Friday, January 12, 2018
The United States Supreme Court has announced it will hear Abbott v. Perez, a redistricting case decided by a three judge court in Texas.
Recall that the lengthy opinion under both the Equal Protection Clause and the Voting Rights Act included a finding of intentional racial discrimination by the Texas legislature. The three judge court found that the plaintiffs could demonstrate "either through direct or circumstantial evidence that the government body adopted the electoral scheme with a discriminatory purpose, that the body maintained the scheme with discriminatory purpose, or that the system furthered pre-existing intentional discrimination."
The addition of Abbott v. Perez to the Court's docket heralds the 2017-2018 Term as a major one for redistricting, adding to the partisan gerrymandering cases of Gill v. Whitford (argued in October) and Benisek v. Lamone, and continuing to confront issues of racial gerrymandering as in last term's cases of Bethune-Hill v. Virginia State Board of Elections and Cooper v. Harris.
Thursday, January 11, 2018
Recall the lawsuit by Summer Zervos against Donald Trump for defamation. It's filed in New York state court and Trump has argued that Clinton v. Jones, the 1997 case in which the United States Supreme Court held that President Clinton was not immune from being sued, should not apply to state court proceedings.
In an amicus brief filed in Zervos v. Trump, and available on ssrn, three law professors who submitted an amicus brief in Clinton v. Jones in support of a plaintiffs' right to sue the sitting President in federal court,now argue that the rule should apply to state court as well. The professors - - - Stephen Burbank, Richard Parker, and Lucas Powe, Jr. - - - argue that a President should be amenable to suit in state as well as federal court, with appropriate docket-management accommodations made in light of the demands on a President's time and attention.
At issue is footnote 13 of Clinton v. Jones which might be read to distinguish state court proceedings from the federal one involved in Clinton:
Because the Supremacy Clause makes federal law “the supreme Law of the Land,” Art. VI, cl. 2, any direct control by a state court over the President, who has principal responsibility to ensure that those laws are “faithfully executed,” Art. II, §3, may implicate concerns that are quite different from the interbranch separation of powers questions addressed here. Cf ., e.g. , Hancock v. Train , 426 U.S. 167, 178 -179 (1976); Mayo v. United States , 319 U.S. 441, 445 (1943). See L. Tribe, American Constitutional Law 513 (2d ed. 1988) (“[A]bsent explicit congressional consent no state may command federal officials . . . to take action in derogation of their . . . federal responsibilities”).
The amicus brief contends that the footnote is best read as limited to the problem of direct control of presidential activities by a state court. That, they argue, is not the Zervos suit, since Zervos' lawsuit has nothing to do with the president's duties. They conclude that the best reading of the Constitution, the requirements of federalism and the rule of law, and the Supreme Court's decision in Clinton v. Jones direct that state courts be permitted to entertain suits against sitting Presidents for conduct arising from their pre-Presidential conduct, just as federal courts can.
Judge Jennifer Schecter has yet to issue a ruling.
In his opinion in Greater Birmingham Ministries v. Merrill, United States District Judge L. Scott Cooler granted summary judgment to the state in a challenge to Alabama's Photo Identification statute, Ala. Code § 17-9-30, passed in 2011 and first operative in 2014. Plaintiffs argued that the photo identification law violated the Fourteenth Amendment's Equal Protection Clause and the Fifteenth Amendment's guarantee that the "right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.”
Because the Alabama voter photo identification statute did not make an explicit racial classification, the plaintiffs had the burden of demonstrating that the statute had both racial intent and racial effect as the United Sates Supreme Court made clear in Arlington Heights v. Metro. Hous. Dev. Corp. (1977) and Washington v. Davis (1976). Judge Cooler recited the Arlington Heights factors for intent - - - usually the more difficult prong to prove - - - but then determined that "such an undertaking is not necessary in this case," because plaintiffs did not show effect. Judge Cooler concluded that in this case, "the Photo ID Law does not in fact discriminate on the basis of race." (emphasis in original).
Essentially, Judge Cooler rejected the relevance of expert testimony regarding the racial impact:
Also according to Dr. Siskin, 1.37% of white registered voters, 2.44% of Black registered voters, and 2.29% of Hispanic registered voters may not currently have an acceptable photo ID. Frankly, the discrepancy in photo ID possession rates among white, Black, and Hispanic registered voters in Alabama is miniscule. In other words, it appears that very few registrants of any racial group may presently be affected by the Photo ID Law. Nonetheless, the numbers show that Black and Latino registered voters are almost twice as likely as white voters to lack an acceptable photo ID for voting. Although Secretary Merrill’s expert’s numbers differ somewhat (Dr. Hood estimated that .87% of white, 1.44% of Black, and 1.26% of Hispanic registered voters lack photo ID), Secretary Merrill does not dispute that registered voters of color in Alabama are statistically more likely than white voters to lack the required photo ID.
Interestingly, Judge Cooler continued with an allusion to the high voter turnout in the hotly contested Alabama Senate race:
It is worth noting that any conclusions reached from this evidence must be qualified by the fact that the studies were completed in July 2016, and the actual possession rates are certainly in flux as voters who want them obtain photo IDs. Indeed, since the analyses were done, there has been a Presidential election and a special election to choose Alabama’s U.S. Senator. Many people who may not have had ID more than a year ago could have gotten one since, particularly if they wanted to participate in those elections.
But in the end, Dr. Siskin’s estimate does not matter. This is because a person who does not have a photo ID today is not prevented from voting if he or she can easily get one, and it is so easy to get a photo ID in Alabama, no one is prevented from voting.
Judge Cooler then discussed the requirements for obtaining photo identification and concluded:
In sum, the “impact” of the law should not be measured by how many people lack a given ID at a given point in time, but by whether someone without an ID can easily get one. In Alabama, the law has no discriminatory impact because it does not prevent anyone from voting, not when free IDs are issued in every county, or at home, under conditions that any registered voter can meet.
