Monday, October 16, 2017
As soon as President Trump announced last week that his administration would halt cost-sharing reimbursement payments to insurers on the Obamacare exchanges, 18 states and the District of Columbia sued, arguing that the move violates federal law and the Take Care Clause of the Constitution.
The cost-sharing reimbursements ("CSRs") are designed to reimburse insurers for extending insurance to low- and moderate-income individuals and families on the Obamacare exchanges. Recall that while the ACA requires the government to pay CSRs, Congress failed to appropriate funds for them under President Obama. The President nevertheless paid them, and the House of Representatives sued. Judge Rosemary Collyer (D.D.C.) ruled in favor of the House and stopped the payments. The D.C. Circuit, however, held the case in abeyance as the Trump administration decided whether to stop the payments. We posted most recently here.
The Trump administration continued the CSRs--until last week.
Eighteen states and the District of Columbia immediately brought suit in the Northern District of California. The complaint points out that 42 U.S.C. Sec. 18071(c)(3)(A) says that the Secretary "shall make periodic and timely payments [CSRs]" to the insurers and argues that the President's decision not to make payments violates the Administrative Procedure Act and the Take Care Clause. The complaint also catalogues the familiar and many ways that the Trump administration is actively undermining the ACA, and argues that these, too, violate the Take Care Clause.
The lawsuit pits the fact that the ACA requires CSRs against the fact that Congress declined to fund them, against the backdrop of the well-integrated and complementary provisions in the ACA, which could all fall apart without the CSRs. When Judge Collyer address these issues, she wrote,
Nothing in Section 1402 prescribes a "periodic and timely payment" process, however. Nor does Section 1402 condition the insurers' obligation to reduce cost sharing on the receipt of offsetting payments.
Such an appropriation [for CSRs] cannot be inferred [from the integration between refundable tax credits, which were funded by Congress, and CSRs, which were not], no matter how programmatically aligned the Secretaries may view [those sections]. . . .
Payment out [CSRs] without an appropriation thus violates the Constitution. Congress authorized reduced cost sharing but did not appropriate monies for it, in the FY 2014 budget or since. Congress is the only source for such an appropriation, and no public money can be spent without one.
Thursday, September 28, 2017
Check out Linda Greenhouse's take on the travel ban case at the NYT, the case's likely mootness, and what it all means. Here's a link to Robert Loeb's piece at Lawfare (cited by Greenhouse) on the "presumption of regularity"--the basis for the administration's argument that the Court should grant it deference, and not look behind the stated purposes of the travel ban to the President's and surrogates' anti-Muslim statements.
Wednesday, September 27, 2017
The Senate Judiciary Committee heard testimony yesterday on two bi-partisan measures to protect the Special Counsel from arbitrary firing. The bills, and the hearing, are a push-back against earlier White House murmurings and more recent public concerns that President Trump may try to fire Special Counsel Robert Mueller.
The bills, S. 1735 (sponsored by Senators Graham, Booker, Whitehouse, and Blumenthal) and S. 1741 (sponsored by Senators Tillis and Coons), would both codify the heightened "for cause" firing standard already in the DOJ regs. They'd also provide independent judicial oversight of any termination.
But they differ in the way they'd provide judicial oversight. The Graham-Booker bill would require the AG to file a case before a three-judge district court before firing the Special Counsel; in contrast, the Tillis-Coons bill would allow the Special Counsel to challenge the termination before a three-judge district court after the firing.
That distinction may make all the constitutional difference between the two approaches. That's because there may be Article III problems (standing, and possibly the bar on advisory opinions) with a court hearing a pre-termination challenge, as in Graham-Booker (as Prof. Steve Vladeck's suggested before the Committee). Moreover, adding a second-level determination of "for cause" prior to firing (as in Graham-Booker), but not after firing (as in Tillis-Coons), may run afoul of the prohibition on double-for-cause provisions in Free Enterprise Fund v. PCAOB (as Prof. John Duffy argued).
But more generally, the witnesses, with one exception, seemed to agree that there were no problems codifying the for-cause firing standard, so long as Morrison v. Olson remains good law. (Prof. Eric Posner argued that both bills are well within Morrison; Vladeck and Duffy more or less agreed.)
Only Prof. Akhil Reed Amar argued that Morrison is (at least de facto) no longer good law (that Justice Scalia has been vindicated), that the bills violate the separation of powers, and that, in any event, it'd be "unwise" to pass either law given the likelihood of a veto and the resulting blowback from the White House.
Saturday, September 16, 2017
Judge Harry D. Leinenweber (N.D. Ill.) yesterday enjoined two conditions nationwide, but declined to enjoin a third, that AG Sessions placed on a federal grant program to clamp down on sanctuary cities. The order came in the lawsuit that Chicago filed against Session.
