Wednesday, April 4, 2018
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, continues to provoke litigation. Recall that soon after the late March announcement, California v. Ross challenged the constitutionality of the change as violating the Constitution's requirement of “actual Enumeration” of all people in each state every ten years for the sole purpose of apportioning representatives among the states. U.S. Const. art. I, § 2, cl. 3, and amend. XIV, § 2.
An additional complaint filed in the Southern District of New York, New York v. United States Department of Commerce, raises the same constitutional objection 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, with the second count regarding the government's decision as contrary to the constitution and law including arguments regarding the "actual enumeration" requirement.
Additionally, the NAACP has filed a complaint in the District of Maryland, NAACP v. Bureau of the Census, with one count based on the "actual enumeration" requirement. The NAACP complaint stresses the risks of an undercount of racial and ethnic minorities, and opens thusly:
Article I, Section 2 of the United States Constitution imposes one of the few affirmative obligations on the federal government: to conduct an “actual Enumeration” of all residents every ten years. Despite this duty, the United States has undercounted people of color since the nation’s founding, starting with the decision to treat African American slaves as only three-fifths of a person. The Three-Fifths Clause appeared in the same constitutional provision that mandates a decennial census.
Tuesday, March 27, 2018
The Commerce Department has announced that the 2020 Decennial Census Questionnaire will include a citizenship question, which the census has not included since 1950. Commerce Secretary Wilbur Ross announced the change of policy in a letter which states the change is at the request of the Department of Justice (DOJ) in order to gather data regarding the "citizenship voting age population" (CVAP) to determine violations of section 2 of the Voting Rights Act (VRA).
The first count of the complaint in California v. Ross alleges a constitutional violation:
- The Constitution requires the “actual Enumeration” of all people in each state every ten years for the sole purpose of apportioning representatives among the states. U.S. Const. art. I, § 2, cl. 3, and amend. XIV, § 2.
- By including the citizenship question on the 2020 Census, Defendants are in violation of the “actual Enumeration” clause of the Constitution. Because the question will diminish the response rates of non-citizens and their citizen relatives, California, which has the largest immigrant population in the country, will be disproportionately affected by the census undercount. Inclusion of the question thus directly interferes with Defendants’ fulfillment of their constitutional responsibility, as delegated by Congress, to conduct an “actual Enumeration” of the U.S. population.
- This Violation harms the State of California and its residents, given that the State is entitled under the Constitution to a proportionate share of congressional representatives based on its total population.
In support of diminished response rates and the resultant undercount, the complaint includes in its allegations statements from the letter of Secretary Ross (as well as attaching the letter) in which Ross states that he
"carefully considered the argument that the reinstatement of the citizenship question on the decennial census would depress response rate. Because a lower response rate would lead to increased non—response follow—up costs and less accurate responses,this factor was an important consideration in the decision-making process. I find that the need for accurate citizenship data and the limited burden that the reinstatement of the citizenship question would impose outweigh fears about a potentially lower response rate."
In other words, a lower response rate is acceptable. Although the Ross letter continues that "limited empirical evidence exists about whether adding a citizenship question would decrease response rates materially." Exhibit 2 to the Complaint is a Memorandum from the Center for Survey Measurement (CSM), a division within the Census Bureau, which raised concerns in September 2017 regarding response rates in current conditions even before the citizenship question would be added.
The Constitution Accountability Center's David Gans has a rather extensive memo posted last week, The Cornerstone of Our Democracy: The Census Clause and the Constitutional Obligation to Count All Persons, which uses originalist and practical rationales to argue that a citizenship question on the census is unconstitutional.
[image: Norman Rockwell, The Census Taker]
Thursday, February 1, 2018
The President's Proclamation of February as National African American History Month for 2018 provides that:
This annual observance is an opportunity to remember the challenges of our past, but also to honor countless African-American heroes who inspire us to shape our country’s future. This year’s theme, “African Americans in Times of War,” calls our attention to the heroic contributions of African Americans during our Nation’s military conflicts, from the Revolutionary War to present-day operations.
This focus on war-time includes a reference to President Harry S. Truman in 1948 who "ordered desegregation of the military providing 'equality of treatment and opportunity for all persons in the Armed Forces without regard to race, color, religion or national origin.'" It mentions the "obligation to the self-evident truth of equality written into the Declaration of Independence," but interestingly does not mention the Constitution. It specifically mentions three members of the military.
