Thursday, February 22, 2018
Check out Garrett Epps's piece in The Atlantic on What Clarence Thomas Gets Wrong About the Second Amendment. The piece responds to Justice Thomas's dissent this week in the Court's decision not to review a Ninth Circuit ruling that upheld California's ten-day waiting period for gun purchases.
Tuesday, February 20, 2018
Check out Neal Katyal and Kenneth Starr's piece in the NYT on A Better Way to Protect Mueller. They argue that instead of Congress acting to protect the special counsel, DOJ should do what Robert Bork did in Watergate--that is, after he fired Cox:
As acting attorney general, Bork appointed a new special prosecutor, Leon Jaworski. He then issued a regulation that "the president will not exercise his constitutional powers to effect the discharge of the special prosecutor or to limit the independence that he is hereby given." It went on to specify that the special prosecutor could be terminated only for "extraordinary improprieties," and even then, Nixon could do it only with a "consensus" of the House and Senate majority and minority leaders, and the chairmen and ranking members of the chambers' judiciary committees. Bork codified these restrictions in federal regulations, and told the news media that Nixon had agreed to them.
Katyal and Starr argue that DOJ should issue its own "Bork regulation."
Friday, February 16, 2018
The Sixth Circuit ruled today that plaintiffs lacked standing to sue a law firm for sending a letter without a disclosure that it was a "communication . . . from a debt collector" in violation of the federal Fair Debt Collection Practices Act.
The ruling is the latest application of the Supreme Court's 2016 ruling in Spokeo that a plaintiff has to show an actual harm for Article III standing purposes, even if Congress purports to create a harm through legislation. (In other words, a Congress-created harm alone isn't enough: a plaintiff still has to show actual harm under the standing rules in order to satisfy Article III.)
The case, Hagy v. Demers, arose when Demers, an attorney for a mortgage lender, wrote to the Hagys' attorney saying that his client wouldn't seek to collect on any deficiency balance on the Hagys' mortgage loan. But Demers didn't include a statement that this was a "communication . . . from a debt collector," as required by the FDCPA. So after the mortgage lender nevertheless hassled the Hagys for payment, the Hagys sued Demers, arguing that the FDCPA created an individual right to a notice that a communication is from a debt collector, and that Demers's failure to include the notice harmed them.
The Sixth Circuit rejected that argument. The court held that under Spokeo the Hagys had to show actual harm to establish Article III standing even if Congress purported to create a harm under the FDCPA, and that they couldn't show that Demers's letter harmed them in any concrete way. (In fact, the court said it helped them.)
The court analogized this separation-of-powers problem to a familiar federalism problem to illustrate the limits on Congress:
Congress may not use its enforcement power under the Fourteenth Amendment to redefine the "free exercise" of religion however it wishes and in the process intrude on the States' existing powers in the area. So too with the horizontal separation of powers at the national level. Congress may not enact a law that eliminates Article III safeguards that permit federal courts only to use the "judicial Power" to hear "Cases" and "Controversies."
We know of no circuit court decision since Spokeo that endorses an anything-hurts-so-long-as-Congress-says-it-hurts theory of Article III injury. Although Congress may "elevate" harms that "exist" in the real world before Congress recognized them to actionable legal status, it may not simply enact an injury into existence, using its lawmaking power to transform something that is not remotely harmful into something that is.
The court acknowledged the challenges in drawing a line "between what Congress may, and may not, do in creating an 'injury in fact.'" ("Put five smart lawyers in a room, and it won't take long to appreciate the difficult of the task at hand.") But the court said this case was easy: The Hagys didn't even try to show that they suffered some harm outside of the "procedural harm" that Congress created in requiring the disclosure under the FDCPA.
The ruling means that the Hagys' case is dismissed.
Thursday, February 15, 2018
Former White House chief strategist Stephen Bannon once again tried to expand the scope of executive privilege in his testimony today before the House Intelligence Committee. This time, Bannon reportedly invoked the privilege in response to any question except 25 that were written for him by the White House. (His answer to each: "No.")
