restrictions struck down by the Court, Guideline 12 does not function to exclude religious viewpoints but rather proscribes advertisements on the entire subject matter of religion.
The court also said that the Archdiocese didn't demonstrate a likelihood of success on its other claims. As to Free Exercise, the court said that Guideline 12 was merely a religiously-neutral rule of general applicability, with no evidence of religious animus, and therefore valid under rational basis review.
Check out Prof. Michael Morley's new piece, Prophylactic Redistricting? Congress's Section 5 Power and the New Equal Protection Right to Vote, in the William & Mary Law Review.
Morley argues that traditional remedial features of Section 2 of the Voting Rights Act are getting squeezed from two sides: (1) Boerne and reduced congressional authority to enforce the Fourteenth and Fifteenth Amendments mean that the Court will likely give a narrower reading to Section 2 (focusing only on intentional discrimination); and (2) the Court's shift to a "pro-equality" (and away from a "pro-vote") approach to the right to vote mean that courts will likely say that any legislative expansions of the franchise have to be shared equally by all. Here's what to do about it:
Courts may apply section 2 more aggressively to defendant jurisdictions or officials that have a recent history of engaging in intentional racial discrimination concerning the right to vote. They should also be more willing to allow prophylactic applications of section 2 in circumstances where direct evidence of constitutional violations (that is, intentional discrimination) would be impracticable or impossible to uncover. Finally, remedies under section 2 should not be broader than necessary to achieve its important prophylactic purposes. Section 2 runs a risk: the more it deviates from the mandates of the Court's developing conception of equal protection, and does so in a race-conscious manner that almost invariably inures to the benefit of a particular political party, the greater skepticism it will trigger in the courts. It places courts in the difficult position of reshaping both the rules of elections and the shape of electoral districts to attempt to replicate what a fair electoral outcome in the absence of past and present society discrimination would look like. Such awesome power demands careful use.
Saturday, July 28, 2018
A sharply divided three-judge panel of the Ninth Circuit ruled this week that Hawaii's restriction on the open carrying of firearms violates the Second Amendment.
The ruling fills a gap--and is in tension with--the en banc Ninth Circuit's previous say-so in Peruta II that the Second Amendment doesn't protect concealed carry. (Ninth Circuit law now says the Second Amendment protects open carry, but not concealed carry.) For that reason, the case is primed for en banc review.
The case, Young v. Hawaii, tested Hawaii's limitation on the open carry of firearms to those "engaged in the protection of life and property." The court first said that open carry "falls within the core of the Second Amendment." This required some careful navigating around the en banc court's prior ruling in Peruta II, and even taking that ruling on. The court, after surveying and glossing the history, simply concluded that "even though our court has read these cases to exclude concealed carry from the Second Amendment's protections, the same cases command that the Second Amendment must encompass a right to open carry."
The court went on to say that Hawaii's restriction fails at any level of scrutiny:
Restricting open carry to those whose job entails protecting life or property necessarily restricts open carry to a small and insulated subset of law-abiding citizens. Just as the Second Amendment does not protect a right to bear arms only in connection with a militia, it surely does not protect a right to bear arms only as a security guard. The typical, law-abiding citizen in the State of Hawaii is therefore entirely foreclosed from exercising the core Second Amendment right to bear arms for self-defense. It follows that [Hawaii's restriction] "amounts to a destruction" of a core right, and as such, it is infirm "[u]nder any of the standards of scrutiny."
The ruling drew a sharp dissent, on all points. Between that, and the tension with Peruta II, this isn't the last we'll see of this case. Look for en banc review.
Thursday, July 26, 2018
In an extensive and scholarly opinion in New York v. United States Department of Commerce consolidated with New York Immigration Coalition v. United States Department of Commerce, federal judge Jesse Furman has denied in part motions to dismiss and allowed the case to proceed.
Recall that the United States Commerce Department's announcement that the 2020 Decennial Census Questionnaire will include a citizenship question, which the census has not included since 1950, has provoked several challenges including the one filed in the Southern District of New York, New York v. United States Department of Commerce, raising constitutional objections on behalf of seventeen state plaintiffs, the District of Columbia, as well as six cities and the United States Conference of Mayors. The first count of the complaint is based on the "actual enumeration" requirement and avers that adding a citizenship question will "deter participation." The allegations in the complaint regarding the link between a citizenship demand and lower participation interestingly rely on the Census Bureau's own arguments and findings. The complaint alleges that consequences of lower participation is "an undercount" that will not reflect the accurate population of the plaintiffs, effecting their representation in the House of Representatives and the Electors. Two additional counts are based on the Administration Procedure Act.