Returning to the issue of intent, Judge Cooler found that "there is no evidence that the Alabama Legislature believed that a photo ID law would disadvantage minority voters, particularly after providing means for people without an ID to receive one free of charge." Not surprisingly, Judge Cooler also denied the plaintiffs' claim under the Voting Rights Act.
Given the contentious state of efforts to prevent "voter fraud" that may be linked to efforts to suppress the vote by non-white voters, this is sure to be appealed.
UPDATE: Notice of Appeal and Statement from LDF-NAACP here
Judge Timothy J. Kelly (D.D.C.) yesterday denied Leandra English's motion for a preliminary injunction against President Trump in the dispute over the acting directorship of the Consumer Financial Protection Bureau.
Recall that outgoing director Richard Cordray appointed English as deputy in late November. Under Dodd-Frank, this meant that English would become acting director upon Cordray's resignation. But at the same time, President Trump appointed OMB Director John Michael Mulvaney as acting director pursuant to his authority under the Federal Vacancies Reform Act. As a result, both English and Mulvaney claimed title to acting director. English sued to get the courts to recognize her as the actual acting director.
Judge Kelly ruled that English was unlikely to succeed on the merits of her claim. According to the court, that's because Dodd-Frank and the FVRA can be read in harmony--in favor of the President's authority to appoint an acting director over Dodd-Frank's provision automatically assigning the post to the deputy:
The best reading of the two statutes is that Dodd-Frank requires that the Deputy Director "shall" serve as acting Director, but that under the FVRA the President "may" override that default rule. This reading is compelled by several considerations: the text of the FVRA, including its exclusivity provision, the text of Dodd-Frank, including its express-statement requirement and Deputy Director provision, and traditional principles of statutory construction.
The court said that constitutional avoidance principles confirmed this result. In particular,
English's interpretation of Dodd-Frank potentially impairs the President's ability to fulfill his obligations under the Take Care Clause. Under English's theory, because Cordray installed her as Deputy Director, she must remain acting Director--no matter whom the President would prefer in that role--until a new permanent Director is appointed. . . .
Under English's interpretation, however, Cordray could have named anyone the CFPB's Deputy Director, and the President would be virtually powerless to replace that person upon ascension to acting Director--no matter how unqualified that person might be. That alone threatens to undermine the President's ability to fulfill his Take Care Clause obligations. And this problem is compounded by another unique feature of the directorship of the CFPB: it is vested with unilateral, unchecked control over the CFPB's substantial regulatory and enforcement power.
The court said that nothing in Dodd-Frank prevented the President from appointing the acting OMB chief to simultaneously serve as CFPB Director.
The ruling is only on English's motion for a preliminary injunction--and doesn't finally settle the directorship dispute--but it foretells the ultimate result in this court.
Wednesday, January 10, 2018
Judge William Alsup (N.D. Cal.) yesterday issued a preliminary injunction requiring the Trump Administration "to maintain the DACA program on a nationwide basis on the same terms and conditions as were in effect before the rescission on September 5, 2017."
The order requires the government to continue to administer DACA, including allowing DACA enrollees to renew their enrollments, despite the Administration's announcement last year that it would halt the program. The order also potentially complicates negotiations over a congressional fix.
The court ruled that the plaintiffs were likely to succeed on the merits of their challenge to President Trump's repeal of the DACA program. In short, the court ruled that DACA was legal when adopted; that the government's stated reason for repealing it (that DHS lacked authority to implement it) was wrong as a matter of law; and that the government's post-hoc rationalization for repeal (the "litigation risk" it faced in defending DACA) didn't count, and, in any event, was arbitrary and capricious.
This order holds that, in light of our own court of appeals' reasoning . . . and in light of the analysis of the Office of Legal Counsel of the United States Department of Justice, and the reasoning set forth above, our court of appeals will likely hold that DACA was and remains a lawful exercise of authority by DHS. Plaintiffs are therefore likely to succeed on the merits of their claim that the rescission was based on a flawed legal premise and must be set aside as "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law."
Along the way, the court distinguished the DAPA program, ruled illegal by the Fifth Circuit and affirmed by an equally divided Supreme Court, and said that the reasons why DAPA exceeded DHS authority don't apply to DACA:
While at least some of the majority's reasons for holding DAPA illegal would apply to DACA, fairness requires saying that DACA and DAPA were different, as the panel opinion stated. An important criticism against DAPA would not apply against DACA, namely the fact that Congress had already established a pathway to lawful presence for alien parents of citizens (so that DAPA simply constituted a more lenient substitute route). DACA, by contrast, has no such analogue in the INA. And, there is a difference between 4.3 million [covered by DAPA] and 689,800 [covered by DACA]. Finally, the criticism that DACA has been mechanically administered without the exercise of discretion in individual cases, if true, could be fixed by simply insisting on exercise of discretion. In sum, the DAPA litigation was not a death knell for DACA.
The ruling will surely be appealed.
Tuesday, January 9, 2018
The Sixth Circuit ruled today that voting rules on a proposed state constitutional amendment providing that the state constitution is not to be construed as protecting the right to abortion did not violate due process and equal protection. The ruling means that the state constitutional amendment can go into effect (although, given the federal right to abortion, it'll have no practical impact).
The case, George v. Hargett, arose when Tennessee voters approved an amendment to the Tennessee Constitution prohibiting construction of the state constitution to secure or protect the right to abortion or to require funding for abortion. Opponents of the measure sued, arguing that the voting rules for state constitutional amendments, found in Article XI, Section 3, of the state constitution, violated due process and equal protection.
Article XI, Section 3, provides:
if the people shall approve and ratify such amendment or amendments by a majority of all the citizens of the State voting for Governor, voting in their favor, such amendment or amendments shall become a part of this Constitution.
The language is vague as to whether a vote must vote in both the gubernatorial election and on the amendment, or whether a voter could vote on the amendment without also voting in the gubernatorial election. (State practice said the latter.) So during the campaign, amendment supporters urged voters to vote for the proposed amendment, but not to vote in the gubernatorial election, in order to gain a numerical advantage. In contrast, amendment opponents urged voters to vote in both the gubernatorial election and on the amendment, in order to gain their own numerical advantage.