According to The Hill, the White House wrote a letter to the Committee on Wednesday evening explaining its view why executive privilege covers communications during Trump's transition--and not just communications during President Trump's presidency. As we explained, this is not the conventional understanding of the privilege. We'll post on the White House's reasoning if and when it becomes available.
Wednesday, February 7, 2018
The D.C. and Ninth Circuits this week ruled in two very different cases that plaintiffs lacked claims against federal officers or agents for violations of their constitutional rights. The two rulings both rely on a well established Bivens rule, that a plaintiff lacks a Bivens remedy if alternative statutory remedies are available. As such, the rulings don't restrict Bivens because of the Supreme Court's restrictive reading of Bivens last Term in Abbasi. Still, they underscore the limited reach of Bivens.
In the D.C. case, Liff v. Office of Inspector General, a former government contractor sued the Labor Department OIG and the Office of Personnel Management for violating his due process rights after those offices published reports that allegedly caused harm to him and his business. The court held that as a government contractor he had other statutory remedies, including the Tucker Act, the Contract Disputes Act, and the agency procurement protest process under the Federal Acquisition Regulation. As to his privacy claim, the court said the Privacy Act provided relief. The court was untroubled that these remedies wouldn't make him whole: "The question is whether alternative remedies exist, not whether they cover the full breadth of harm that a would-be Bivens plaintiff alleges."
In the Ninth Circuit case, Vega v. U.S., a federal inmate sued halfway-house operators for violating his First Amendment right to access to the courts and procedural due process after they filed a disciplinary report, without evidence, that resulted in his return to federal prison. (He eventually was returned to the halfway house.) The court held that he lacked a Bivens remedy, because the Administrative Remedy Program, the Unit Discipline Committee, or state-law claims could have provided relief.
Wednesday, January 31, 2018
A sharply fractured and divided en banc D.C. Circuit today rejected a challenge to the independent single director at the Consumer Protection Financial Bureau. The ruling deals a blow to opponents of the CFPB's power structure. But this ruling almost certainly doesn't end the matter; instead, it likely only tees the case up for the Supreme Court, giving this Court a chance to put its gloss on independence within the Executive Branch.
We previously posted on the case here. (This case is not directly related to the litigation over who is the true acting head of the Bureau.)
Opponents of the CFPB power structure argued that Congress violated the Take Care Clause in creating the CFPB with an independent single director. They said that while the Supreme Court has approved independent agencies in the Executive Branch, these have all been boards, not single directors. And creating an independent single director put too much power in the hands of the CFPB director--and took too much power away from the President.
The court today rejected those claims. The multiple opinions run 250 pages, but the majority's approach came down to this:
The Supreme Court eighty years ago sustained the constitutionality of the independent Federal Trade Commission, a consumer-protection financial regulator with powers analogous to those of the CFPB. Humphrey's Executor v. United States. In doing so, the Court approved the very means of independence Congress used here: protection of agency leadership from at-will removal by the President. The Court has since reaffirmed and built on that precedent, and Congress has embraced and relief on it in designing independent agencies. We follow that precedent here to hold that the parallel provision of the Dodd-Frank Wall Street Reform and Consumer Protection Act shielding the Director of the CFPB from removal without cause is consistent with Article II.
Congress's decision to provide the CFPB Director a degree of insulation reflects it permissible judgment that civil regulation of consumer financial protection should be kept one step removed from political winds and presidential will. We have no warrant here to invalidate such a time-tested course. No relevant consideration gives us reason to doubt the constitutionality of the independent CFPB's single-member structure. Congress made constitutionally permissible institutional design choices for the CFPB with which courts should hesitate to interfere. "While the Constitution diffuses power the better to secure liberty, it also contemplates that practice will integrate the dispersed powers into a workable government." Youngstown Sheet & Tube Co. v. Sawyer.
Wednesday, January 17, 2018
The Center for Constitutional Rights filed a habeas corpus petition in federal court last week on behalf of eleven detainees challenging their continued, and, under President Trump, apparently indefinite, detention at Guantanamo Bay.