The New York Immigration Coalition complaint has "five nongovernmental organizations" as plaintiffs, challenging the Secretary’s decision on the same grounds as the states' complaint but importantly on the additional ground of equal protection.
Judge Furman first found that the "government plaintiffs" and well as the "NGO plaintiffs" had standing and then rejected that the lawsuits were political questions barred from judicial review. As Judge Furman concluded:
the Court rejects Defendants’ attempts to insulate Secretary Ross’s decision to reinstate a question about citizenship on the 2020 census from judicial review. Granted, courts must give proper deference to the Secretary, but that does not mean that they lack authority to entertain claims like those pressed here. To the contrary, courts have a critical role to play in reviewing the conduct of the political branches to ensure that the census is conducted in a manner consistent with the Constitution and applicable law.
However, Judge Furman concluded that the Plaintiffs' claims under the Enumeration Clause must be dismissed. For Judge Furman, the constitutional text's broad language combined with a historical practice that has allowed many demographic questions and once included citizenship questions leads to the result that the Secretary has power to include a citizenship query. But as Judge Furman repeatedly emphasized, this does not end the issue. For example, as Judge Furman wrote:
to say that the Secretary has authority under the Enumeration Clauseto ask about citizenship on the census is not to say that the particular exercise of that authority here was constitutional or lawful. The Secretary cannot exercise his authority in a manner that would violate individual constitutional rights, such as the right to equal protection of the laws. [citations omitted]. Nor, under the APA, may he exercise his authority in a manner that would be “arbitrary” and “capricious.” 5 U.S.C. § 706(2)(A);[citation omitted]. Plaintiffs here make both kinds of claims, and the Court’s holding that the Secretary’s decision was consonant with the Enumeration Clause does not resolve those claims.
In his discussion of the equal protection claim (under the Fifth Amendment's inclusion of equal protection), Judge Furman relegated the animus argument to a footnote stating that it need not be discussed because he found that there was a sufficient claim for a denial of equal protection on the basis of Village of Arlington Heights v. Metro. Hous. Dev. Corp. (1997). Judge Furman concluded that the allegations of discriminatory effect — that inclusion of the citizenship question for all respondents will bear, in the form of diminished political representation and reduced federal funding, more heavily on “Latinos, Asian-Americans, Arab-Americans, and other immigrant communities of color” because the non-response rate is likely to be higher in such communities — were sufficient.
As to the required intent, Judge Furman listed the Arlington Heights factors:
(1) “[t]he historical background of the decision . . . particularly if it reveals a series of official actions taken for invidious purposes”; (2) “[t]he specific sequence of events leading up the challenged decision”; (3) “[d]epartures from the normal procedural sequence”; (4) “[s]ubstantive departures . . . , particularly if the factors usually considered important by the decisionmaker strongly favor a decision contrary to the one reached”; and (5) “[t]he legislative or administrative history . . . especially where there are contemporary statements by members of the decisionmaking body, minutes of its meetings, or reports.”
and then discussed each one, focusing on departures from normal procedures (which "include overruling career staff who strongly objected to including the citizenship question, failing to extensively test reintroduction of the question, and ignoring the recommendation of the Census Bureau’s advisory committee") and specific statements, including statements of the President. Judge Furman rejected the federal goverment's argument that consideration of such statements was improper after Trump v. Hawaii, writing that the government's invocation of the case "falls somewhere between facile and frivolous," especially given its practice of truncated quotation. Instead, Judge Furman found
There is nothing in the Court’s opinion [in Trump v. Hawaii] to indicate that its deferential review applies outside of the “national security and foreign affairs context,” let alone that the Court meant to unsettle decades of equal protection jurisprudence regarding the types of evidence a court may look to in determining a government actor’s intent. In fact, even with its “circumscribed judicial inquiry,” the Hawaii Court itself considered “extrinsic evidence” — namely, President Trump’s own statements. If anything, therefore, Hawaii cuts against Defendants’ arguments rather than in their favor.