It ends thusly:
These and countless other African Americans triumphed over ignorance, oppression, and injustice to make indelible contributions, not only to our military history, but even more importantly to our American history. They are an integral part of our Nation’s story. We are indebted to the individual and collective perseverance and patriotism of these outstanding men and women, as we are to all African Americans who have served, and continue to serve in the Armed Forces of this great Nation.
Wednesday, January 24, 2018
In a Complaint filed in the United States District of Maryland in National Association for the Advancement of Colored People v. United States Department of Homeland Security, the NAACP challenges the Trump Administration's decision to rescind Temporary Protective Status (“TPS”) for Haitian immigrants, as a violation of equal protection. The complaint argues that the rescission springs from an intent to discriminate on the basis of race and/or ethnicity.
Essentially COUNT I of the Complaint, based on the equal protection component of the Fifth Amendment, contents that there is sufficient governmental intent so that the classification should be deemed as a racial one. As ¶88 provides:
The inference of race and/or ethnicity discrimination is supported by the Administration’s departure from the normal decision-making process; the fact that the decision bears more heavily on one race than another; the sequence of events leading to the decision; the contemporaneous statements of decisionmakers; and the historical background of the decision. The Supreme Court has recognized these factors as probative of intentional discrimination. See Vill. of Arlington Heights v. Metro. Hous. Development Corp., 429 U.S. 252 (1977).
Subsequent paragraphs of the complaint track these Arlington Heights factors with more specificity. Earlier, the complaint in ¶ 79 mentions the President's notorious comments:
On January 11, 2018, during a White House meeting with several U.S. Senators, the President is alleged to have disparaged a draft immigration plan that protected people from Haiti, El Salvador, and some African countries, asking, “Why are we having all these people from shithole countries come here?”President Trump is alleged to have further disparaged Haitians in particular, asking “Why do we need more Haitians?” and ordered the bill’s drafters to “take them out.”In this meeting, the President is further alleged to have expressed his preference for more immigrants from places like Norway, where the population is over 90 percent white. Haiti’s population, by contrast, is over 95 percent Black.
[footnotes omitted]. If there is a racial classification, the court would apply strict scrutiny requiring a compelling governmental interest that is served by narrowly tailored means.
Interestingly, the equal protection count also includes this simple statement and citation: "The Due Process Clause of the Fifth Amendment also prohibits irrational government action. U.S. Dep’t of Agric. v. Moreno, 413 U.S. 528 (1973)." Recall that the Court in Moreno found that a Congressional statute defining households for foodstamp eligibility as only including relatives - - - in order to exclude "hippie communes" - - - was irrational because a bare "desire to harm a politically unpopular group" could not constitute a legitimate government interest. This "animus" doctrine, also evident in cases like Romer v. Evans and United States v. Windsor, is another way that the challengers could prevail on their equal protection claim. Thus, even if the court does not find there is a racial (or ethnic) classification meriting strict scrutiny, the court could decide that there is sufficient animus here to negate the legitimate interest required under rational basis, the most lenient standard.
It will be interesting to see how the Department of Justice responds. Meanwhile, ConLawProfs teaching equal protection this semester could use this as the basis for a great problem.
Friday, January 19, 2018
The United States Supreme Court has granted the Trump Administration's petition for certiorari to the Ninth Circuit's opinion in Hawai'i v. Trump regarding 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, also known as Travel Ban 3.0, or Muslim Ban 3.0. The Ninth Circuit, affirming a district judge, found Travel Ban 3.0 unlawful under the Immigration and Nationality Act.
The United States Supreme Court will also be considering the Establishment Clause issue. Recall that the Ninth Circuit did not reach the Establishment Clause issue. However, the United States Supreme Court's grant of certiorari states that the parties are directed to brief and argue Question 3 presented by the opposition brief of Hawai'i. That question presented is simply phrased: "Whether Proclamation 9645 violates the Establishment Clause."
Recall that the United States Supreme Court previously granted certiorari in Hawai'i v. Trump, as well as IRAP v. Trump from the Fourth Circuit regarding Travel Ban 2.0, but then remanded the cases to be dismissed as moot when that Executive Order was replaced by the current incarnation.
One important issue in the Establishment Clause litigation is whether the travel ban "targets" a particular religion. Somewhat similarly, an important issue under the Immigration and Nationality Act is whether the travel ban constitutes "nationality discrimination."
These issues have involved consideration of whether the "taint" of statements from candidate Trump and President Trump during the earliest days of the Administration would continue to be viable to this third iteration of the travel ban. It is also likely that much more recent statements allegedly made by the President regarding immigration will be raised.