The petitioners have all been detained at Guantanamo without charge or trial, between ten and sixteen years. Two have been cleared for release.
The petitioners argue that their claim is different than prior Guantanamo habeas petitions--"as it has to be," given President Trump's position on Guantanamo:
The two prior presidential administrations released a total of nearly 750 men. They did so by making case-by-case determinations based on an individual detainee's circumstances in a manner that was purportedly tailored to the executive branch's interest in national security. President Trump, in contrast to his predecessors, has declared and is carrying out his intention to keep all remaining detainees in Guantanamo, regardless of their individual circumstances--presumably even those the executive branch previously determined need no longer be detained.
The petitioners argue that their detention violates due process and exceeds authority under the 2001 Authorization for Use of Military Force.
As to due process, they argue that the Due Process Clause applies at Guantanamo for the same functional reason why the Suspension Clause applies there under Boumediene: "The Boumediene Court's functional analysis led to recognition of the applicability of the Suspension Clause in Guantanamo. Therefore, at least some measure of the Due Process Clause must also reach Guantanamo because there are no practical barriers that would apply to one provision but not the other." On the merits, they argue that their lengthy detention, without charge or trial, violates the Due Process Clause's durational limits on detention; that indefinite detention cannot be justified based on a loose and dated standard; and that two of them have already been cleared for release.
As to the AUMF, petitioners claim that it doesn't authorize indefinite, unreviewable detention; that the laws of war don't authorize this kind of detention; and that the AUMF itself has become stale.
Former White House chief strategist Steve Bannon invoked a breathtakingly broad version of executive privilege on behalf of the President at yesterday's closed-door House Intelligence Committee hearing. But at the same time, he reportedly maintains (apparently along with the White House) that the same executive privilege won't prevent him from sharing information with Special Counsel Robert Mueller, who has subpoenaed Bannon.
What gives? Neither Bannon nor the White House has said. But let's try to sort some of this out.
Start here: The Supreme Court, in its seminal case United States v. Nixon, said that certain communications between the President and his or her advisors may be privileged. While this "executive privilege" is nowhere in the Constitution, the Court said that it derives from the President's Article II powers and separation-of-powers principles.
But the privilege extends only to communications with the President. So any communications that Bannon had with Candidate Trump or President-Elect Trump are not covered under Nixon. Under Nixon, executive privilege simply does not apply.
Moreover, the privilege works against particular requests for information. It doesn't provide a broad shield against testifying generally. (As the courts have recognized, if it worked as a broad shield, the President could use it to frustrate the functions of the coordinate branches, in violation of the separation of powers.) Bannon can only assert the privilege on behalf of the President in response to a particular request, and not as a shield against testifying generally.
As to Bannon's communications with President Trump: Nixon says that the privilege is qualified (that is, not absolute) and subject to a balancing of interests. In particular, in determining whether executive privilege protects communications, the Court balances the need for the information against the need for confidentiality of the particular Presidential communication at issues.
[N]either the doctrine of separation of powers nor the need for confidentiality of high-level communications, without more, can sustain an absolute, unqualified Presidential privilege of immunity from judicial process under all circumstances. The President's need for complete candor and objectivity from advisers calls for great deference from the courts. However, when the privilege depends solely on the broad, undifferentiated claim of public interest in the confidentiality of such conversations, a confrontation with other values arises. Absent a claim of need to protect military, diplomatic, or sensitive national security secrets, we find it difficult to accept the argument that even the very important interest in confidentiality of Presidential communications is significantly diminished by production of such material for in camera inspection with all the protections that a district court will be obliged to provide.
In Nixon, the Court held that the countervailing interests in the "fair administration of criminal justice"--in particular, Fifth and Sixth Amendment rights of defendants and the basic functions of the courts--outweighed the President's "broad interest in confidentiality of communications."