Tennessee voters voted in favor of the amendment. And for the first time in the state's history, the number of ballots cast on the amendment question exceeded the number of ballots in the gubernatorial election (reflecting the strength of the political campaign in favor of the amendment). This made the math easy: under Article XI, Section 3, the number of votes in favor of the amendment clearly exceeded half the number of total votes in the gubernatorial election.
Amendment opponents sued, arguing that Article XI, Section 3, under the prevailing interpretation, violated due process and equal protection. (They also argued for a different interpretation of Article XI, Section 3--that only those voters who also voted for governor could vote for the amendment--but the Sixth Circuit deferred to a final state court ruling that voters could vote on an amendment without also voting for governor.)
The Sixth Circuit rejected those claims. The court said that there was no due process violation, because no "voter's right to vote was burdened by government action." In short, the voting rules (set by the state court) allowed everyone to vote on the amendment, and counted all the votes on the amendment. The court said that there was no equal protection violation, because "[e]very vote cast--on the amendment and in the governor's race--was accorded the same weight."
The ruling ends the challenge and means that Tennessee's Constitution now contains a provision that prohibits an interpretation to secure or protect the right to abortion. But again: This'll have no practical effect on the right to abortion in the state, given the federal constitutional right to abortion.
In an extensive and well-crafted opinion in the consolidated cases of Common Cause v. Rucho and League of Women Voters v. Rucho, a three judge court found North Carolina's 2016 redistricting plan was unconstitutional partisan gerrymandering under the Equal Protection Clause, the First Amendment, and Article I §§ 2, 4.
Recall that the United States Supreme Court heard oral arguments on the issue of partisan gerrymandering in Gill v. Whitford in the earliest days of this Term. Recall also that in early December, the United States Supreme Court added another partisan gerrymandering case to its docket, Benisek v. Lamone.
Fourth Circuit Judge James Wynn's almost 200 page opinion for the majority, joined by Senior District Judge Britt, first discusses the facts involved in the North Carolina redistricting, some incidents and players of which will be familiar from the Supreme Court's opinion in Cooper v. Harris, a racial gerrymandering case challenging only two districts and arising from an earlier North Carolina redistricting.
This is the 2016 plan at issue in Common Cause and League of Women Voters:
Judge Wynn's opinion carefully resolves the question of standing and justiability. Important to the justiciability analysis is the issue of judicially manageable standards, and Judge Wynn writes a robust support for social science, noting that the "Supreme Court long has relied on statistical and social science analyses as evidence that a defendant violated a standard set forth in the Constitution" and citing cases under the Equal Protection Clause such as Yick Wo v. Hopkins, Brown v. Board of Education of Topeka, and City of Richmond v. J.A. Croson Co. (It is interesting in this regard to (re)consider Chief Justice Roberts's statements during the oral argument in Gill v. Whitford disparaging social science.)
Judge Wynn wrote:
To hold that such widely used, and relied upon, methods cannot provide a judicially manageable standard for adjudicating Plaintiffs’ partisan gerrymandering claims would be to admit that the judiciary lacks the competence—or willingness—to keep pace with the technical advances that simultaneously facilitate such invidious partisanship and provide an opportunity to remedy it.
On the merits of the Equal Protection Clause claim, Judge Wynn's opinion found that there must be an intent to discriminate on a partisan basis and that there was such an effect, and then the burden would shift to the governmental defendant to prove that a legitimate state interest or other neutral factor justified such discrimination. Here, Judge Wynn's opinion concluded that all were resolved in the challengers' favor. On the First Amendment claim, Judge Wynn considered several strands of doctrine:
Against these many, multifaceted lines of precedent, the First Amendment’s applicability to partisan gerrymandering is manifest. How can the First Amendment prohibit the government from disfavoring certain viewpoints, yet allow a legislature to enact a districting plan that disfavors supporters of a particular set of political beliefs? How can the First Amendment bar the government from disfavoring a class of speakers, but allow a districting plan to disfavor a class of voters? How can the First Amendment protect government employees’ political speech rights, but stand idle when the government infringes on voters’ political speech rights? And how can the First Amendment ensure that candidates ascribing to all manner of political beliefs have a reasonable opportunity to appear on the ballot, and yet allow a state electoral system to favor one set of political beliefs over others? We conclude that the First Amendment does not draw such fine lines.
In a brief separate opinion, concurring in part and dissenting in part, District Judge Osteen, Jr., disagreed as the standard for proving intent in Equal Protection but concluded the standard was met; disagreed on the merits of the First Amendment claim; and agreed that there was a violation of Article I.
Judge Wynn's opinion gave North Carolina until January 29 to submit a new plan to the Court, but one wonders if North Carolina will also be aggressively pursuing remedies at the United States Supreme Court, especially given Gill v. Whitford and Benisek v. Lamone.
Judge Trevor McFadden (D.D.C.) ruled today that Cause of Action Institute has standing to sue to seek former Secretary of State Colin Powell's work-related e-mails on his personal AOL account. The ruling means that the case can move forward.
Cause of Action Institute first sought the Powell e-mails through a FOIA request. But after the State Department said that the e-mails no longer exist, the organization sued under the Federal Records Act and the Administrative Procedure Act. State and the Archivist moved to dismiss, arguing that Cause's harm (not getting the e-mails) couldn't be redressed by a favorable court ruling, because, after all, the e-mails no longer exist. Without redressibility, there's no standing.
The court disagreed. Judge McFadden ruled, in short, that the government hadn't tried hard enough to obtain the missing e-mails, given its mandatory obligations to recover missing records under the FRA. The court followed the D.C. Circuit's lead in Judicial Watch, Inc. v. Kerry, which held that a similar case seeking former Secretary Clinton's missing e-mails wasn't moot, and noted that further government investigation in that case led to the discovery of many of those e-mails. The same could be true here, the court reasoned, meaning that Cause could show that a court order for the government to investigate further could lead to the discovery of the e-mails--and that it therefore has standing.
Today's ruling--again, backed by the D.C. Circuit's ruling in Judicial Watch--means that Cause's case can move forward and seek a court order for the government to initiate action under the FRA through the Attorney General for recovery of the e-mails.