Monday, January 15, 2018
Oppenheimer mentions the plans of the President and Attorney General Sessions to challenge affirmative action policies in higher education as a form of discrimination against white people and predicts that they will eventually use Dr. King’s “I Have A Dream” speech as evidence that Dr. King would be supporting their position if he were still alive. The President's Proclamation for MLK Day does not mention affirmative action (or civil rights), but does allude to King's most famous speech by including the arguably "color-blind" rejecting judgment based on "color of their skin" in favor of "content of their character." (The Proclamation states "Dr. King advocated for the world we still demand — where the sacred rights of all Americans are protected, rural and urban communities are prosperous from coast to coast, and our limits and our opportunities are defined not by the color of our skin, but by the content of our character.")
Yet as Professor Oppenheimer argues it is simplistic - - - and incorrect - - - to conclude that Martin Luther King's political theorizing can be reduced to a convenient "color-blind" position. Oppenheimer writes:
While I have found no instance of Rev. Dr. Martin Luther King, Jr. ever using the term “affirmative action,” forty-eight years after his assassination his name is often invoked in the affirmative action debate by opponents of race-based affirmative action, who cite Dr. King’s “I have a dream” speech as evidence that he supported “color-blind” policies, and thus presumably would have opposed race-conscious affirmative action. But when we examine the historical record it is clear that while Dr. King dreamed of a time when racism – and thus race – would be irrelevant, he was a supporter of both of these forms of affirmative action. On the one hand, he spent much of the last six years of his life actively promoting what we would describe today as race-conscious affirmative action, including the use of racial quotas in employment. Specifically, from 1962-68 Dr. King orchestrated and implemented “Operation Breadbasket,” a civil rights boycott campaign that demanded employment quotas for Black American workers based on their numbers in a workforce, neighborhood or city. Yet on the other hand, with regard to class-based affirmative action, Dr. King supported a massive war on poverty. In advocating for special benefits for poor Americans he sometimes used color-blind language and pointed out that it would benefit poor whites as well as poor Blacks, while at other times he justified it as an example of the kind of reparations to which Black Americans were entitled under the equitable remedy of restitution for unpaid wages.
In his discussion of the constitutional law doctrine and theory surrounding affirmative action, Oppenheimer includes the United States Supreme Court's reaction to organized efforts to mandate affirmative action in Hughes v. Superior Court for Contra Costa County (1948) in which the Court stated:
that the picketing here involved, and upon which the judgment of contempt is based, was for the attainment of an unlawful objective, viz.: not to induce Lucky [grocery store] not to discriminate against, but, rather, expressly to compel Lucky to discriminate arbitrarily in favor of, one race as against all others in the hiring of a portion of its clerks; and that therefore the injunction was properly issued and the judgment of contempt should stand. With this position, upon the record here, we must agree.
Oppenheimer writes that while the Supreme Court was willing to affirm the legitimacy of protesting discrimination, but unwilling to give any approval to demands for proportional hiring, the demands for "proportional hiring nonetheless persisted, and would become a critical part of Dr. King’s campaign for racial justice in the last six years of his life."
It seems pretty clear that MLK supported what is now known as "affirmative action."
Saturday, January 13, 2018
In a very brief opinion in Niang v. Caroll, a unanimous panel of the Eighth Circuit affirmed a district judge's grant of summary judgment to Missouri against a challenge to the state's licensing requirements for "African-style hair braiders." In short, the Missouri statutes require a license for barbers and cosmetologists that is granted only to those who complete a "costly and time-intensive training course - - - 1,000-hours for barbering and 1,500-hours for hairdressing" and passage of exam. Moreover, Missouri conceded that "only about 10 percent of the required training courses is relevant to African-style braiders, and that almost all the exams do not test on braiding."
The Eighth Circuit applied the most deferential of rational basis standards. In rejecting the challengers' argument that the license requirement was not rationally related to any legitimate government interest, the court not only found that the state interests of protecting consumers and ensuring public health and safety were legitimate, but also recognized two other interests supplied by the district judge: stimulating more education on African-style braiding and incentivizing braiders to offer more comprehensive hair care. As to the means chosen, the Eighth Circuit found that it was sufficiently reasonable: "the fit between the licensing requirement and the State’s interest is imperfect, but not unconstitutionally so."
The Eighth Circuit also rejected the Equal Protection argument focused on the classification between braiders and barbers/cosmetologist, finding that the statutory definitions of "hair dressing" included braiding.