So the question in the Bannon case is whether the balancing works the same way with a congressional inquiry. There's good reason to think that it does. As Judge Bates (D.D.C.) explained in the Harriet Miers case, Committee on Judiciary, U.S. House of Representatives v. Miers, Congress's "power of inquiry" is every bit as important as the judiciary's power to administer justice:
[T]he Executive insists that this case is distinguishable because it does not involve a core function of another constituent branch but rather a peripheral exercise of Congress's power. That is mistaken. As discussed above, Congress's power of inquiry is as broad as its power to legislate and lies at the very heart of Congress's constitutional role. Indeed, the former is necessary to the proper exercise of the latter: according to the Supreme Court, the ability to compel testimony is "necessary to the effective functioning of courts and legislatures." Thus, Congress's use of (and need for vindication of) its subpoena power in this case is no less legitimate or important than was the grand jury's in United States v. Nixon. Both involve core functions of a co-equal branch of the federal government, and for the reasons identified in Nixon, the President may only be entitled to a presumptive, rather than an absolute, privilege here.
The Miers case was a little different--it involved an assertion of absolute privilege against congressional testimony on a slightly different theory than executive privilege--and the court used the quoted passage merely to support its conclusion that no such absolute privilege existed. Moreover, the passage glosses over the fact that the Nixon balancing considered important competing Fifth and Sixth Amendment rights, absent or diminished in a congressional inquiry. Still, Congress's interests in fact-finding and oversight count for something important, even if slightly less than the judiciary's interests in Nixon, and they may well outweigh a "broad and undifferentiated" claim of privilege.
By claiming executive privilege before the House, but not before Mueller, Bannon and the White House are probably relying on a different balancing of interests under Nixon. In particular, the White House is probably claiming that the House's interests in the communications are less than Mueller's interests, and that the President's interest in confidential communications with Bannon outweigh the House's interests, but not Mueller's. Moreover, it's probably claiming that the communications are more secure if released to Mueller (like the in camera review in Nixon) and less secure if released to Congress (even if a closed-door hearing).
But we don't know for sure, because the White House hasn't said. And we don't know how the courts would rule on these theories, even if the President asserted them.
These disputes between the White House and Congress usually work themselves out informally, without involvement of the courts. But now that the Committee has issued a subpoena, if Bannon continues to decline to provide certain information, the case could go to the courts, and we could get the President's legal reasoning--and a court ruling on whether and how executive privilege applies.
UPDATE: It turns out that U.S. Magistrate Judge James P. O'Hara ruled last spring that executive privilege doesn't apply to communications with the President-Elect. (H/t to my co-blogger Ruthann Robson.) The case involved Kansas Secretary of State Kris Kobach's attempt to invoke the privilege to protect a communication that he had with President-Elect Trump on the National Voter Registration Act. Judge O'Hara rejected Kobach's claim:
Secretary Kobach's communication was made to a president-elect, not to a sitting president. Although a president-elect by statute and policy may be accorded security briefings and other transitional prerogatives, he or she has no constitutional power to make any decisions on behalf of the Executive Branch. No court has recognized the applicability of the executive privilege to communications made before a president takes office. If that were the law, it would mean that potentially almost everything communicated to a president-elect by the hundreds of persons seeking appointments in the new administration would be shielded by privilege.
In Nixon v. Administrator of General Services, the Supreme Court did recognize that former presidents may assert privilege over certain communications made during their terms in office. But the reasoning given by the Court for its decision doesn't directly translate to communications with president-elects.
Thursday, January 11, 2018
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.
Thursday, January 4, 2018
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)
Friday, December 15, 2017
Judge Wendy Beetlestone (E.D. Pa.) ruled today that the Commonwealth of Pennsylvania was likely to succeed on the merits of its challenge to the Trump Administration's interim final rules rolling back Obamacare's contraception mandate. Judge Beetlestone issued a temporary injunction, halting enforcement of the rules.
The case, Pennsylvania v. Trump, arose when the administration issued two interim final rules that all but undid the Affordable Care Act's contraception mandate for any organization that didn't want to enforce it. One rule, the Religious Exemption Rule, said that any organization could claim an exemption based on a sincerely held religious belief; the other, the Moral Exemption Rule, said the same thing for any organization that claimed a sincere moral objection. Under the rules, objecting organizations didn't have to seek an accommodation; they could simply drop coverage (with ERISA notice to their employees).