Monday, January 8, 2018
Check out this WSJ report on the Justice Department's reversals of positions in important cases under President Trump. Among the issues: union agency-fee and the First Amendment; Ohio's removal of nonvoters from the voting rolls; DACA; the constitutionality of the Consumer Financial Protection Bureau; federal subsidies for insurance companies on the exchanges; and prisoner rights.
Friday, January 5, 2018
In a Memorandum on January 4, Attorney General Jeff Sessions has rescinded previous Department of Justice instructions to United States Attorneys relating to enforcement of federal laws criminalizing marijuana as "unnecessary" in favor of a well-established rule of general guided discretion. The DOJ press release describes it as a "return to the rule of law," but it arguably makes the legal rules more subject to discretion and even more unclear. The legalization of marijuana by states while the federal government maintains marijuana on its schedule of controlled substances pertinent to criminal laws presents complicated problems of federalism and preemption.
An excellent primer on these issues is Lea Brilmayer's article A General Theory of Preemption: With Comments on State Decriminalization of Marijuana, appearing in a recent symposium on Marijuana and Federalism in Boston College Law Review.
Brilmayer does provide some background on the marijuana controversies, including a discussion of the Supreme Court's failure to provide clear answers on the state-federal conflicts regarding marijuana. But, as her title indicates, marijuana is an example rather than a primary focus. She explains the principles and open questions in the doctrines of vertical and horizontal preemption, then uses concrete examples involving marijuana. Her ultimate conclusion is that there is a weak case for preemption in the marijuana decriminalization context.
This is a terrific introduction for understanding the issues surrounding the issues raised by the Sessions memo regarding state marijuana decriminalization. At 35 pages, with accessible hypotheticals, this could be a great assignment for Constitutional Law classes this semester.
Thursday, January 4, 2018
In its opinion in Animal Defense League Fund v. Wadsen, a divided panel of the Ninth Circuit largely affirmed the injunction of Idaho's so-called "Ag-Gag" law, Idaho Code § 18-7042.
Recall that Chief Judge B. Lynn Winmill concluded that portions of the statute violated the First Amendment and enjoined them in 2015. The Idaho statute created a new crime, “interference with agricultural production" and provided that
A person commits the crime of interference with agricultural production if the person knowingly:
(a) is not employed by an agricultural production facility and enters an agricultural production facility by force, threat, misrepresentation or trespass;
(b) obtains records of an agricultural production facility by force, threat, misrepresentation or trespass;
(c) obtains employment with an agricultural production facility by force, threat, or misrepresentation with the intent to cause economic or other injury to the facility's operations . . .
(d) Enters an agricultural production facility that is not open to the public and, without the facility owner's express consent or pursuant to judicial process or statutory authorization, makes audio or video recordings of the conduct of an agricultural production facility's operations;
On appeal, the Ninth Circuit majority opinion, authored by Judge Margaret McKeown and joined by Judge Richard C. Tallman, affirmed the finding that subsections (a) and (d) violated the First Amendment, but held that subsections (b) and (c), criminalizing misrepresentations to obtain records and secure employment are not protected speech under the First Amendment and do not violate the Equal Protection Clause. In his partial dissent, Judge Carlos Bea argued that subsection (a), criminalizing misrepresentations to enter a production facility,should survive constitutional review.
What might be called the ethical center of the litigation is exemplified by the famous novel The Jungle (also discussed by the federal district judge) in which Upton Sinclair highlighted conditions in the meat-packing industry and which was based on the author's time working incognito in a packing plant. But the majority opinion also observes that the appeal "highlights the tension between journalists’ claimed First Amendment right to engage in undercover investigations and the state’s effort to protect privacy and property rights in the agricultural industry."
But the doctrinal center of the court's analysis of the Idaho statute criminalizing misrepresentation is the United States Supreme Court's fractured opinion in United States v. Alvarez (2012), holding unconstitutional the federal "stolen valor" statute criminalizing falsely claiming to have been awarded a military medal.
In short, the majority found that subsection (a)'s misrepresentation provision was protected speech under Alvarez subject to exacting scrutiny, which it did not survive, especially given the potential for selective prosecution and its overbreadth. On the other hand, subsection (b) pertaining to obtaining records was not protected speech under Alvarez because unlike subsection (a)'s "false statements made to enter property, false statements made to actually acquire agricultural production facility records inflict a property harm upon the owner, and may also bestow a material gain on the acquirer" and the provision is aimed at conduct. Somewhat similarly, subsection (c)'s criminalization of obtaining employment is not protected speech under Alvarez since the statements were made for material gain. The majority interestingly observed that it was almost as if "the Idaho legislature drafted this provision with Alvarez by its side," but interestingly did not observe that this provision would have criminalized Upton Sinclair as he researched his novel. Finally, subsection (d), the recordings clause, was not within the false statements analysis of Alvarez, but was a content-based prohibition that failed strict scrutiny.
With the proliferation of ag-gag laws, this Ninth Circuit opinion is sure to be relied on by the Tenth Circuit as it considers a district court 2017 decision in Animal Defense Fund v. Herbert holding Utah's ag-gag law unconstitutional under the First Amendment.
[Images from NYPL public domain collection]
In its unanimous panel opinion in Wandering Dago, Inc. v. DeSito, the Second Circuit reversed the district court and held that the the denial of a permit to operate a food truck at the Empire State Plaza in Albany violated the First Amendment as well as the Equal Protection Clause.
Recall from our discussion of the district court's 2016 decision that the issue involved a program in a facility owned by the state of New York and operated by the state Office of General Services (OGS) under Commissioner RoAnn Desito. In the summers of 2013 and 2014, OGS administered "The Empire State Plaza Summer Outdoor Lunch Program," permitting vendors to operate food trucks for limited hours on the plaza, intended to provide "lunch options to the approximately 11,000 State employees who work at Empire State Plaza, as well as for visitors to the Capitol, State Museum, performing arts center" and various monuments and memorials in New York's capital city.