Judge Furman thus directed the parties to proceed with discovery, inform the court whether the cases should be consolidated, and whether a trial or summary judgment would be more appropriate.
Wednesday, July 25, 2018
Court Says Maryland, D.C. Plausibly Alleged Emoluments Claims Against President, Case Can Go Forward
Judge Peter J. Messitte (D. Md.) ruled today that Maryland and D.C. sufficiently alleged emoluments claims against President Trump. The court denied the President's motion to dismiss the case, and will allow the case to move forward.
Recall that Maryland and D.C. sued President Trump for violations of the Foreign and Domestic Emoluments Clauses for payments by foreign and federal and state governments in connection with the President and the Trump Organization's ownership of the Trump International Hotel on Pennsylvania Avenue. The President moved to dismiss for failure to state a claim, arguing that indirect and direct payments to him aren't "emoluments." The court disagreed.
President Trump's motion required the court to define "emolument": Is it a broad term that could encompass the direct and indirect benefits that President Trump receives from his hotel (as the plaintiffs would have it), or is it much narrower, only prohibiting particular kinds of additional, outside compensation for the President? But before the court came to that question, it took a beat to broadly explain its options for constitutional interpretation. The court concluded that it should use text, original public meaning and executive branch practice as precedent to sort it out.
The court said that the text favored the broad interpretation of the term offered by the plaintiffs (and not the much narrower definition offered by the President):
As Plaintiffs point out, the Foreign Clause bans, without Congressional approval, "any present, Emolument, Office, or Title, of any kind whatever . . . . Use of such expansive modifiers significantly undermines the President's argument that this Clause was meant to prohibit only payment for official services rendered in an employment-type relationship. . . .
The phrase "any other Emolument" in the Domestic Emoluments Clause suggests the same broad interpretation of the term.
As to original public meaning, the court said that "[t]he clear weight of the evidence shows that an 'emolument' was commonly understood by the founding generation to encompass any 'profit,' 'gain,' or 'advantage,'" not limited to particular kinds of salary supplements. "Though the Court agreed that mere counting of dictionaries may not be dispositive, is nonetheless remains highly remarkable that "every English dictionary definition of 'emolument' from 1604 to 1806 relies on one or more of the elements of the broad definition DOJ rejects in its brief."
As to purpose, the court said that it "does not see how the historical record reflects anything other than an intention that the Emoluments Clauses function as broad anti-corruption provisions," and not a more limited purpose that would simply prohibit the President from receiving only "specifically identified categories of compensation."
Finally, the court said that executive branch precedent and practice also--and "overwhelmingly"--pointed toward a broad definition of "emoluments."
With respect to the Foreign Emoluments Clause, Plaintiffs have alleged that foreign governments or their instrumentalities have patronized the Trump International Hotel, spending government funds to stay at the Hotel, eat at its restaurant, and sponsor events in the Hotel's event spaces. They have done so in some cases with the express intention to cater to the good graces of the President. . . .
[Plaintiffs plausibly plead] that the GSA's abrupt about-face position [first concluding that the President was, and later that the President was not, in violation of his GSA lease for failing to divest] was and is in direct contradiction of the plain terms of the Lease and that, by determining that the Hotel was and is in compliance with the Lease, the Federal Government bestowed upon the President an emolument in violation of the Domestic Emoluments Clause.
In addition to foreign governments patronizing the Hotel, Plaintiffs claim that at least one State--Maine--has patronized the Hotel, spending state funds for its Governor and his entourage to stay at the Hotel and to frequent its facilities during an official visit of those officials to Washington, including an encounter with the President where Presidential action of interest to the Governor good place.
[Plaintiffs plausibly plead] that, in connection with the Hotel, the President has received substantial tax concessions from the District of Columbia.
The court's ruling went to the President acting in his official capacity, not individual capacity. "The Court will address the President's Motion to Dismiss the individual capacity claims against him in a subsequent Opinion."
Before the court ruled on President Trump's motion, it took on Prof. Seth Barrett Tillman's argument that the Foreign Emoluments Clause doesn't extend to the President. The court said that the text, the original public meaning and purpose, and executive branch precedent and practice all point to the conclusion that the Clause does apply to the President.