Pennsylvania sued, arguing that the IRFs violated the Administrative Procedure Act, Title VII of the Civil Rights Act , equal protection, and the Establishment Clause.
Judge Beetlestone first ruled that the Commonwealth had standing--for exactly the same reasons why Texas had standing to challenge President Obama's DAPA program in Texas v. United States:
There is no daylight between the 2015 Texas suit against the federal government and the current Commonwealth suit against the federal government. Like Texas, the Commonwealth challenges agency action in issuing regulations--here, the New IRFs. It is all the more significant that the Commonwealth, like Texas before it, sues to halt affirmative conduct made by a federal agency. . . . Furthermore, like Texas and Massachusetts [in Massachusetts v. EPA], the Commonwealth seeks to protect a quasi-sovereign interest--the health of its women residents. . . . According to the Commonwealth . . . the Agencies' New IRFs will allow more employers to exempt themselves from the ACA's Contraceptive Mandate. Consequently, the Commonwealth contends that Pennsylvania women will seek state-funded sources of contraceptive care. Such a course of action will likely cause the Commonwealth to expend more funds to protect its quasi-sovereign interest in ensuring that women residents receive adequate contraceptive care.
She went on to rule that the IRFs likely violated the APA, for two reasons. First, the administration violated notice-and-comment rules in issuing the IRFs. The court rejected the government's argument that it had statutory authority to bypass notice-and-comment procedures, and that special circumstances justified bypassing those procedures. Next, the IRFs violated federal law, the ACA. In particular, the ACA mandates coverage for women's preventative care, and doesn't provide an exception for religious or moral beliefs. Moreover, the accommodation process doesn't violate the Religious Freedom Restoration Act (as the government maintained), and so there's no RFRA reason for the Religious Exemption Rule. (The government didn't even try to argue that the RFRA mandated the Moral Exemption Rule.)
Because the court held that the Commonwealth would likely succeed on its APA claims, it didn't rule on the constitutional claims.
The court went on to conclude that the Commonwealth demonstrated the other elements of a preliminary injunction, too.
Thursday, December 14, 2017
The Ninth Circuit this week ruled that the Secretary of the Interior could withdraw, for up to twenty years, over one million acres of land near Grand Canyon National Park from new uranium mining claims. The ruling deals a blow to mining companies and local governments who brought the lawsuit. But the blow may be temporary, if the current administration reverses course and allows mining.
The case, National Mining Association v. Zinke, arose when then-Secretary Salazar exercised his authority under the Federal Land Policy and Management Act and moved to withdraw the land from mining claims. Under the Act, the Interior Secretary has authority to withdraw large tracts of federal land from mining, so long as the Secretary publishes a notice in the Federal Register, affords an opportunity for public hearing and comment, and obtains consent to the withdrawal from any other department or agency involved in the administration of the relevant lands. Moreover, the Secretary can only withdraw land for 20 years, max, and has to report to Congress.
The Act also contains a legislative veto, allowing Congress, by concurrent resolution only (and not with a presidential signature), to veto the Secretary's withdrawal.
As soon as Salazar filed his Notice of Intent in the Federal Register, mining companies and local governments sued, arguing, among other things, that the Secretary lacked authority under the Act. Their theory went like this: The Act's legislative veto provision is unconstitutional under Chadha; the legislative veto is not severable from the rest of the Act (including the Secretary's authority to withdraw federal land); and therefore the unconstitutionality of the legislative veto provision dooms the entire withdrawal provision of the Act, including the Secretary's authority.
The Ninth Circuit rejected this theory. The court ruled that the legislative veto provision was severable, and didn't affect the Secretary's authority. Therefore, the Secretary could go ahead and initiate the withdrawal, pursuant to requirements under the Act, irrespective of the legislative-veto's invalidity.
The court went on to reject the several merits arguments against the Secretary's exercise of authority.
Friday, December 8, 2017
WaPo's Can He Do That? podcast takes on this question, in light of John Dowd's statement earlier this week that the "president cannot obstruct justice because he is the chief law enforcement officer . . . and has every right to express his view of any case." Check it out.