The ruling is a partial victory for the City and partial victory for the government. It partially halts two key conditions that AG Sessions placed on Byrne Grant recipients, but upholds a third, requiring certification of compliance with Section 1373.
Recall that AG Sessions placed three conditions on a municipality's receipt of federal funds under the Byrne Memorial Justice Assistance Grant Program: (1) that a state law or practice is in place to honor a request by DHS to provide advance notice of any scheduled release date and time for a particular alien (the "notice" condition); (2) that a state law or practice permits federal agents to have access to any correctional facility to meet with aliens and interrogate them (the "access" condition); and (3) that a local government submit a certification of compliance with 8 U.S.C. Sec. 1373, the federal law prohibiting state and local laws and practices that restrict state and local officials from sending to, or receiving from, federal officials information regarding the citizenship or immigration status of any individual, and prohibiting officials from maintaining such information or exchanging it with federal officials. (the "certification" condition).
The conditions ran up against Chicago's "Welcoming Ordinance." That Ordinance prohibits any "agent or agency" from "request[ing] information about or otherwise investigat[ing] or assist[ing] in the investigation of the citizenship or immigration status of any person unless such inquiry or investigation is required by [state law], federal regulation, or court decision." It goes on to forbid any agent or agency from "disclos[ing] information regarding the citizenship or immigration status of any person."
So Chicago sued Sessions, arguing that all three conditions were unconstitutional and unlawful.
Judge Leinenweber agreed in part and disagreed in part. As to the notice and access conditions, the court said that Sessions lacked statutory authority and exceeded his power to implement these conditions. In particular, the court held that only Congress could impose these conditions, or authorize the AG to do so, and that the statutory scheme in place didn't do that. Because the court ruled on statutory grounds, it declined to rule on the constitutionality of those two provisions.
But in contrast to its ruling on the notice and access conditions, the court held that Chicago did not show a likelihood of success on the merits of its challenge to the certification condition. The court held that this condition was authorized by Congress under the Byrne Grant statute, which says that a recipient must certify that it's in compliance "with all provisions of this part and all other applicable Federal laws" (emphasis added). The court said that Section 1373 fell into that latter category, "all other applicable Federal laws."
Moreover, it held that the certification condition didn't violate the Spending Clause and the anti-commandeering principle. In particular, the court said that Section 1373 doesn't compel Chicago to do anything; instead, it merely forbids it from doing something. The court said that the anti-commandeering principle only prohibits the federal government from requiring states or state officials to act, not from prohibiting them from acting, so Section 1373 doesn't violate it.
Without a doubt, Section 1373 restricts the ability of localities to prohibit state or local officials from assisting a federal program, but it does not require officials to assist in the enforcement of a federal program. . . . Because no case has gone so far as to prohibit the federal government from restricting actions that directly frustrate federal law, the Court finds that Congress acts constitutionally when it determines that localities may not prevent local officers from voluntarily cooperating with a federal program or discipline them for doing so.
But the court went on to recognize that Section 1373 raises an unanswered constitutional question: Does the provision commandeer insofar as it prevents local governments from disciplining an employee for spending time assisting in the enforcement of federal immigration law? The court punted, leaving that novel question for appeal:
[B]y leaving it up to local officials whether to assist in enforcement of federal immigration priorities, the statute may effectively thwart policymakers' ability to extricate their state or municipality from involvement in a federal program. . . . Here, we follow binding Supreme Court precedent and the persuasive authority of the Second Circuit, neither of which elevates federalism to the degree urged by the City here. A decision to the contrary would require an expansion of the law that only a higher court could establish.
Wednesday, August 23, 2017
The Third Circuit ruled yesterday that a plaintiff couldn't bring a First Amendment claim against a TSA officer after the officer caused the plaintiff to be detained and charged with making a bomb threat at airport security. The case, which applied the Supreme Court's recent Bivens ruling, Ziglar v. Abassi, walks back circuit law authorizing a Bivens claim for First Amendment violations, and leaves plaintiffs with no federal judicial remedy for a TSA officer's violation of First Amendment rights.
The ruling is a faithful application of Ziglar, but also illustrates the sweep and significance of that decision in restricting constitutional tort claims, especially in areas in any way touching on national security.
The case arose when Roger Vanderklok attempted to pass through Philadelphia airport security with a length of PVC pipe, capped at both ends and containing a watch and heart-monitor for a half-marathon that he intended to run in Miami. TSA employee Charles Kieser performed a secondary screening, which Vanderklok alleged was unduly aggressive. Vanderklok said that he intended to file a complaint; Kieser then called the Philadelphia police and falsely reported that Vanderklok threatened to bring a bomb to the airport. Vanderklook was arrested and charged, but later acquitted, after airport surveillance footage undermined Kieser's story.
Vanderklok sued Kieser for a variety of violations, including a First Amendment violation, pursuant to Bivens. (The Third Circuit only addressed the First Amendment claim.) The court walked back its own circuit law, which applied Bivens to First Amendment claims, and ruled that Bivens didn't "extend" to Vanderklok's First Amendment claim.