Lurking beneath the litigation, of course, is the racial classification, but this remains unaddressed. Indeed, it would be a difficult argument on which to prevail absent other facts.
For Constitutional Law professors looking for a good example of "anything goes" rational basis as exemplified by Railway Express Agency v. New York (1949) (which the Eighth Circuit does not cite), as well as Dandridge v. Williams (1970) and Heller v. Doe (1997), both of which the court does cite, this brief opinion is noteworthy.
For persons who want to practice the profession of braiding without being subject to onerous and irrelevant licensing requirements, the remedy may have to be in the legislature.
[image by Chidi "Lex Ash" Ashimole via]
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
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
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
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.
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)
Tuesday, October 24, 2017
In an Order today the Court brought the litigation in Hawai'i v. Trump on Muslim Ban/Travel ban 2.0 to a close. The Order provides:
We granted certiorari in this case to resolve a challenge to the temporary suspension of entry of aliens and refugees under Section 2(c) and Section 6 of Executive Order No. 13,780. Because those provisions of the Order have “expired by [their] own terms,” the appeal no longer presents a “live case or controversy.” Burke v. Barnes, 479 U. S. 361, 363 (1987). Following our established practice in such cases, the judgment is therefore vacated, and the case is remanded to the United States Court of Appeals for the Ninth Circuit with instructions to dismiss as moot the challenge to Executive Order No. 13,780. United States v. Munsingwear, Inc., 340 U. S. 36, 39 (1950). We express no view on the merits.
Justice Sotomayor dissents from the order vacating the judgment below and would dismiss the writ of certiorari as improvidently granted.
This Order replicates the Court's previous dismissal in IRAP v. Trump on October 10.
This does not end litigation on the issues.
Recall that so-called Muslim Ban/Travel Ban 2.0 has been replaced by so-called Muslim Ban/Travel Ban 3.0, 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. Like the previous iterations, this has been enjoined by federal judges in Hawai'i (Hawai'i v. Trump) and in Maryland (IRAP v. Trump).
Wednesday, October 18, 2017
A few hours after Hawai'i District Judge Derrick Watson granted a nationwide preliminary injunction in Hawai'i v. Trump in an extensive order based largely on statutory grounds, Maryland District Judge Theodore Chuang has also issued a nationwide injunction against the so-called "Muslim Ban 3.0" in an almost 100 page opinion in International Refugee Assistance Project (IRAP) v. Trump.
Recall that Judge Chuang had issued an injunction against the enforcement of Muslim Ban 2.0, which the en banc Fourth Circuit had affirmed finding that the plaintiffs have standing and that the plaintiffs are likely to succeed on the merits of their Establishment Clause challenge to the Executive Order. The United States Supreme Court, having granted certiorari to the case (as well as Hawai'i v. Trump), had recently vacated the Fourth Circuit opinion given the Government's suspension of version 2.0 of the "Muslim Ban" (President's March 6, 2017 Executive Order "Protecting The Nation From Foreign Terrorist Entry Into The United States" (now numbered EO 13,780), with 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, known colloquially as "Muslim Ban" or "Travel Ban" or EO "3.0."
In short, although there are some differences in this third iteration, including the addition of nationals from the countries of Chad, North Korea, and Venezuela, as well as Iran, Libya, Somalia, Syria, Yemen, Judge Chuang concluded that "Muslim Ban 3.0" suffered from the same constitutional infirmities as the previous bans.
Judge Chuang found that the Plaintiffs had standing and that parts on the Proclamation conflicted with the Immigration and Nationality Act, similar to the conclusions of Judge Watson in Hawai'i v. Trump. However, because the statutory claims were not sufficient to enjoin the challenge to nonimmigrantion visas, Judge Chuang proceeded to the constitutional claims.
On the Establishment Clause challenge, Judge Chuang ultimately concluded that the Plaintiffs had a likelihood of prevailing on the merits. The central question, as it had been previously, is the extent to which the President's motivation is a "Muslim Ban" and thus comes within the First Amendment's prohibition as most exemplified by McCreary County. v. ACLU of Kentucky (2005) and the first prong of the well-established test from Lemon v. Kurtzman (1971), essentially requiring a government act to have a secular purpose. Given that courts had previously held that the two previous iterations of the travel ban were motivated by anti-Muslim sentiment, Judge Chuang considered whether this new Proclamation was still tainted by that motivation or if it had been replaced by nuetral considerations such as national security. The "taint" does not persist forever, but neither should courts be "absentminded" as to the context.