Wednesday, November 29, 2017
Judge Colleen Kollar-Kotelly (D.D.C.) denied individual defendants' renewed motion to dismiss a plaintiff's Bivens claim for retaliatory prosecution in violation of the First Amendment. The ruling, which applies the Supreme Court's ruling from this summer in Ziglar v. Abbasi, means that the plaintiff's First Amendment Bivens action can move forward. (This isn't a ruling on the merits; it only says that the plaintiff's claim survives a motion to dismiss in light of Abbasi.)
The ruling is notable, because the Court appeared to substantially restrict Bivens actions in Abbasi essentially to those very few situations where the Court has allowed a Bivens action. (We posted on this here.) But this ruling reads Abbasi differently--not to prohibit a Bivens action under the First Amendment.
The case, Loumiet v. United States, arose when an attorney for a target of an investigation by the Office of the Comptroller of the Currency complained to the OCC Inspector General that OCC investigators engaged in "highly unusual and disturbing" behavior during their investigation, including making racist comments to the target's staff. The OCC then initiated an enforcement proceeding against the plaintiff pursuant to the Financial Institutions Reform, Recovery, and Enforcement Act, claiming that the plaintiff had "knowingly or recklessly . . . breach[ed his] fiduciary duty," and as a result "caused . . . a significant adverse effect" on the target of the investigation. An ALJ recommended dropping the matter, and the OCC agreed. The plaintiff filed for attorney's fees under the Equal Access to Justice Act and won in the D.C. Circuit. That court ruled that "the Comptroller was not 'substantially justified' in bringing the underlying administrative proceedings against [the plaintiff]."
The plaintiff then brought a Bivens claim for retaliatory prosecution in violation of the First Amendment, among other claims. The court earlier declined to dismiss the case, but the individual defendants asked the court to reconsider after Abbasi came down this summer.
The court in this ruling again declined to dismiss the case.
The court assumed, without deciding, that the case raised a "new context" under Bivens. (The court said that the D.C. Circuit hadn't yet had an opportunity to rule on Abbasi, so it couldn't really say what a "new context" was in the post-Abbasi world of Bivens--in particular, whether Abbasi set a new standard for "new context.") The court went on to say that special factors did not counsel against a Bivens remedy:
Unlike the facts in Abbasi, this is not a case in which "high officers who face personal liability for damages might refrain from taking urgent and lawful action in a time of crisis." Rather, Plaintiff's prosecution was separate from, and subsequent to, the OCC's enforcement action against his bank client; the prosecution against Plaintiff does not seem to have been "urgent," driven by "crisis," or, for that matter, necessary to the underlying enforcement action against Plaintiff's client. Indeed, the Court already made a fact-specific inquiry that a Bivens claim will not deter lawful enforcement activity.
Finally, the court said that the defendants couldn't show that the plaintiff had alternative relief, here under the FIRREA, the Administrative Procedure Act, or the Equal Justice Act.
U.S. District Judge Timothy J. Kelly (D.D.C.) ruled in favor of the President in the ongoing dispute over who is acting director of the Consumer Financial Protection Bureau. We last posted here; WaPo has a story here.
Judge Kelly ruled from the bench against Leandra English, the CFPB deputy director, and declined to unseat Mick Mulvaney, President Trump's appointee.
This is hardly the final say in the matter. We'll post on any written decision when it's released.
Monday, November 27, 2017
As has been widely reported, two acting directors of the Consumer Financial Protection Bureau showed up for work today. One told employees to ignore the other; the other sued. (Politico reports on the confusion at the Bureau here.)
Leandra English, the former deputy director appointed by outgoing Director Richard Cordray, was in line for the job under a Dodd-Frank provision that says that the deputy director becomes acting when the director leaves. But Mick Mulvaney was also in line for the job after President Trump appointed him pursuant to the Federal Vacancies Reform Act. We outlined the competing appointment provisions in a post yesterday. OLC came down on the President's side; so did the CFPB general counsel (who was appointed by Cordray)--and for the same reasons as the OLC.