In its opinion in Lewis v. Governor of Alabama, a unanimous panel of the Eleventh Circuit has reversed the dismissal of a claim that the Alabama Minimum Wage and Right to Work Act, preempting the City of Birmingham's ordinance raising the minimum wage to $10.10, violated the Equal Protection Clause.
After considering standing and Eleventh Amendment arguments, the panel's opinion, authored by Judge Charles Wilson, proceeded to the "heart of the matter" involving the district judge's dismissal of the plaintiffs' equal protection claims that the Minimum Wage Act purposely discriminates against Birmingham’s black citizens by denying them economic opportunities on account of their race; and the Act violates the political-process doctrine by transferring control from the majority-black Birmingham City Council to the majority-white Alabama Legislature.
The court found that plaintiffs stated a claim on the intentional discrimination claim, applying the factors of Village of Arlington Heights v. Metro. Hous. Dev. Corp. (1997). The court found that there was definitely a racial impact and that the Act "bears more heavily on one race than another.”The court also considered "the rushed, reactionary, and racially polarized nature of the legislative process; and Alabama’s historical use of state power to deny local black majorities authority over economic decision-making." The court noted that the state's Act "responded directly to the legislative efforts of the majority-black Birmingham City Council, which represents more black citizens (and more black citizens living in poverty) than any other city in Alabama" and was "introduced by a white representative from Alabama’s least diverse area, with the help of fifty-two other white sponsors, and was objected to by all black members of the House and Senate. And it was accelerated through the legislative process in sixteen days with little or no opportunity for public comment or debate." The court concluded that these facts "plausibly imply discriminatory motivations were at play." Moreover, the court found that the district judge applied the incorrect legal standard when evaluating plaintiffs' complaint, a "clearest proof" standard "[r]ecklessly plucked from an unrelated line of precedent" and "contrary to decades of established equal protection jurisprudence."
However, the court affirmed the dismissal of plaintiffs' equal protection claim based on political process, despite the facts, because "to the extent that the plaintiffs allege that the minimum wage policy was 'racialized' because the 'Birmingham African-American community strongly favored' it, that argument clashes with the Supreme Court’s clear instructions" in Schuette v. BAMN (2014).
Thus, the case was remanded and can move forward on the "plausible claim that the Minimum Wage Act had the purpose and effect of depriving Birmingham’s black citizens equal economic opportunities on the basis of race, in violation of the Equal Protection Clause of the Fourteenth Amendment."
In his opinion in League of Women Voters v. Detzner, Chief Judge Mark Walker of the Northern District of Florida found that the Florida Secretary of State's Opinion barring early voting on any university or college campus most likely violates the First, Fourteenth, and Twenty-Sixth Amendments, and issued a preliminary injunction.
The issue involves an interpretation of the Florida's Division of Elections, under the Secretary of State, that Florida Statute §101.657(1)(a), passed in 2013, that permits supervisors of elections to “designate any city hall, permanent public library facility, fairground, civic center, courthouse, county commission building, stadium, convention center, government-owned senior center, or government-owned community center as early voting sites.” A question arose as to whether a particular hall on the University of Florida campus qualified and in response the state official issued an Opinion banning all university and college facilities for use in early voting.
Judge Walker found that the state's interpretation of the early voting statute was constitutionally faulty. While early voting is not required and may be classified as a convenience, Judge Walker quoted Bush v. Gore (2000) — “Having once granted the right to vote on equal terms, the State may not, by later arbitrary and disparate treatment, value one person’s vote over that of another" — to reason that constitutional problems emerge "when conveniences are available for some people and affirmatively blocked for others." Judge Walker began the opinion by noting that the number of people effected was substantial: more than 1.1 million "young men and women were enrolled in institutions of higher learning" in Florida in 2016, nearly 830,000 in public institutions, as well as there being another 107,000 staff members at the public institutions. To stress the number of people involved, Judge Walker wrote:
Put another way, the number of people who live and work on Florida’s public college and university campuses is greater than the population of Jacksonville, Florida—or the populations of North Dakota, South Dakota, Alaska, Vermont, Wyoming, and the District of Columbia.