The court noted that airport security created a new Bivens context, and that Bivens law had changed:
Our past pronouncements are thus not controlling in the specific circumstances now at issue. It is not enough to argue, as Vanderklok does, that First Amendment retaliation claims have been permitted under Bivens before. We must look at the issue anew in this particular context, airport security, and as it pertains to this particular category of defendants, TSA screeners.
Since Bivens was decided, judicial attitudes about the creation of new causes of action have changed considerably. Courts will no longer imply rights and remedies as a matter of course, "no matter how desirable that might be as a policy matter, or how compatible with the statute [or constitutional provision]." "Given the notable change in the [Supreme] Court's approach to recognizing implied causes of action . . . the Court has made clear that expanding the Bivens remedy is now a 'disfavored' judicial activity."
(Cites to Ziglar omitted.)
As to the Bivens analysis, the court said first that Vanderklok didn't have a remedy under the Federal Tort Claims Act, but may have had a remedy under the DHS Traveler Redress Inquiry Program.
Ultimately, it didn't matter, though, because Vanderklok's claim failed on the second Bivens inquiry. In particular, the court said second that the special factor of national security counseled against a Bivens remedy here:
A special factor counseling hesitation in implying a Bivens action here is that Vanderklok's claims can be seen as implicating "the Government's whole response to the September 11 attacks, thus of necessity requiring an inquiry into sensitive issues of national security." In language laden with separation-of-powers concerns in the context of foreign affairs, national security, and defense, the court wrote that it's up to Congress, not the courts, to create a remedy for constitutional violations in this kind of situation.
The court added a final "practical concern" to authorizing a Bivens remedy. It wrote that because TSA employees aren't typically law enforcement officers, they aren't trained in probable cause determinations of the type that would've been necessary here. Therefore, the court said, "a Bivens claim is poorly suited to address wrongs by line TSA employees. Indeed, the inherent uncertainty surrounding the probable cause standard is itself a factor counseling hesitation."
The ruling ends Vanderklok's First-Amendment portion of his lawsuit.
Tuesday, August 8, 2017
The City of Chicago filed suit this week against the U.S. Department of Justice over the Department's conditions on a federal law-enforcement grant designed to clamp down on sanctuary cities. The suit is just the latest escalation in the running disputes between "sanctuary" jurisdictions and the Trump Administration. We posted most recently here.
Chicago challenges DOJ-added conditions on the Byrne Justice Assistance Grant program that, it says, exceed DOJ authority, violate federalism principles, and interfere with the City's long-standing and effective Welcoming Policy, now codified as the Welcoming City Ordinance. DOJ announced some time ago that it would require grant recipients to comply with Section 1373 (which requires state and local authorities to communicate with federal authorities regarding the immigration status of individuals in their custody). More recently, DOJ announced that it would also require recipients to give the federal government notice of release of any individual at least 48 hours before the scheduled release (the notice condition) and to give federal immigration officials unlimited access to local police stations and law enforcement facilities to interrogate any suspected non-citizen held there (the access condition).
Chicago claims as an initial matter that it complies with Section 1373. That's because its Welcoming Policy prohibits officers from collecting immigration information from individuals in the first place, not from communicating information to federal officers. "[T]hus there is no information for the City to share (or restrict from sharing)." And "[m]oreover, if Chicago officials happen to come across immigration status information, they are not restricted from sharing it with federal officials."
As to the conditions themselves, Chicago argues that they exceed the grant requirements that Congress wrote into the Byrne JAG program; that only Congress, and not the Executive Branch, can add or change the statutory conditions on the program; and that the conditions violate federal conditioned-spending rules. As to the last, Chicago says that the conditions "are not germane to the Byrne JAG funds it has received for over a decade," that the notice and access conditions would require the City to violate the Fourth Amendment (by requiring that the City continue to hold individuals without probable cause for 48 hours, that the access condition, that the conditions are ambiguous, and that they are unconstitutionally coercive. The City also argues that each condition unconstitutionally commandeers it and its officers.
The case is in the Northern District of Illinois.
Friday, August 4, 2017
The D.C. Circuit earlier this week allowed 17 states and the District of Columbia to intervene in the suit challenging federal subsidies to insurance companies under the Affordable Care Act.
The development keeps the appeal alive, even as President Trump considers halting the payments. Such a move before this week's ruling would have mooted the appeal. But now that the states can defend the payments, and oppose Judge Collyer's ruling, it's not entirely clear whether President Trump can stop the payments, or whether the D.C. Circuit might stop him if he tried.