English sued in the D.C. District Court seeking declaratory and injunctive relief. Here's the gist of her argument:
The President apparently believes that he has authority to appoint Mr. Mulvaney under the Federal Vacancies Reform Act of 1988. But the Vacancies Act, by its own terms, does not apply where another statute "expressly . . . designates an officer or employee to perform the functions and duties of a specified office temporarily in an acting capacity"--which is exactly what the Dodd-Frank Act does. The President's interpretation of the FVRA runs contrary to Dodd-Frank's later-enacted, more specific, and mandatory text. The President's stance is also difficult to square with the relevant legislative history: An earlier version of the Dodd-Frank Act, which would have specifically allowed the President to use the Vacancies Act to temporarily fill the office, was eliminated and replaced with the current language designating the Deputy Director as the Acting Director. And the President's attempt to appoint a still-serving White House staffer to displace the acting head of an independent agency is contrary to the overall design and independence of the Bureau.
Saturday, November 25, 2017
The Office of Legal Counsel issued a memo on Saturday concluding that the President had authority to appoint OMB Director Mick Mulvaney as acting head of the Consumer Financial Protection Bureau, even though the CFPB chain-of-succession says that CFPB Deputy Director Leandra English should take over the job.
The opinion, while significant, is not binding on the courts, where this dispute will inevitably be resolved.
The dispute pits two appointment authorities against each other. On the one hand, the CFPB statute says that the CFPB Deputy Director shall "serve as acting Director in the absence or unavailability of the Director." This means that English, the acting Deputy, should get the job. (Richard Cordray, the former Director, appointed English as acting Deputy shortly before he resigned on Friday.) But on the other hand, the Federal Vacancies Reform Act gives the President authority to "temporarily authoriz[e] an acting official to perform the functions and duties" of an officer of an Executive agency whose appointment "is required to be made by the President, by and with the advice and consent of the Senate." This means that Mulvaney should get the nod.
So who wins? OLC says the President does.
The Federal Vacancies Reform Act says that its process shall be the "exclusive means" for authorizing acting service "unless" another statute expressly designates an officer to serve as acting. The CFPB statute does just that. But according to OLC, this doesn't mean that the CFPB statute prevails; it simply means that both the CFPB statute and the Federal Vacancies Reform Act provide available methods for appointment:
By its terms, [the Vacancies Reform Act says that it] shall be the "exclusive means" of filling vacancies on an acting basis unless another statute "expressly" provides a mechanism for acting service. It does not follow, however, that when another statute applies, the Vacancies Reform Act ceases to be available. To the contrary, in calling the Vacancies Reform Act the "exclusive means" for designations "unless" there is another applicable statute, Congress has recognized that there will be cases where the Vacancies Reform Act is non-exclusive, i.e., one available option, together with the office-specific statute.
But even so, how do we know the President wins? According to OLC,
as with other office-specific statutes, when the President designates an individual under the Vacancies Reform Act outside the ordinary order of succession, the President's designation necessarily controls. Otherwise, the Vacancies Reform Act would not remain available as an actual alternative in instances where the office-specific statute identifies an order of succession, contrary to Congress's stated intent.
Finally, because Congress didn't include the CFPB Director in the statutory carve-outs to the Vacancies Reform Act for other independent agencies, OLC concluded that it's subject to that Act, even though Congress designed it as independent. That's because the carve-outs refer to multi-member boards (which the CFPB is not) and other specified agencies (not including the CFPB).
Tuesday, November 21, 2017
Judge William H. Orrick (N.D.Cal.) granted summary judgment for the plaintiffs and issued a nationwide permanent injunction against the defunding and enforcement provisions of President Trump's sanctuary cities executive order.
The ruling deals a serious blow to the President and his efforts to rein in sanctuary cities. This ruling goes to the EO itself, not AG Sessions's interpretation and enforcement of the EO, as the more recent temporary injunctions did. We posted most recently on the case in Philadelphia here.