Judge Chuang wrote:
Thus, while Defendants assert that the Proclamation’s travel ban was arrived at through the routine operations of the government bureaucracy, the public was witness to a different genealogy, one in which the President—speaking “straight to the American people,” — announced his intention to go back to and get even tougher than in EO-1 and EO-2. Notably, the June 5 tweet calling for a “much tougher version” reveals that even before President Trump had received any reports on the DHS Review that ostensibly identified the need for a travel ban, the first of which he received over a month later on July 9, 2017, the President had already decided that the travel ban would continue. His September 15, 2017 tweet calling for a “far larger, tougher” travel ban, issued the same day that that the final report was received, reinforced this position. . . . [The President's] statements
Here, those statements do not offer “persuasive” rejection of the President’s prior calls for a Muslim ban, or his stated intention to use a ban on certain “dangerous territory” to effectuate a Muslim ban, nor do they show that the stated intention to impose a Muslim ban has been “repealed or otherwise repudiated.” Rather, they cast the Proclamation as the inextricable re-animation of the twice-enjoined Muslim ban, and, in echoes of McCreary, convey the message that the third iteration of the ban—no longer temporary—will be the “enhanced expression” of the earlier ones.
[citations omitted]. Thus, Judge Chuang concluded that
where the Proclamation itself is not sufficiently independent of EO-2 to signal a purposeful, persuasive change in the primary purpose of the travel ban, and there were no other public signs that “as persuasively” as the original violation established a different primary purpose for the travel ban, it cannot find that a “reasonable observer” would understand that the primary purpose of the Proclamation’s travel ban is no longer the desire to impose a Muslim ban.
Having concluded that the Plaintiffs would likely prevail on the merits of the First Amendment claim, Judge Chuang did not discuss the Equal Protection challenge.
Judge Chuang issued an Order enjoining enforcement of section 2 of the Proclamation.
Like the injunction issued in Hawai'i v. Trump, this is sure to be appealed by the Trump Administration.
Tuesday, October 17, 2017
In the third iteration of the "Muslim Ban" or "Travel Ban" before the courts, federal District Judge Derrick Watson has issued an Order granting a nationwide preliminary injunction in Hawai'i v. Trump.
Recall that Judge Watson previously issued a preliminary injunction in Hawai'i v. Trump regarding a previous incarnation of the travel ban and that the United States Supreme Court has not yet disposed of the case to which it granted certiorari although it did vacate a similar Fourth Circuit case.
In today's Order and Opinion, Judge Watson began pointedly:
Professional athletes mirror the federal government in this respect: they operate within a set of rules, and when one among them forsakes those rules in favor of his own, problems ensue. And so it goes with EO-3.
The constitutional issues before the court involved standing of the States and of the individual plaintiffs. Given that the judge had previously held there was standing and there had been no substantial changes, Judge Watson unsurprisingly held there was standing. Judge Watson also held the claims were ripe and justiciable, rejecting the government's "troubling" contentions that the statutory challenges were not reviewable.
Judge Watson rests the likelihood to succeed on the merits conclusion on the statutory claims and did not discuss any constitutional issues. However, embedded in the statutory analysis is the question of Executive powers. For Judge Watson, EO-3 "improperly uses nationality as a proxy for risk" and its findings are "inconsistent with and do not fit the restrictions that the order actually imposes."
Judge Watson repeats the Plaintiffs' assertion that the President has never repudiated his early calls for a Muslim ban and that the "record has only gotten worse." In support, the Order's footnote 9 reads:
For example, on June 5, 2017, “the President endorsed the ‘original Travel Ban’ in a series of tweets in which he complained about how the Justice Department had submitted a ‘watered down, politically correct version’” to the Supreme Court. TAC ¶ 86 (quoting Donald J. Trump (@realDonaldTrump), Twitter (June 5, 2017, 3:29 AM EDT) https://goo.gl/dPiDBu). He further tweeted: “People, the lawyers and the courts can call it whatever they want, but I am calling it what we need and what it is, a TRAVEL BAN!” TAC ¶ 86 (quoting Donald J. Trump (@realDonaldTrump), Twitter (June 5, 2017, 3:25 AM EDT), https://goo.gl/9fsD9K). He later added: “That’s right, we need a TRAVEL BAN for certain DANGEROUS countries, not some politically correct term that won’t help us protect our people!” TAC ¶ 86 (quoting Donald J. Trump (@realDonaldTrump), Twitter (June 5, 2017, 6:20 PM EDT), https://goo.gl/VGaJ7z). Plaintiffs also point to “remarks made on the day that EO-3 was released, [in which] the President stated: ‘The travel ban: The tougher, the better.’” TAC ¶ 94 (quoting The White House, Office of the Press Sec’y, Press Gaggle by President Trump, Morristown Municipal Airport, 9/24/2017 (Sept. 24, 2017), https://goo.gl/R8DnJq).