Recall that House Republicans sued the Obama Administration for making payments to insurance companies under the ACA, even though the line-item for those payments was zero funded. The payments were designed under the ACA to subsidize insurance companies for providing affordable plans on the exchanges. But Congress allocated no money to the line-item designated for the subsidies. The Obama Administration nevertheless made payments, drawing money from another, related account. (Without the payments, insurance rates would skyrocket on the exchanges, or insurers would have pulled out, or both.)
House Republicans sued, and Judge Rosemary Collyer (D.D.C.) ruled in their favor. But she stayed her injunction pending appeal. President Trump then inherited the appeal from the Obama Administration, allowing him to drop the appeal, leave Judge Collyer's decision in place, and stop the payments. (If President Trump dropped the appeal, Judge Collyer's stay pending appeal would have gone away.) He could even have cited Judge Collyer's ruling as a reason for stopping payments, perhaps diffusing some of the political blow-back from such a move.
But President Trump didn't drop the appeal. Moreover, he has continued the payments, even as he repeatedly suggests that he might stop. Bipartisan lawmakers have encouraged him to continue payments. A final decision is due from the White House this week.
Now, with this most recent order from the D.C. Circuit, allowing states to join the suit, the appeal will continue (with the states now defending the payments, even as the Trump Administration doesn't), and Judge Collyer's stay will remain in place, at least until the D.C. Circuit rules on the case. While the stay itself doesn't prevent the President from halting payments, the states' intervention might: Because the D.C. Circuit said that the states demonstrated sufficient harm if the subsidies stop (a condition of intervention), it's not entirely clear that President Trump can stop them. And even if he can, it's not clear that the D.C. Circuit might not prevent him from stopping them (in order not to harm the states).
In other words, the states' intervention might tie the President's hands by forcing him to continue payments, even though the parties to the lawsuit might otherwise agree to stop the payments and let the case go moot.
The uncertainty here comes, on the one hand, from the fact that the President can probably stop the payments whenever he wants, irrespective of the states' intervention or Judge Collyers' ruling and stay. But on the other hand if the states argue that the President has to make payments under the ACA (and not just that he can't be prevented from making payments), then the D.C. Circuit could stop the President from halting payments. This week's ruling suggests, but does not specifically say, that the D.C. Circuit is leaving this latter option open.
But it gets even weirder. The D.C. Circuit might not even rule on the merits. That's because the states will surely challenge the House's standing to bring the case in the first place. If the D.C. Circuit kicks the case on standing grounds, that'll undue Judge Collyer's decision against the payments.
For now, the ball's in the President's court.
Thursday, August 3, 2017
The Hill reports that Senator Lisa Murkowski (R-Alaska) set nine pro forma sessions for the Senate over the August recess. The move means that the body will be in session every three days, even if only very briefly (just to gavel in, then immediately gavel out), so that it won't formally adjourn for the recess. Without an adjournment (more particularly, without formally going into a "recess"), President Trump can't use his recess appointment power.
Senate Republicans effectively used this tactic to frustrate President Obama's efforts to fill key executive slots. In 2014, the Supreme Court sided with the Senate on the practice in NLRB v. Noel Canning. The Court in that case held as a general matter that the Senate is in session when it says it is, and it's not when it says it's not. In particular, it held that a Senate schedule with a pro forma session every three days does not constitute a "recess" under the Recess Appointments Clause (unless the Senate says so). So when the Senate sets an every-three-day pro forma schedule over the August "recess," it similarly isn't in "recess" under the Recess Appointments Clause. And President Trump therefore can't make recess appointments.
President Trump signed the Russia-sanctions bill yesterday, but issued a sweeping constitutional signing statement calling out the "clearly unconstitutional provisions" in this "significantly flawed" legislation.
While the wide-ranging statement says that the President "favor[s] tough measures to punish and deter aggressive and destabilizing behavior by Iran, North Korea, and Russia," it also guts efforts to hold the President's feet to the fire and suggests that the President may enforce the measures (or not enforce them) nearly any way he wants. In short, given the breathtaking sweep of the statement, only time will tell whether and how the President executes the bill.
The last paragraph sums it up:
Finally, my Administration particularly expects the Congress to refrain from using this flawed bill to hinder our important work with European allies to resolve the conflict in Ukraine, and from using it to hinder our efforts to address any unintended consequences it may have for American businesses, our friends, or our allies.
The bill, H.R. 3364, adopts several measures to keep the President on a tight leash with regard to actual enforcement of Russian sanctions and related actions. President Trump identified those specifically. Here's a summary:
Sections 253 and 257: Recognition of Foreign Territorial Changes Effected by Force in Violation of International Law
President Trump argued that these provisions "displace the President's exclusive constitutional authority to recognize foreign governments, including their territorial bounds, in conflict with the Supreme Court's recent decision in Zivotofsky v. Kerry."
Section 253, titled "Statement of Policy," says that "[t]he United States, consistent with the principle of ex injuria jus non oritur, supports the policy known as the "Stimson Doctrine" and thus does not recognize territorial changes effected by force, including the illegal invasions and occupations of Abkhazia, South Ossetia, Crimea, Eastern Ukraine, and Transnistria."