As the list of applicants was being processed, the application for "Wandering Dago" attracted attention of OGS employees, one who "recognized the term 'dago' as 'a highly offensive term for Italians,'" and after conducting a "computer search" to determine whether this was true, his conclusion was not only "confirmed" but it was "revealed" that the term has been "used to refer to people of Spanish and Portuguese descent, as well as Italians." OGS denied the application "on the grounds that its name contains an offensive ethnic slur and does not fit with OGS' policy of providing family-friendly policy." Wandering Dago's application the next year was similarly rejected.
The Second Circuit's opinion, authored by Judge Susan Carney, concluded that the case was clearly governed by the United States Supreme Court's recent decision in Matal v. Tam ("The Slants" case) finding that the "disparagement" provision in the trademark statute constituted viewpoint discrimination and failed strict scrutiny. The district judge's decision was rendered before the Supreme Court's opinion, but she had rejected the applicability of the en banc Federal Circuit's opinion in In Re Simon Shiao Tam because she concluded the lunch program was a nonpublic forum. For the Second Circuit, however, the rejection of Wandering Dago's application based on viewpoint merited strict scrutiny under the First Amendment whether or not that "speech is categorized as commercial speech, speech in a public forum, or speech in a nonpublic forum."
Moreover, the Second Circuit held that the government's rejection of the lunch truck was not shielded by the doctrines of government speech (or government contractor speech). The district judge had held that the lunch program was "government speech," relying on Walker v. Texas Sons of Confederate Veterans in which the Court found that Texas's program of specialty license plates was government speech and therefore not subject to the First Amendment. The Second Circuit opinion contains a full discussion of the record, but ultimately finds it "implausible" that the public would view the Wandering Dago truck as New York's speech. The Second Circuit again analogized to Matal v Tam, in which the Court rejected a government speech claim. As in Matal, the United States government did not "dream up" the trademarks, it "merely registered them," and similarly here, the New York Office of Government Services did not "dream up" the food truck's branding.
The Second Circuit applied strict scrutiny, even while noting that New York did not argue it could satisfy the standard, in order to "complete the analytical picture." Not surprisingly, the court found that the denial of the permit failed strict scrutiny.
More surprisingly, the Second Circuit also reversed the district judge's grant of summary judgment to the government on the Equal Protection Clause claim. In a brief passage, the court found that there was selective enforcement of the permit scheme with "intent to inhibit or punish the exercise of constitutional rights." This finding rested on New York's granting of permits to other vendors applying to participate in the Lunch Program, including the “Slidin’ Dirty” truck. Thus, the court concluded that Wandering Dago was being discriminated against for its free speech constitutional rights "in branding itself and its products with ethnic slurs."
While it is possible that New York will seek certiorari, it seems more likely that the state will accede to the decision and perhaps change its lunch program to make it less a permit scheme and more a government-sponsored "speech" event.
Today brings the news that the President is contemplating litigation to halt the publication of Fire and Fury:Inside the Trump White House by Michael Wolff. This followed a reported cease and desist letter to former White House "chief strategist" and insider Steve Bannon for talking with Wolff in alleged violation of a nondisclosure agreement.
The letter to the book's publisher is reportedly based on a claim of defamation:
“Actual malice (reckless disregard for the truth) can be proven by the fact that the Book admits in the Introduction that it contains untrue statements. Moreover, the Book appears to cite to no sources for many of its most damaging statements about Mr. Trump. Also, many of your so-called ‘sources’ have stated publicly that they never spoke to Mr. Wolff and/or never made the statements that are being attributed to them. Other alleged ‘sources’ of statements about Mr. Trump are believed to have no personal knowledge of the facts upon which they are making statements or are known to be unreliable and/or strongly biased against Mr. Trump.”
But behind the obvious relevance of New York Times v. Sullivan (1964) which set the doctrine of actual malice for defamation under the First Amendment, lurks another case involving the New York Times: New York Times v. United States (1971), often called the "Pentagon Papers Case."
It is the Pentagon Papers Case that solidified the disfavor for prior restraint.
The brief per curiam opinion in the 6-3 decision stated that there is "a heavy presumption against its constitutional validity," and the government "thus carries a heavy burden of showing justification for the imposition of such a restraint." While it is certainly the United States government that is a party to the Pentagon Papers Case, most commentators and scholars believe that it was President Nixon who was at the forefront of the attempt to stop publication of the papers. Arguably, the Pentagon Papers involved "state secrets," but President Trump, like Nixon, has been criticized as conflating his own interests with that of the government.
It's thus a good time to reconsider the continuing relevance of the case and its litigation. One perspective is available in the movie The Post involving the Pentagon Papers and starring Meryl Streep as Katharine Graham, the publisher of The Washington Post.
Another good perspective is a recent conversation between James C. Goodale, author of Fighting for the Press: the Inside Story of the Pentagon Papers and Other Battles and Jeremy Scahill, one of the founders of The Intercept and author of Dirty Wars: The World Is a Battlefield, which I moderated at CUNY School of Law.
Here's the video:
January 4, 2018 in Books, Campaign Finance, Conferences, Current Affairs, Executive Authority, First Amendment, News, Separation of Powers, State Secrets, Supreme Court (US) | Permalink | Comments (0)
Wednesday, January 3, 2018
With the termination by Executive Order of the Presidential Advisory Commission on Election Integrity, also known as the "voter fraud commission," it's a good time to (re)read Atiba Ellis's article from 2014, The Meme of Voter Fraud.
Professor Ellis argues that "meme theory" offers a useful methodology to analyze the origins, evolution, and persistence of voter fraud rhetoric. For Ellis, a "meme" is not only a cute internet cat photo with changing words, but an "idea that spreads from person to person within a culture and replicates along with other ideas to form an ideology or worldview." The meme of "voter fraud" on his account is the latest iteration of the ideology that some people are deemed “unworthy” of the vote.