Judge Watson enjoined the federal defendants from
"enforcing or implementing Sections 2(a), (b), (c), (e), (g), and (h) of the Proclamation issued on September 24, 2017, entitled “Enhancing Vetting Capabilities and Processes for Detecting Attempted Entry into the United States by Terrorists or Other Public-Safety Threats” across the Nation. Enforcement of these provisions in all places, including the United States, at all United States borders and ports of entry, and in the issuance of visas is prohibited, pending further orders from this Court."
The Judge also preemptively denied a stay in the case of emergency appeal - - - which will surely follow.
Tuesday, October 10, 2017
The United States Supreme Court issued an Order in Trump v. International Refugee Assistance Project (IRAP) bring the case to a close:
We granted certiorari in this case to resolve a challenge to“the temporary suspension of entry of aliens abroad under Section 2(c) of Executive Order No. 13,780.” Because that provision of the Order “expired by its own terms” on September 24, 2017, the appeal no longer presents a “live case or controversy.” Burke v. Barnes, 479 U. S. 361, 363 (1987). Following our established practice in such cases, the judgment is therefore vacated, and the case is remanded to the United States Court of Appeals for the Fourth Circuit with instructions to dismiss as moot the challenge to Executive Order No. 13,780. United States v. Munsingwear, Inc., 340 U. S. 36, 39 (1950). We express no view on the merits.
Justice Sotomayor dissents from the order vacating the judgment below and would dismiss the writ of certiorari as improvidently granted.
Recall that the en banc Fourth Circuit concluded that the plaintiffs have standing and that the plaintiffs are likely to succeed on the merits of their Establishment Clause challenge to the Executive Order. The main opinion was authored by Chief Judge Roger Gregory with six other judges joining in full. The case had proceeded directly to en banc from Maryland District Judge Theodore Chuang's Opinion and nationwide injunction .
Most likely, a similar order disposing on Hawai'i v. Trump will follow.
However, the new "travel ban" - - - the third attempt by the Trump Administration - - - has already been challenged.
Monday, October 9, 2017
The second Monday in October is designated as Columbus Day, the day that Italian mariner Christopher Columbus allegedly first saw the "New World," but is increasingly commemorated as Indigenous Peoples Day, recognizing that Native Americans did not necessarily benefit from European colonization.
A good read is Oneida Nation scholar Doug Kiel's article, Bleeding Out: Histories and Legacies of Indian Blood ” in The Great Vanishing Act: Blood Quantum and the Future of Native Nations (2017). Kiel writes of the European preoccupation with "blood" as a source of identity - - - and white supremacy - - - tracing it to the Spanish Inquisition and anxieties about"Christian blood" being contaminated by Jewish and Muslim blood. Moreover, he contrasts Native racial status to the "one-drop rule” of "African American hypodescent, according to which individuals of mixed ancestry only inherit the status of their black kin, with “African blood” polluting all other types of 'blood.'" On the other hand, “white blood” has the capacity to fully absorb “Indian blood" according to early cases, as well as more recent ones. For example, Kiel notes that Justice Alito's opinion for the Court in Adoptive Couple v. Baby Girl (the "Baby Veronica" case), begins by describing the blood quantum of the child: " (Baby Girl) who is classified as an Indian because she is 1.2% (3/256) Cherokee." Other possibilities for identity, including nationality and culture, are flattened.
The erasure of Native identity is one argument against the celebration of Columbus Day. Last year, in the Presidential Proclamation for Columbus Day, then-President Obama expressed recognition for the rationales of Indigenous People's Day:
As we mark this rich history, we must also acknowledge the pain and suffering reflected in the stories of Native Americans who had long resided on this land prior to the arrival of European newcomers. The past we share is marked by too many broken promises, as well as violence, deprivation, and disease. It is a history that we must recognize as we seek to build a brighter future -- side by side and with cooperation and mutual respect. We have made great progress together in recent years, and we will keep striving to maintain strong nation-to-nation relationships, strengthen tribal sovereignty, and help all our communities thrive.