Section 257 deals specifically with Ukraine and says that it's "the policy of the United States to support the Government of Ukraine in restoring its sovereign and territorial integrity; to condemn and oppose all of the destabilizing efforts by the Government of the Russian Federation in Ukraine in violation of its obligations and international commitments; to never recognize the illegal annexation of Crimea by the Government of the Russian Federation or the separation of any portion of Ukrainian territory through the use of military force; to deter the Government of the Russian Federation from further destabilizing and invading Ukraine and other independent countries," among other things.
Section 216: Congressional Oversight and Disapproval of Executive Actions with Regard to Sanctions
President Trump argues that "section 216 seeks to grant the Congress the ability to change the law outside the constitutionally required process" in conflict with INS v. Chadha. In particular, the provisions "purport to allow the Congress to extend the review period through procedures that do not satisfy the requirements for changing the law under Article I, section 7 of the Constitution." But the President "nevertheless expect[s] to honor the bill's extended waiting periods to ensure that the Congress will have a full opportunity to avail itself of the bill's review procedures."
Section 216 creates an oversight and checking process for Congress to review and disapprove of executive actions related to Russia sanctions. The section authorizes Congress to issue a "joint resolution of disapproval" that would halt disapproved presidential actions through a fast-tracked procedure. But ultimate disapproval would require presidential signature or a veto override, so satisfies constitutional requirements.
President Trump doesn't appear to complain about this ultimate disapproval procedure. Instead, he complains about the section's procedure to "extend the review period" in violation of Article I, section 7. In particular, section 216 temporarily halts presidential actions when they're under consideration by Congress, when the President is considering a joint resolution of disapproval, and when Congress is reconsidering a joint resolution of disapproval. According to the President, the temporary halt during these periods violates the presentment requirement, because the resolution would take temporary effect, even though the President hadn't signed it.
Sections 254 and 257: Coordinating Aid and Ukrainian Energy Security
President Trump objected that these provisions "purport to direct my subordinates in the executive branch to undertake certain diplomatic initiatives, in contravention of the President's exclusive constitutional authority to determine the time, scope, and objective of international negotiations."
Section 254 provides a "Countering Russian Influence Fund" and sets goals and standards for using that money, including specifying how the Secretary of State shall coordinate and carry out activities under the fund and how the Secretary can modify the goals of the fund. It also requires the Secretary to "establish a pilot program for Foreign Service officer positions focused on governance and anticorruption activities" in covered countries.
Section 257 requires the Secretary to "work with the Government of Ukraine to develop a plan to increase energy security in Ukraine, increase the amount of energy produced in Ukraine, and reduce Ukraine's reliance on energy imports from the Russia Federation," provides funding for those efforts, and sets standards and provides for congressional oversight.
Various Sections Restricting Entry to U.S.
Finally, the President objected to various provisions restricting visas to individuals who engage in certain, specified behavior, like supporting Iran's ballistic missile program, violating arms embargos, and the like. The President wrote that these provisions "would require me to deny certain individuals entry into the United States, without an exception for the President's responsibility to receive ambassadors under Article II, section 3 of the Constitution."
Tuesday, June 27, 2017
With all the activity at the Court yesterday, we might be excused for missing the Court's non-decision in Hernandez v. Mesa. But even as the Court punted, remanding to the lower court, this is a case we should pay attention to.
The case involved a border patrol agent who shot and killed a Mexican youth just on the other side of the border. (Our oral argument review is here.) The case teed up an important dispute over whether the Fourth Amendment applies outside the United States, and how the Court should decide that question. (The case also asked whether the agent enjoyed qualified immunity for a related Fifth Amendment claim.)
But then the Court added a third QP--whether the plaintiffs had a Bivens claim, an issue that the lower courts dodged--signalling that the Court thought this was a substantial, even threshold, issue. Then just last week in Abbasi the Court ruled that 9/11 detainees did not have a Bivens claim and in the course substantially narrowed the Bivens doctrine. Yesterday the Court put these two pieces together and took them to their logical conclusion: It remanded Hernandez with instructions to consider, as a threshold matter (that is, before the courts gets to the extraterritoriality question, and possibly even before the court gets to the qualified immunity question), whether the plaintiffs have a Bivens claim in light of Abbasi.
This does not bode well for the plaintiffs. That's because the Court in Abbasi all but limited the Bivens "context" to cases that look exactly like the three cases in which the Court has found a Bivens remedy. Outside of that "context," the Court won't extend Bivens if "special factors" counsel against a Bivens remedy. And the Court defined "special factors" broadly enough that it'll be hard to show that they don't.
In other words, the plaintiffs will only prevail if they can show that special factors don't counsel against extending a Bivens remedy to this case. And given the very broad approach to "special factors" in Abbasi, that could be quite hard to do.