Ellis addressed the relevancy of the meme of voter fraud as it was being deployed by Trump shortly after the 2016 election (and which led to the creation of the commission). Ellis wrote that the problem with Trump's use of the voter fraud meme is that
It seeks to rig our thinking about democracy. Because a meme persuades through appeal and not logic, makes facts completely irrelevant when the story is too good. This doesn’t matter much with cat videos, but Mr. Trump’s rigged election meme are dangerous because they detach us from facts as our basis for making real-world decisions.
To believe that millions of certain voters are illegitimate simply because someone says so is to trade in an ideology of exclusion. America did this for the majority of its history with the effect of excluding women, African Americans, and naturalized immigrants in favor of property-holding white men.
While the termination of the presidential commission might be seen as a rejection of the voter fraud meme, the official Statement of the Press Secretary is less than a disavowal:
Despite substantial evidence of voter fraud, many states have refused to provide the Presidential Advisory Commission on Election Integrity with basic information relevant to its inquiry. Rather than engage in endless legal battles at taxpayer expense, today President Donald J. Trump signed an executive order to dissolve the Commission, and he has asked the Department of Homeland Security to review its initial findings and determine next courses of action.
This claim of "substantial evidence" seems to indicate that meme persists.
UPDATE: The President's tweets, which arguably have the status of official statements, confirm that the meme of voter fraud has not been abandoned:
Many mostly Democrat States refused to hand over data from the 2016 Election to the Commission On Voter Fraud. They fought hard that the Commission not see their records or methods because they know that many people are voting illegally. System is rigged, must go to Voter I.D.— Donald J. Trump (@realDonaldTrump) January 4, 2018
As Americans, you need identification, sometimes in a very strong and accurate form, for almost everything you do.....except when it comes to the most important thing, VOTING for the people that run your country. Push hard for Voter Identification!— Donald J. Trump (@realDonaldTrump) January 4, 2018
Tuesday, January 2, 2018
While our recent attention has been focused on the character and the lack of gender diversity of those who occupy judicial positions, the question of the role of the judiciary in a constitutional democracy is broader. In an article entitled Judicial Review and Sexual Freedom published over a decade ago, I discussed the common conceptions that judicial review was the United States' most renowned legal export while exploring the ways in which it remained contested in the area of basic sexual equality. In his forthcoming article in Tulane Law Review, Judicial Supremacy in Comparative Constitutional Law, Manoj Mate "challenges the prevailing conception of judicial supremacy in comparative constitutional law as informed by U.S. and western models of constitutionalism, and argues for reconceptualizing judicial supremacy in a way that captures the broader range of institutional roles courts play globally."
Mate seeks to reorient the discussion from "interpretative supremacy" ("the degree to which constitutional courts serve as the exclusive and final interpreter of the Constitution, or decisional supremacy") to "institutional supremacy" (the role of courts in judicial review of constitutional amendments, entrenching constitutional norms and principles, and even structuring government and litigation).
Mate takes as his central example the Supreme Court of India - - - which has one woman out of its 25 judges - - - and discusses in detail the cases and circumstances which lead to the present situation in which "India remains the only constitutional system in the world in which the Chief Justice of India (and the collegium of justices) enjoy primacy in judicial appointments." The Supreme Court of India has also played a determining role in curbing government corruption and managing public interest litigation.
Mate interestingly argues that the "supremacy of the Indian Supreme Court is not purely a product of the assertion of political power by political regimes who construct judicial review to advance political or partisan agendas and goals," but instead has operated in the particular conditions of India as a powerful force "for protecting constitutionalism and optimizing governance." In short, judicial review has not operated as anti-democratic but as staunchly democratic.
Mate concludes that India's "more pragmatic model of judicial supremacy" can be a model "for newer constitutional democracies across the globe." But Mate's article opens with a statement from Presidential advisor Stephen Miller in reference to judicial decisions regarding the constitutionality of the presidential travel ban as examples of judges taking "power for themselves that belongs squarely in the hands of the president of the United States." When criticism of the judicial role is heightened, it does seem fitting that judges must act pragmatically to protect democracy.
[Supreme Court of India building via]
Monday, January 1, 2018
Recall that Chief Justice Roberts' 2017 year-end report on the judiciary included an announcement of a working group to address the "depth of sexual harassment" in the judicial workplace. One might hope that the working group also addresses the seeming backtracking of the commitment to diversify the federal bench with regards to gender, as well as other disproportionately underrepresented people. Perhaps this new working group will re-examine the plethora of gender bias in the courts reports - - - and responses to them - - - from previous decades. (For a good discussion and survey see, Rena M. Atchison, A Comparison of Gender Bias Studies: Eighth Circuit Court of Appeals and South Dakota Findings in the Context of Nationwide Studies, 43 S.D. L. Rev. 616 (1998)).
While not focusing on judicial diversity or sexual harassment specifically, Professor Susie Salmon (University of Arizona College of Law) argues that the problem of women's persistent inequality in the legal profession is rooted in classical notions of what it means to be a judge and advocate. In her article Reconstructing the Voice of Authority, 51 Akron Law Review 143 (2017), Salmon begins by quoting famous feminist classicist Mary Beard who has written tellingly about the mythic Penelope, the first woman in recorded Western history to be told to be quiet (and by her son). Salmon argues
until we stop indoctrinating law students that a “good lawyer” looks, sounds, and presents like the Classical warrior—that is, a male—these barriers will persist. For many law students, the first place they get to model what it means to look, sound, and act like a lawyer is in moot court or other oral-argument exercises. Especially in light of an overall law-school culture that reinforces the significance of inborn abilities, it is not hard to see how moot court’s frequent emphasis on “natural” oral-advocacy talent, and its implicit connection of that talent to traits traditionally associated with men, can influence how students—and later lawyers—develop rigid conceptions of what a good lawyer looks, sounds, and acts like. And continuing to uncritically teach the values of Classical rhetoric—values inherited from a culture that silenced women’s voices in the public sphere—exacerbates the problem.
Her concentration on moot court comes two decades after Mairi N. Morrison, May It Please Whose Court?: How Moot Court Perpetuates Gender Bias in the “Real World” of Practice, 6 UCLA WOMEN’S L.J. 49 (1995), and essentially asks why things have not changed.