In the Presidential Proclamation for Columbus Day this year, current-President Trump does not acknowledge Native or Indigenous peoples.
image: "My World is Not Flat,"
Tuesday, October 3, 2017
In oral arguments today in Gill v. Whitford, the United States Supreme Court confronted the constitutionality of gerrymandering on the basis of political party.
Recall that in an extensive opinion the three-judge court concluded that Wisconsin's "gerrymandering" of districts was unconstitutional, rejecting the notion that the Equal Protection Clause's application "must be limited to situations where the dilution is based on classifications such as race and population." Instead, the three-judge court ruled that the First Amendment and Equal Protection Clause, together, "prohibit a redistricting scheme which (1) is intended to place a severe impediment on the effectiveness of the votes of individual citizens on the basis of their political affiliation, (2) has that effect, and (3) cannot be justified on other, legitimate legislative grounds."
The question of whether the issue was one of Equal Protection or First Amendment permeated the oral argument, in part because of the standing hurdle, with Justice Kennedy posing the initial question asking the attorney for Wisconsin (and Gill) to assume that the Court had "decided that this is a First Amendment issue, not an equal protection issue." Later Justice Kennedy asked the attorney for the Wisconsin State Senate as amici curiae who had been allotted time in oral argument the question in a more straightforward manner: "Is there an equal protection violation or First Amendment violation?" assuming standing. In the argument for the challengers to the state redistricting scheme, the attorney for the appellees Paul Smith seemed to lean toward the First Amendment regarding standing, but also stated there was not "anything unusual about using the First Amendment and the Fourteenth Amendment to regulate the abusive management of state elections by state government."
How a court would regulate (or even determine) whether state government's regulation was "abusive" is one of the central questions, no matter the doctrinal frame. Are there manageable judicial standards? Does the "efficiency gap" [EG] provide those standards? Justice Breyer sought to provide a framework early in the argument:
So I'd have step one. The judge says,Was there one party control of the redistricting? If the answer to that is no, say there was a bipartisan commission, end of case. Okay?
Step two, is there partisan asymmetry? In other words, does the map treat the political parties differently? And a good evidence of that is a party that got 48 percent of the vote got a majority of the legislature. Other evidence of that is what they call the EG, which is not quite so complicated as the opposition makes it think. Okay? In other words, you look to see.
Question 3, is -- is there going to be persistent asymmetry over a range of votes? That is to say one party, A, gets 48 percent, 49 percent, 50 percent, 51, that's sort of the S-curve shows you that, you know, whether there is or is not. And there has to be some.
And if there is, you say is this an extreme outlier in respect to asymmetry? And then, if all those -- the test flunks all those things, you say is there any justification, was there any other motive, was there any other justification?
Now, I suspect that that's manageable.
Justice Gorsuch returned to Breyer's standards later in the argument, essentially asking counsel for the challengers what the limiting principle would be so that every district would not be subject to litigation.
Justice Kagan also sought a limiting principle, especially since the redistricting map at issue was so problematical. Yet Justice Kagan contended that the science of the redistricting was a science - - - and settled and understandable - - - although Chief Justice Roberts referred to the EG as "sociological gobbledygook." The Chief Justice also noted that the EG "doesn't sound like language in the Constitution," and that the "intelligent man on the street" would view the Court as being political - - - "the Supreme Court preferred the Democrats over the Republicans" - - - which would cause "serious harm to the status and integrity of the decisions of this Court."
For Justices Ginsburg and Sotomayor, the central concern seemed to be protecting what Ginsburg called "the precious right to vote" and what Sotomayor criticized as "stacking the deck," asking about the political value of gerrymandering at all. Justice Sotomayor also described the repeated map-making and redrawing of districts until the Wisconsin map was as partisan as it could possibly be. She asked the attorney for Wisconsin why the legislators didn't use one of the earlier maps. He answered: "Because there was no constitutional requirement that they do so." She responded: "That's the point."
As always, it is unclear from oral argument what the Court might do, but there did seem to be recognition of the problem of gerrymandering and the possibility of manageable standards with a limiting principle for many of the Justices.
Monday, September 11, 2017
Recall that last week, fifteen states and the District of Columbia filed New York v. Trump challenging the rescission of DACA, the Deferred Action for Childhood Arrivals program, covering 800,000 people in the United States who are not citizens but who have been residents since childhood. The rescission was promised by President Trump, announced by Attorney General Jefferson Sessions, now in a Memorandum from the Department of Homeland Security, although some of the details of the rescission remain murky.