At the same time, the Court ruled that the lower court improperly granted qualified immunity to the agent. The Court said that the agent couldn't have known that Hernandez was Mexican (not American), and the lower court therefore erred in relying on the fact that Hernandez was "an alien who had no significant voluntary connection to . . . the United States."
That may be a hollow victory for the plaintiffs, however, if the courts rule as a threshold matter that they lack a Bivens claim. If they so rule, there'll be no need to even consider qualified immunity, or, for that matter, the extraterritorial application of the Fourth Amendment.
Monday, June 19, 2017
The Supreme Court ruled today that post-9/11 "of interest" detainees could not sue executive officials for damages for constitutional violations during their detention. Moreover, the ruling in Ziglar v. Abbasi all but wipes out future damages remedies against federal officials for constitutional violations, except in the very narrow circumstances of three cases where the Court has found such a remedy. (And those cases may be hanging on by just a string.)
The case arose when post-9/11 detainees at a federal detention facility sued then-AG John Ashcroft, then-FBI Director Robert Mueller, and then-INS Commissioner James Ziglar for abusive detention policies in violation of their Fourth- and Fifth-Amendment rights. The plaintiffs sought monetary damages under Bivens.
The Court today rejected those claims. In an opinion abounding with deference to Congress, Justice Kennedy, writing for himself and Chief Justice Roberts and Justices Thomas and Alito (Justices Sotomayor, Kagan, and Gorsuch were all recused), held that the case raised a new Bivens context and that special factors counseled against a Bivens remedy.
As to context, the Court set out this test:
If the case is different in a meaningful way from previous Bivens cases decided by this Court, then the context is new. Without endeavoring to create an exhaustive list of differences that are meaningful enough to make a given context a new one, some examples might prove instructive. A case might differ in a meaningful way because of the rank of the officers involved; the constitutional right at issue; the generality or specificity of the official action; the extent of judicial guidance as to how an officer should respond to the problem or emergency to be confronted; the statutory or other legal mandate under which the officer was operating; the risk or disruptive intrusion by the Judiciary into the functioning of other branches; or the present of potential special factors that previous Bivens cases did not consider.
In other words, if a new case isn't nearly on all fours with one of the three cases where the Court has found a Bivens remedy--Bivens itself (a Fourth Amendment violation), Davis v. Passman (an assistant's Fifth Amendment Due Process claim against a Congressman for gender discrimination), and Carlson v. Green (a prisoner's estate's Eighth Amendment Cruel-and-Unusual claim)--there's a new context. And the Court said that this case presented a new context.
As to special factors, the Court said that the claims "call[ed] into question the formulation and implementation of a general policy," that the policy related to the government's response to the 9/11 attacks (a national security concern, traditionally an area for the executive), that Congress had not provided a damages remedy, and that other remedies (injunctive relief, a habeas claim) were available.
Between the Court's very narrow view of new circumstances and its very broad view of special factors counseling against a Bivens remedy, this case failed. And the ruling ensures that very few future Bivens cases will succeed.
On another issue, the Court remanded a related claim against the prison warden, instructing the lower court to conduct a special-factors analysis. Finally, the Court rejected the plaintiffs' civil-rights conspiracy claim, holding that the defendants enjoyed qualified immunity, because the question whether officials all within the executive branch could constitute a conspiracy "is sufficiently open so that the officials in this suit could not be certain that [conspiracy] was applicable to their discussions and actions."
Justice Breyer dissented, joined by Justice Ginsburg.
Wednesday, June 14, 2017
The Third Circuit last week dismissed a case challenging an elected candidate's qualifications for the Virgin Islands legislature. The ruling means that the elected candidate will not be seated.
The case arose when Kevin Rodriguez was elected to serve in the Virgin Islands Legislature. After the election, but before the swearing-in, a rival candidate, Janelle Sarauw, challenged Rodriguez's qualifications to serve, based on Rodriguez's prior representation in a bankruptcy case that he lived in Tennessee. (The VI Revised Organic Act requires that a person serving in the VI legislature reside in the VI for at least three years preceding the date of his or her election.) Sarauw sued in the VI courts and sought an injunction compelling the Board of Elections to de-certify Rodriguez as a qualified candidate, thus preventing him from taking a seat in the 32nd Legislature. (The Board, an independently elected body outside the legislature and judiciary, has authority under the ROA to determine qualifications of candidates before swearing in.)
While that case was moving up and down the VI courts, the 32nd Legislature was sworn in (without Rodriguez, because the courts were still working out how to deal with his qualification). Rodriguez then removed the case to federal court (remember, this is all federal law, including the ROA, because of the VI's status in relation to the US), asking for an injunction directing the 32nd Legislature to seat him.