Judge Walker first applied the the Anderson-Burdick balancing test for less than "severe restrictions." (Recall in Burdick v. Takushi (1992) the Court upheld Hawai'i 's ban on write-in voting). Judge Walker stated that even assuming the state's opinion could be construed as a reasonable nondiscriminatory restriction, it imposed significant burdens on the plaintiffs' First and Fourteenth Amendment rights to vote, categorically prohibiting the use of on-campus early voting and thus "lopsidedly impacts Florida's youngest voters," a class of voters "particularly invested in early voting" with approximately 43 percent of Florida's college students voting early in 2016. These burdens were not justified by the state's interests — which the Judge stated "one must squint hard to identify"— in following state law, preventing parking issues, and avoiding on-campus disruption.
As to the Twenty-Sixth Amendment issue, Judge Walker found that while there was a "dearth of guidance on what test applies" when the claimed infringement is not a facial denial of voting for any citizen 18 years or older, the standard of Village of Arlington Heights v. Metro. Hous. Dev. Corp. (1997) was generally accepted. Judge Walker found that the state's approach revealed a stark pattern of discrimination unexplainable on grounds other than age. Judge Walker also compared the state's policy to earlier seemingly neutral attempts to effect African-American voters, noting that
This Court does not lightly compare contemporary laws and policies to more shameful eras of American history. But addressing intentional discrimination does not require kid gloves.
Having found that there was a likelihood that plaintiffs would prevail on the merits, Judge Walker also found the other requirements for a preliminary injunction were met. The judge instructed the Defendant Secretary of State to issue a directive to supervisors of elections that they retain discretion to implement the Florida statute including any sites that may be on university or college campuses.
Tuesday, July 17, 2018
Check out Aaron Tang's piece on SSRN, How to Undo Janus: A User-Friendly Guide. In response to Janus, where the Court ruled that fair-share violated the First Amendment, Tang argues that "lawmakers can amend state law to permit government employers to reimburse unions for their bargaining-related expenses directly."
Monday, July 16, 2018
Check out Jonathan Adler's piece at the NYT, Will Kavanaugh Curb Sloppy White House Deregulation? Adler argues that Judge Kavanaugh "has expressed concerns about the Chevron doctrine," and "is not one to give [agencies] a pass." Still, Adler argues that "Judge Kavanaugh's concern about overbroad applications of Chevron should not be misinterpreted as hostility to regulation."
Thursday, July 12, 2018
President Trump issued an executive order earlier this week that created a new hiring process for administrative law judges, excepting them from competitive hiring rules and examinations and authorizing their appointments to the newly created "Schedule E" of the excepted service by department heads. (H/t to conlaw student Sahil Malhotra.)
The move abolishes the centralized process currently in place for the competitive selection of ALJs and places their appointments in department heads. The move has been criticized because it could politicize the appointments of ALJs, and thus politicize their work.
The EO says that the move is in response to the Supreme Court's recent ruling in Lucia. Recall that the Court held that SEC ALJs aren't mere employees, but instead are "officers" subject to the Appointments Clause. This means that they need to be appointed by the President or the department head (or the courts). It doesn't (necessarily) mean that they need to be excepted from competitive hiring altogether, though. Still, the EO appears to take the position that competitive hiring might be a violation of the Appointments Clause, and, for that reason, excepts ALJs from competitive hiring altogether. From the EO:
As evident from recent litigation, Lucia may also raise questions about the method of appointing ALJs, including whether competitive examination and competitive selection procedures are compatible with the discretion an agency head must possess under the Appointments Clause in selecting ALJs. Regardless of whether those procedures would violate the Appointments Clause as applied to certain ALJs, there are sound policy reasons to take steps to eliminate doubt regarding the constitutionality of the method of appointing officials who discharge such significant duties and exercise such significant discretion.
The EO applies Lucia to all ALJs across the Executive Branch, even though Lucia doesn't necessarily reach that far (which the EO itself recognizes). (Lucia was based on the roles and functions of SEC ALJs, which may be different than other agencies' ALJs.)
The EO doesn't apply to current ALJs. Under Lucia, some or all of these will require re-appointment by their agency head--again, depending on how similar they are to the SEC ALJs in Lucia (an question that agencies are currently working out). And notably the EO only changes ALJs' appointment, not their removal.
Check out Geoff Stone's piece at The Huffington Post, It's Now Up To Senate Moderates To Save The Supreme Court.