Today, several other states - - - California, Maine, Maryland, and Minnesota - - - filed a complaint in the Northern District of California, California v. Department of Homeland Security, also challenging the DACA rescission making similar but not identical arguments. In the California challenge, equal protection is the sixth of the six counts, with no mention of anti-Mexican animus in the allegations. Instead, the equal protection claim contends that "rescission of DACA violates fundamental conceptions of justice by depriving DACA grantees, as a class, of their substantial interests in pursuing a livelihood to support themselves and fu1ther their education."
However, like New York v. Trump, the California complaint includes a challenge based on the Fifth Amendment's Due Process Clause, contending in its first cause of action that:
Given the federal government's representations about the allowable uses of information provided by DACA applicants, Defendants' change in policy on when to allow the use of information contained in DACA applications and renewal requests for purposes of immigration enforcement, including identifying, apprehending, detaining, or deporting non- citizens, is fundamentally unfair.
This "informational use" due process claim is buttressed by the California complaint's fifth cause of action sounding in equitable estoppel, a claim not made in the New York complaint. Claims similar to the New York complaint include violations of the Administrative Procedure Act and the Regulatory Flexibility Act. Factual allegations supporting these causes of action include references to the President's tweets as advancing rationales for the rescission that are absent or contrary to the Homeland Security memorandum, thus making the rescission arbitrary and capricious.
Additionally, last week in a separate complaint in Regents of the University of California v. Department Homeland Security, also filed in the Northern District of California, another challenge to the DACA rescission was filed by named plaintiff, Janet Napolitano, now Chancellor of the University of California, but also former Secretary of the Department of Homeland Security. In the University of California (UC) complaint, there is no equal protection claim, and the due process claim is third of three claims for relief and sounds in procedural due process:
¶69. The University has constitutionally-protected interests in the multiple educational benefits that flow from a diverse student body. Thousands of DACA students have earned prized places as undergraduate and graduate students at the University of California through their record of high— even extraordinary—personal achievement in high school and college. In reliance on DACA, the University has chosen to make scarce enrollment space available to these students and to invest in them substantial time, financial aid, research dollars, housing benefits, and other resources, on the expectation that these students will complete their course of study and become productive members of the communities in which the University operates, and other communities throughout the nation. If these students leave the University before completing their education, UC will lose the benefits it derives from their contributions, as well as the value of the time and money it invested in these students with the expectation that they would be allowed to graduate and apply their talents in the United States job market.
¶70. UC students who are DACA recipients also have constitutionally-protected interests in their DACA status and the benefits that come from that status, including the ability to work, to pursue opportunities in higher education, to more readily obtain driver’s licenses and access lines of credit, to obtain jobs, and to access certain Social Security and Medicare benefits.
¶71. The Rescission and actions taken by Defendants to rescind DACA unlawfully deprive the University and its students of these and other constitutionally-protected interests without due process of law. Such deprivation occurred with no notice or opportunity to be heard.
The other two causes of action in the UC complaint are based on the Administrative Procedure Act, with the first claim for relief contending the rescission is "arbitrary and capricious" and the second cause of action objecting to lack of notice and comment. However, the "arbitrary and capricious" claim for relief does include a reference to the Fifth Amendment:"The Rescission and actions taken by Defendants to rescind DACA are arbitrary and capricious, an abuse of discretion, and not in accordance with law because, among other things, they are contrary to the constitutional protections of the Fifth Amendment."
It may be that even more constitutional and statutory challenges to DACA are forthcoming as protests against the rescission continue.
[image: DACA Rescission Protest at Trump Tower, NYC, September 2017, photo by via]
Tuesday, August 29, 2017
In an exceedingly brief Order signed only by Associate Justice Samuel Alito, the United States Supreme Court in Abbott v. Perez, stated:
UPON CONSIDERATION of the application of counsel for the applicants,
IT IS ORDERED that the order of the United States District Court for the Western District of Texas, case No. SA-11-CV-360, entered August 15, 2017, is hereby stayed pending receipt of a response, due on or before Tuesday, September 5, 2017, by 3 p.m., and further order of the undersigned or of the Court.
Recall that the three-judge court, after an extensive opinion, ultimately directed the Texas Attorney General to provide a "written advisory within three business days stating whether the Legislature intends to take up redistricting in an effort to cure these violations and, if so, when the matter will be considered."
As we discussed, the extensive opinion by the three judge court found constitutional violations, including intentional discrimination, but also rejected several of the challengers' claims.
[image: Caricature of Associate Justice Alito by Donkey Hotey via ]