Perhaps it is because there is a continued effort to police women's voices. As Salmon states:
And, as modern moot- court wisdom would have it, the voice of authority is still a deep and resonant one. No lesser authorities than U.S. Supreme Court Justice Antonin Scalia and noted legal-writing expert Bryan Garner advise advocates to spend time on efforts to lower their vocal pitch, opining that “a high and shrill tone does not inspire confidence.” Scalia and Garner hardly stand alone; advice about lowering vocal register pervades books and articles on effective oral advocacy. Even those oral-advocacy experts who explicitly acknowledge the sexism that may underlie the connection between low voices and authority nonetheless counsel advocates to speak in the lower end of their vocal range.
Sunday, December 31, 2017
In his 2017 Year-End Report on the Federal Judiciary United States Supreme Court Chief Justice concentrated on disaster-preparedness, stating that
we cannot forget our fellow citizens in Texas, Florida, Puerto Rico, and the Virgin Islands who are continuing to recover from Hurricanes Harvey, Irma, and Maria, and those in California who continue to confront historic wildfires and their smoldering consequences. The courts cannot provide food, shelter, or medical aid, but they must stand ready to perform their judicial functions as part of the recovery effort.
As part of the effort to maintain judicial functions, Roberts' noted that the Administrative Office of the United States Courts has established an Emergency Management and Preparedness Branch, including having response teams. He added:
I recognize that this might sound like trying to fight fire with administrative jargon. But imagine yourself one of a handful of employees of the bankruptcy court in Santa Rosa, California, when raging wildfires suddenly approach the courthouse where you work and state officials order evacuation—as happened this past September. The staff members did not face the emergency alone; they had at their disposal a professional response team to assist in making quick decisions to protect personnel, relocate services, and ensure continuity of operations.
He also lauded the oft-forgotten territories in the United States that have been coping with the after-effects of disaster:
The hurricanes brought flooding, power outages, infrastructure damage, and individual hardship to Texas and Florida. But the judicial districts of the Virgin Islands and Puerto Rico were especially hard hit. Judges and court employees responded in dedicated and even heroic fashion. They continued to work even in the face of personal emergencies, demonstrating their commitment to their important public responsibilities.
Roberts' ended the 16 page report with a segue to the "new challenge" of dealing with the "depth of sexual harassment."
Events in recent months have illuminated the depth of the problem of sexual harassment in the workplace, and events in the past few weeks have made clear that the judicial branch is not immune. The judiciary will begin 2018 by undertaking a careful evaluation of whether its standards of conduct and its procedures for investigating and correcting inappropriate behavior are adequate to ensure an exemplary workplace for every judge and every court employee.
I have asked the Director of the Administrative Office to assemble a working group to examine our practices and address these issues. I expect the working group to consider whether changes are needed in our codes of conduct, our guidance to employees—including law clerks—on issues of confidentiality and reporting of instances of misconduct, our educational programs, and our rules for investigating and processing misconduct complaints. These concerns warrant serious attention from all quarters of the judicial branch. I have great confidence in the men and women who comprise our judiciary. I am sure that the overwhelming number have no tolerance for harassment and share the view that victims must have clear and immediate recourse to effective remedies.
Roberts' is undoubtedly responding to the high-profile resignation of Ninth Circuit Judge Alex Kozinski and public letters from former law clerks, professors, and others to address the issue of inappropriate conduct by federal judges.
What might have also been in the report? The need for diversity among Article III judges, especially given the tendency of the recent and current nominations to be white and male.
Wednesday, December 27, 2017
D.C. Circuit Declines to Halt Election Integrity Commission Request for Voter Information for Lack of Standing
The D.C. Circuit ruled that the Electronic Privacy Information Center lacked standing to obtain an injunction halting a request by the Presidential Advisory Commission on Election Integrity for voter information from the states. The district court ruled earlier that EPIC had standing, but was unlikely to succeed on the merits, because the Commission wasn't an "agency" under the Administrative Procedure Act. The D.C. Circuit ruling has the same effect--denial of a preliminary injunction--but for a different reason: EPIC hasn't demonstrated a substantial likelihood of standing.
The ruling is only on EPIC's motion for a preliminary injunction. But EPIC's lack of standing at this preliminary stage may also mean that it (later) lacks standing to bring the claim at all. Based on the D.C. Circuit's ruling, it seems that only voters themselves, or an organization that represents voters, would have standing to bring this kind of claim.
EPIC initially brought the case to challenge the Commission's request for voter information without first conducting, and producing, a privacy impact assessment under the E-Government Act. EPIC argued that it was entitled to the assessment, and that its failure to receive it formed the basis of its standing.
The D.C. Circuit rejected that argument. The court ruled that EPIC lacked both informational injury and organizational injury. As to the former, informational injury, the court said that EPIC "has not suffered the type of harm that section 208 of the E-Government Act seeks to prevent. Indeed, EPIC is not even the type of plaintiff that can suffer such harm." The court said that section 208 was designed to protect the privacy of individuals (here, voters), not an organization like EPIC, an organization that does not have members (much less voter members) and whose only interest is in "ensur[ing] public oversight of record systems."
As to organizational injury, the court said that, because the E-Government Act doesn't confer an informational interest on EPIC (as above), EPIC can't ground organizational injury on the Act. "It follows that any resources EPIC used to counteract the lack of a privacy impact assessment--an assessment in which it has no cognizable interest--were "a self-inflicted budgetary choice that cannot qualify as an injury in fact." Moreover, the Commission's request for voter information without an assessment didn't cause EPIC to take any particular measures.
Finally, the court said that halting the Commission's collection of voter data wouldn't likely redress any informational or organizational injury, anyway. That's because ordering the Commission to halt its collection of information--assuming the Commission is subject to the Act--"only negates the need (if any) to prepare an assessment, making it less likely that EPIC will obtain the information it says is essential to its mission of "focus[ing] public attention on emerging privacy and civil liberties issues."