The Third Circuit tossed the case. The court ruled that the courts lacked authority to rule a candidate qualified after the swearing in, because the ROA says that the legislature shall have the sole power to determine the qualifications of its members. In other words, the issue was textually committed to a coordinate branch of government--a political question. (The court ruled that the ROA contains separation-of-powers principles, which form the basis of the political question doctrine.) The court noted that separation-of-powers and the ROA would not prohibit the courts from ruling on a candidate's qualifications before swearing in, when the Board has authority to make such a determination, because the separation of powers don't apply to the Board, "a popularly elected and independent entity" that's not a part of the legislative or judicial branches. But Rodriguez only removed his case after the swearing-in, so his case was always a political question.
The court also ruled that the portion of the case brought by Sarauw, the "removed case," was moot, because the legislature had already been sworn in.
Along the way, the governor ordered a special election, and Sarauw won.
Sunday, May 21, 2017
Deputy AG Rod Rosenstein's press release announcing the appointment of former FBI Director Robert S. Mueller III to serve as Special Counsel is here. The appointment order is here. The order includes the following authority:
to conduct the investigation confirmed by then-FBI Director James B. Comey in testimony before the House Permanent Select Committee on Intelligence on March 20, 2017, including:
(i) any links and/or coordination between the Russian government and individuals associated with the campaign of President Donald Trump; and
(ii) any matters that arose or may arise directly from the investigation; and
(iii) any other matters within the scope of 28 CFR Sec. 600.4(a).
Rosenstein is acting AG for the purpose of the appointment, because AG Sessions recused himself. As Acting AG, Rosenstein has the AG's authority to appoint a special counsel under 28 USC 515.
DOJ regs on special counsel are at 28 CFR 600.1 - 600.10. Section 600.4 says that the special counsel's jurisdiction is set by the AG (or in this case the Acting AG) and provides for additional jurisdiction, with permission of the AG. Section 600.6 sets out the special counsel's power and authority, and provides for its independence. Section 600.7 says who the special counsel reports to ("The Special Counsel shall not be subject to the day-to-day supervision of any official of the Department."), when and how the AG can intervene in the Special Counsel's operations (when the AG concludes that "the action is so inappropriate or unwarranted under established Departmental practices that it should not be pursued."), and when and how the Special Counsel can be disciplined or removed ("for misconduct, dereliction of duty, incapacity, conflict of interest, or for other good cause, including violation of Departmental policies.").
Wednesday, May 17, 2017
The D.C. Circuit ruled yesterday that Backpage.com's challenge to a subpoena issued by the Senate Permanent Subcommittee on Investigations was moot. The court dismissed Backpage.com's case and vacated earlier district court rulings.
The case arose when the Subcommittee sought to enforce its subpoena for Backpage.com documents to aid its investigation into the web-site's facilitation of sex trafficking. While the case worked its way between the district court and the D.C. Circuit, Backpage.com voluntarily provided the Subcommittee with a good many of the documents the Subcommittee sought (but withheld some other documents under claims of privilege). Before the D.C. Circuit could rule on Backpage.com's challenge to the subpoena, the Subcommittee wrapped up its investigation based on the released documents and issued its final report. The Subcommittee then moved to dismiss the case as moot.
In its ruling yesterday, the D.C. Circuit agreed with the Subcommittee. The court rejected Backpage.com's argument that the district court might still order some relief (for example, an order that the Subcommittee destroy or return the documents still in its possession), thus keeping the case alive, because "the separation of powers, including the Speech or Debate Clause," bars a court from ordering a congressional committee to release documents used in a lawful investigation. In particular, the court wrote that under circuit law "the Clause affords Congress a 'privilege to use materials in its possession without judicial interference,' even where unlawful acts facilitated their acquisition." (Unlawful acts did not facilitate their acquisition here; instead, Backpage.com provided them.) In short, once documents come into the hands of a committee, "the subsequent use of the documents by the committee staff in the course of official business is privileged legislative activity."
The court rejected Backpage.com's argument that the Subcommittee waived its privilege by voluntarily subjecting itself to the court's jurisdiction (when it filed to enforce the subpoena): "[w]hen Congress petitions the court in a subpoena enforcement action, Congress does not waive its immunity from court interference with its exercise of its constitutional powers."
The court also rejected Backpage.com's argument that the case was capable of repetition but evading review. The court said a repeat was simply too speculative.
The ruling doesn't leave future subjects of congressional subpoenas without a remedy. According to the court, such subjects should refuse to comply during the legal proceedings so that the courts can hear their objections on the merits.
In other words, Backpage.com's mistake was voluntarily releasing the documents in the first place.
The separation-of-powers part of the ruling stands in contrast to the Court's holding in Church of Scientology of California v. United States, a case that the D.C. Circuit distinguished. In Church of Scientology, the IRS filed a petition to enforce a summons against a state-court clerk for tape recordings related to the Church in district court, and the Church intervened to oppose. While the case was on appeal, the clerk released the tapes to the IRS, at while point the appellate court dismissed the case as moot. The Supreme Court reversed, however, explaining that the case remained alive because the district court could still issue relief to the Church--a "destroy or return" order.