Judge Orrick noted that nothing had changed from his earlier temporary injunction. He summarized his ruling this way:
The Constitution vests the spending powers in Congress, not the President, so the Executive Order cannot constitutionally place new conditions on federal funds. Further, the Tenth Amendment requires that conditions on federal funds be unambiguous and timely made; that they bear some relation to the funds at issue; and that they not be unduly coercive. Federal funding that bears no meaningful relationship to immigration enforcement cannot be threatened merely because a jurisdiction chooses an immigration enforcement strategy of which the President disapproves. Because the Executive Order violates the separation of powers doctrine and deprives the Counties of their Tenth and Fifth Amendment rights, I GRANT the Counties' motions for summary judgment and permanently enjoin the defunding and enforcement provisions of Section 9(a).
Recall that Section 9(a) says that "[i]n furtherance of [the policy to ensure that states and their subdivisions comply with 8 U.S.C. Sec. 1373], the [AG] and the Secretary [of Homeland Security] . . . shall ensure that jurisdictions that willfully refuse to comply with 8 U.S.C. Sec. 1373 (sanctuary jurisdictions) are not eligible to receive Federal grants, except as deemed necessary for law enforcement purposes . . . ." Importantly, the EO didn't specify which federal grants were at risk; it apparently applied to all federal grants.
AG Sessions tried to restrict the EO to JAG/Byrne grants from the Justice Department, but Judge Orrick had nothing of it: "The AG Memorandum not only provides an implausible interpretation of Section 9(a) but is functionally an 'illusory promise' because it does not amend Section 9(a) and does not bind the Executive Branch. It does not change the plain meaning of the Executive Order."
Judge Orrick said that a nationwide injunction was appropriate "[b]ecause Section 9(a) is unconstitutional on its face, and not simply in its application to the plaintiffs here . . . ."
Thursday, November 16, 2017
Judge Michael Baylson (E.D. Pa.) granted a preliminary injunction yesterday against the government's enforcement of it's anti-sanctuary cities moves against Philadelphia, and enjoyed AG Sessions from denying the city's Byrne JAG grant for FY 2017.
The ruling is a major victory for the city, and a significant strike against the federal crack-down on sanctuary cities. It follows a similar, but less sweeping, ruling in the Chicago case.
Judge Baylson ruled that AG Sessions's order to condition DOJ Byrne JAG grants on Philadelphia's agreement to give federal authorities notice when city officials detain an unauthorized alien (the "notice condition"), to give federal authorities access to city jails (the "access condition"), and to certify that it complies with 8 U.S.C. Sec. 1373 likely violate federal law and the Constitution.
In particular, Judge Baylson ruled that the conditions violate the Administrative Procedure Act, because they're arbitrary and capricious. He also ruled that they "are improper under settled principles of the Spending Clause, the Tenth Amendment, and principles of federalism." On the constitutional issues, he said that the conditions are not sufficiently related to the purposes of the Byrne JAG grant program (in violation of the conditioned-spending test under South Dakota v. Dole), because "[i]mmigration law [the purpose of the conditions] has nothing to do with the enforcement of local criminal laws [the purpose of Philadelphia's Byrne JAG grant]." He also said that the conditions were ambiguous (also in violation of South Dakota v. Dole), because "the Access and 48-hours Notice Conditions cannot have been unambiguously authorized by Congress if they were never statutorily authorized," and the "malleable language [of Section 1373] does not provide the 'clear notice that would be needed to attach such a condition to a State's receipt of . . . funds.'" (The court also said, but "[w]ithout specifically so holding," that "Philadelphia is likely to succeed on the merits of its Tenth Amendment challenge" to the conditions, because the notice and access conditions "impose affirmative obligations on Philadelphia, with associated costs of complying with such conditions," and because the compliance condition (on 1373) "would inherently prevent Philadelphia from, among other things, disciplining an employee for choosing to spend her free time or work time assisting in the enforcement of federal immigration laws" (and thus commandeers the city).
Finally, Judge Baylson noted that Philadelphia isn't a sanctuary city, anyway--at least not in the way defined by federal law. In particular, he wrote that the city "substantially complies with Section 1373."