If Trump's nominee is confirmed on an essentially party-line vote in the Senate, especially in the aftermath of Republicans' unprincipled refusal to confirm Merrick Garland in order to bring about precisely this situation, this will mark the end of even the pretense of a nonpartisan, nonpolitical Supreme Court. It will undermine the credibility and integrity of the court and its decisions for decades to come. . . .
So, what should the principled, moderate and wise Republican and Democratic members of the Senate to whom this essay is addressed do? They should refuse to confirm this nominee or any successor nominee unless a majority of both Republican and Democrats on the Senate Judiciary Committee supports confirmation.
Tuesday, July 10, 2018
There is obviously much to read and discuss regarding the President's nomination of D.C. Circuit Judge Brett Kavanaugh but two pieces from the Washington Post today stand out.
First, Aaron Blake considers Kavanaugh's comment, made immediately after thanking the president for the nomination, “No president has ever consulted more widely, or talked with more people from more backgrounds, to seek input about a Supreme Court nomination." Banks characterizes this statement as "thoroughly strange and quite possibly bogus." As Banks notes, it is a "completely unprovable assertion — and one that would require a basically unheard-of level of research to substantiate," although perhaps it is also "difficult, if not impossible, to disprove." It seems, Banks concludes, a "thoroughly inauspicious way to begin your application to the nation's highest court, where you will be deciding the merits of the country's most important legal and factual claims."
Second, law professor Nancy Leong in her op-ed argues essentially that men need to enter the conversation surrounding abortion in a more honest manner: "Mathematically speaking, millions of men have such [abortion] stories. The one-in-four women who have had an abortion did not get pregnant on their own." Leong references the amicus brief by women attorneys regarding abortions as an effective communication with (soon to be former) Justice Kennedy and implies that a similar brief by men is long overdue. "For decades, men have benefited from the availability of safe and legal abortion. It’s time for men to start taking threats to reproductive freedom personally."
Monday, July 9, 2018
The Fourteenth Amendment was ratified on July 9, 1868.
Here's the text:
Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
Section 2. Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State.
Section 3. No person shall be a Senator or Representative in Congress, or elector of President and Vice President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may, by a vote of two-thirds of each House, remove such disability.
Section 4. The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned. But neither the United States nor any State shall assume or pay any debt or obligation incurred in aid of insurrection or rebellion against the United States, or any claim for the loss or emancipation of any slave; but all such debts, obligations and claims shall be held illegal and void.
Section 5. The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.
[images National Archives via]
July 9, 2018 in Due Process (Substantive), Equal Protection, Fourteenth Amendment, Fundamental Rights, History, Privileges or Immunities: Fourteenth Amendment , Procedural Due Process, Race, Reconstruction Era Amendments | Permalink | Comments (0)
Friday, July 6, 2018
In a brief opinion in Cigar Association of America v. United States Food and Drug Administration, Judge Amit Mehta has enjoined the FDA's warning requirements regarding cigars under 21 CFR 1143.5, such as the statement "Cigar smoking can cause lung cancer and heart disease" pending appeal.
In a previous opinion in May, Judge Mehta had sustained the FDA rule against a First Amendment challenge (as well as other challenges), finding that "Because the warning statements are factual and uncontroversial disclosures aimed at informing the public about the risks of cigar and pipe tobacco use and at correcting the public’s misperceptions about such products’ use, and because the [FDA] Rule does not impose these requirements in an “unjustified or unduly burdensome” manner, the Rule is constitutional" under Zauderer v. Office of Disciplinary Counsel of Supreme Court of Ohio (1985).
Nevertheless, Judge Mehta's conclusion regarding the "likelihood of success on the merits" prong of the preliminary injunction analysis was that the Cigar Association raised "serious legal questions going to the merits, such as
whether Defendants’ asserted governmental interest in imposing the health warnings regime is a substantial one; the precise burden the government bears under Zaudererto compel purely factual and uncontroversial government speech; and whether a disclosure of the size and appearance mandated by the warnings requirements is so “unduly burdensome” as to chill protected speech. These are difficult legal questions, and the D.C. Circuit might well disagree with this court’s resolution of them.