Friday, December 22, 2017
In the latest installment in the continuing saga of President Trump's various efforts to promulgate a travel ban, often called a Muslim Ban, the Ninth Circuit opinion in Hawai'i v. Trump has largely affirmed the preliminary injunction issued by District Judge Derrick Watson enjoining the Presidential Proclamation 9645, entitled “Enhancing Vetting Capabilities and Processes for Detecting Attempted Entry Into the United States by Terrorists or Other Public-Safety Threats”of September 24, 2017.
Recall that the United States Supreme Court, over the stated disagreement of Justices Ginsburg and Sotomayor, issued a stay of the district judge's opinion earlier this month, as well as a stay in the related proceedings in the Fourth Circuit in IRAP v. Trump.
The unanimous Ninth Circuit panel does not disturb the status quo: "In light of the Supreme Court’s order staying this injunction pending 'disposition of the Government’s petition for a writ of certiorari, if such writ is sought,' we stay our decision today pending Supreme Court review." The Ninth Circuit does, however, narrow the district judge's injunction, to "give relief only to those with a credible bona fide relationship with the United States."
On the merits, the Ninth Circuit does not reach the constitutional claims including the Establishment Clause, unlike the Fourth Circuit in IRAP v. Trump, because it finds that the plaintiffs' statutory claims are sufficient to grant relief.
Yet the complex statutory framework of the Immigration and Nationality Act, INA, does implicitly invoke the scope of executive powers. In short, the Ninth Circuit finds that the Presidential Proclamation’s indefinite entry suspensions constitute nationality discrimination in the issuance of immigrant visas and therefore (in likelihood sufficient for the preliminary injunction) run afoul of 8 U.S.C. § 1152(a)(1)(A)’s prohibition on nationality-based discrimination. As the Ninth Circuit opinion observes:
the Proclamation functions as an executive override of broad swaths of immigration laws that Congress has used its considered judgment to enact. If the Proclamation is—as the Government contends—authorized under [8 U.S.C.] § 1182(f), then § 1182(f) upends the normal functioning of separation of powers. Even Congress is prohibited from enabling “unilateral Presidential action that either repeals or amends parts of duly enacted statutes.” Clinton v. City of New York, 524 U.S. 417, 439 (1998). This is true even when the executive actions respond to issues of “first importance,” issues that potentially place the country’s “Constitution and its survival in peril.” Id. at 449 (Kennedy, J., concurring). In addressing such critical issues, the political branches still do not “have a somewhat free hand to reallocate their own authority,” as the “Constitution’s structure requires a stability which transcends the convenience of the moment” and was crafted in recognition that “[c]oncentration of power in the hands of a single branch is a threat to liberty.” Id. at 449–50.
And the Proclamation’s sweeping assertion of authority is fundamentally legislative in nature. . . .
Recall that a few months ago, after granting certiorari in Hawai'i v. Trump, the United States Supreme Court instructed the Ninth Circuit to dismiss as moot the challenge to Travel Ban 2.0. It looks as if the Court will now have its chance to consider version 3.o.
December 22, 2017 in Cases and Case Materials, Congressional Authority, Courts and Judging, Establishment Clause, Executive Authority, First Amendment, International, Opinion Analysis, Race, Recent Cases, Religion | Permalink | Comments (0)
Thursday, December 21, 2017
The ruling ends the case, unless and until it's appealed.
The case arose when CREW and other plaintiffs (including hotel- and restaurant-owners who compete with Trump properties) sued the President for accepting gifts and emoluments from foreign and domestic sources without congressional approval, in violation of the Emoluments Clause. The plaintiffs sought declaratory and injunctive relief.
The government argued that the plaintiffs lacked standing and that the case should be dismissed. Today Judge George B. Daniels (S.D.N.Y.) agreed.
The court said the "hospitality plaintiffs" lacked competitive standing, because they didn't sufficiently allege that President Trump's Emoluments Clause violations caused their injuries (lack of business due to competition with Trump properties) and that a successful suit would redress those injuries. The court explained:
Here, the Hospitality Plaintiffs argue that Defendant has adopted "policies and practices that powerfully incentivize government officials to patronize his properties in hopes of winning his affection." Yet . . . it is wholly speculative whether the Hospitality Plaintiffs' loss of business is fairly traceable to Defendant's "incentives" or instead results from government officials' independent desire to patronize Defendant's businesses. Even before Defendant took office, he had amassed wealth and fame and was competing against the Hospitality Plaintiffs in the restaurant and hotel business. It is only natural that interest in his properties has generally increased since he became President. As such, despite any alleged violation on Defendant's part, the Hospitality Plaintiffs may face a tougher competitive market overall. Aside from Defendant's public profile, there are a number of reasons why patrons may choose to visit Defendant's hotels and restaurants including service, quality, location, price and other factors related to individual preference. Therefore, the connection between the Hospitality Plaintiffs' alleged injury and Defendant's actions is too tenuous to satisfy Article III's causation requirement.
[Moreover,] Plaintiffs are likely facing an increase in competition in their respective markets for business from all types of customers--government and non-government customers alike--and there is no remedy this Court can fashion to level the playing field for Plaintiffs as it relates to overall competition. . . . [T]he Emoluments Clauses prohibit Defendant from receiving gifts and emoluments. They do not prohibit Defendant's businesses from competing directly with the Hospitality Plaintiffs.
The court went on to hold that the Hospitality Plaintiffs weren't within the zone of interests protected by the Emoluments Clause.
The court also held that CREW lacked standing, because its alleged harm (diversion of resources to monitor and respond to the President's Emoluments Clause violations) wasn't sufficient. "Here, CREW fails to allege either that Defendant's actions have impeded its ability to perform a particular mission-related activity, or that it was forced to expend resources to counteract and remedy the adverse consequences or harmful effects of Defendant's conduct. CREW . . . may have diverted some of its resources to address conduct it may consider unconstitutional, but which has caused no legally cognizable adverse consequences, tangible or otherwise, necessitating the expenditure of organizational resources."
Finally, the court ruled that the case raised a nonjusticiable political question (because of the Emolument Clause's textual commitment to a coordinate branch of government, Congress) and that the case wasn't ripe (because "a conflict between two coordinate branches of government . . . has yet to mature").