Most interestingly, however, Judge Mehta relies on the Supreme Court's June decision in National Institute of Family and Life Advocates v. Becerra holding California's FACT Act requiring of disclosures by "pregnancy crisis centers" violated the First Amendment. Judge Mehta states that Becerra "only adds to the substantiality of the issues Plaintiffs intend to raise on appeal," even as Judge Mehta writes
This court does not concur that Becerra requires an outcome different than the one the court reached— Becerradiffers from this case in multiple, material ways—but that disagreement does not diminish the merits of Plaintiffs’ motion. Becerra makes clear that Plaintiffs’ appeal raises serious legal questions.
Yet while an important aspect of the Court's opinion in Becerra as we discussed was that abortion was not "uncontroversial," it does seem as if the cigar association cannot make the same claim as to the links between tobacco and cancer. Or can they?
A case to watch as it goes to the D.C. Court of Appeals in the continuing saga of First Amendment challenges to government mandated warnings and disclosures by industries as in the 2014 DC Circuit en banc American Meat Institute v. U.S. Department of Agriculture and panel opinions in National Association of Manufacturers v. SEC (conflict minerals) and R.J. Reynolds Tobacco Co. v. FDA (cigarette labeling).
Judge John A. Mendez (E.D. Cal.) yesterday granted part, but denied most, of the federal government's motion for a preliminary injunction against California's sanctuary-jurisdiction laws. The ruling is only preliminary--so goes only to the likelihood of success on the merits, and not the actual success on the merits--but it nevertheless signals the court's likely approach if and when it gets to the actual merits.
This is just the latest ruling where a state promoting a progressive immigration agenda draws on conservative-Court-created structural features of the constitution (here, federalism). In particular, Judge Mendez writes that Section 1373 (the federal prohibition on states prohibiting their officers from communicating with the feds about detained individuals in order to determine their immigration status) likely violates the Court-created anticommandeering principle in Printz and (just recently) Murphy.
The case, United States v. State of California, is the federal government's challenge to California's several sanctuary laws. Here they are, with the court's analysis, one at a time:
Assembly Bill 103's Direction for State AG Review of Detention Facilities. This provision directs the state attorney general to review and report on county, local, and private locked detention facilities used by the federal government to house detainees in civil immigration proceedings in the state. The court rejected the government's argument that this provision interfered with the federal government's exclusive authority in the area of immigration detention (and was thus preempted), because the provision amounted merely to funding an authority the state AG already had. "The Court finds no indication . . . that Congress intended for States to have no oversight over detention facilities operating within their borders. Indeed, the detention facility contracts [California] provided to the Court expressly contemplate compliance with state and local law."
Assembly Bill 405's Prohibition on Consent. This provision prohibits (on pain of fine) public and private employers from providing voluntary consent to an immigration enforcement agent to enter nonpublic areas of a job-site or to access an employer's records on its employees. The court said that the consent prohibition violated intergovernmental immunity, because "[t]hese fines inflict a burden on those employers who acquiesce in a federal investigation but not on those who do not."
Assembly Bill 405's Notice Requirement. This provision requires employers to provide notice to their employees "of any inspections of I-9 Employment Eligibility Verification forms or other employment records conducted by an immigration agency within 72 hours of receiving notice of the inspection." The court said that this prohibition was likely valid: Federal immigration law "primarily imposes obligations and penalties on employers, not employees. . . . [T]he Court finds no indication--express or implied--that Congress intended for employees to be kept in the dark."
Assembly Bill 405's Reverification Requirement. This limits an employer's ability to reverify an employee's employment eligibility when not required by law. The court said that it likely "stand[s] as an obstacle" to federal immigration law and is thus preempted.
Senate Bill 54's Prohibition on State Law Enforcement Providing Immigration Information to the Feds. This provision prohibits state law enforcement from providing certain information to federal immigration officials relating to a detained person, except as required by federal law. The court wrote that Section 1373 (which prohibits states from prohibiting their officials from sharing this kind of information) likely violates the anticommandeering principle under Murphy (the Court's most recent foray into the principle, in the New Jersey sports-gambling case), because that case held that anticommandeering applies equally when Congress tells states what they may not do. But ultimately the court dodged the anticommandeering question by giving Section 1373 a narrow reading and recognizing that SB 54 contained an exception for complying with federal law--and thus holding that the two are not in conflict. The court went on to say that SB 54 also does not create an obstacle to federal enforcement, because it merely means that state officials don't cooperate with federal enforcement (and not that they actively stand in the way of federal immigration enforcement).
Thursday, July 5, 2018