The D.C. Circuit said that Church of Scientology was different, however, because "the separation of powers, including the Speech or Debate Clause," bars a court from ordering that same kind of relief against Congress.
Tuesday, April 25, 2017
Judge William H. Orrick (N.D. Cal.) issued a nationwide temporary injunction halting President Trump's executive order that sought to clamp down on sanctuary cities.
The ruling was a broadside against the EO, handing the plaintiffs, Santa Clara County and San Francisco, a decisive preliminary victory on nearly all the points they raised. But at the same time, the ruling is preliminary, and holds only that the plaintiffs are likely to succeed on the merits of their various claims. It's also certain to be appealed.
The ruling comes closely on the heels of the Justice Department's move last week to begin enforcement of the EO by informing certain "sanctuary cities" that they could lose DOJ Justice Assistance Grants if they failed to provide "documentation and an opinion from legal counsel" that they were in compliance with Section 1373.
But the lawsuit challenged the EO on its face, and not just as applied to DOJ JAG grants. And that turned out to be critical in Judge Orrick's decision. In particular, Judge Orrick held that the plain language of the EO threatened all "federal grants" to sanctuary cities, notwithstanding the administration's attempts to narrow that language. (Judge Orrick flatly rejected attempts to limit the EO, taking judicial notice of a variety of public statements of President Trump and administration officials about the breadth of the program.) Because the EO put all "federal grants" on the chopping block, Judge Orrick said that it swept way too far. (Judge Orrick wrote that nothing in the injunction prohibited the administration from enforcing lawful conditions on federal grants, or enforcing Section 1373, or designating jurisdictions as "sanctuary jurisdictions.")
Judge Orrick ruled that the plaintiffs were likely to succeed on the merits of their separation-of-powers claim, because "Section 9 [of the Order, which conditions federal grants on compliance with Section 1373] purports to give the Attorney General and the Secretary the power to place a new condition on federal funds (compliance with Section 1373) not provided for by Congress." This was particularly troubling, because Congress has several times declined to put like conditions on other federal immigration laws.
Judge Orrick also ruled that the plaintiffs were likely to succeed on the merits of their Spending Clause claim, because (1) the conditions in the EO were not unambiguous (because it didn't exist when the states signed up for many of their federal grants, and because so much of the language is vague), (2) there's not a sufficient nexus between the federal funds at issue (from any federal grant) and compliance with Section 1373, and (3) the EO is coercive (because it could deny to local governments all their federal grants).
Judge Orrick also ruled that the plaintiffs were likely to succeed on their Tenth Amendment challenge (because the EO would compel state and local governments "to enforce a federal regulatory program through coercion" and require state and local jurisdictions to honor civil detainer requests), their void-for-vagueness challenge (because so much of the EO is, well, vague), and their Due Process claim (because the EO contains no process before the feds could withhold already-issued federal grants).
In short, Judge Orrick ruled for the plaintiffs on all their claims. Just one went the other way: Judge Orrick declined to issue an injunction against President Trump himself.
Despite the lofty separation-of-powers and federalism issues that were (and are) at the core of the case, a good chunk of the ruling dealt with justiciability. Judge Orrick ruled that the plaintiffs had standing (because they suffered current budget uncertainty or a required change in policies to comply with the EO) and that the claims were ripe (because of the threatened injury, under MedImmune, Inc. v. Genentech).
Wednesday, April 12, 2017
Update: Might've spoken a little too soon. President Trump told the WSJ yesterday that he's still considering withholding subsidies.
The Trump Administration will continue to pay subsidies to health insurance companies on the exchanges under the Affordable Care Act, despite a district court ruling against the Obama Administration that they are illegal, according to the NYT.
The decision will help to keep the exchanges operating.
Recall that Judge Rosemary Collyer (D.D.C.) ruled that the Obama Administration illegally spent money on the subsidies to ACA exchange insurers without a valid congressional authorization.
The ACA provides for the subsidies, but Congress didn't fund them. President Obama went ahead and paid them, anyway.
The lawsuit, brought by congressional Republicans, is on appeal. The Trump Administration hasn't announced its position in the litigation, beyond saying that it'll continue to fund the subsidies for now.
Aramis Ayala, the State Attorney for Florida's Ninth Judicial Circuit, filed suit yesterday against Governor Rick Scott over Scott's effort to remove Ayala from 23 pending homicide cases. Scott issued a series of executive orders purporting to transfer the cases to a neighboring state attorney after Ayala announced that she would not seek the death penalty in some of those cases.
Ayala's lawsuit raises state constitutional separation-of-powers issues, pitting the independently-elected State Attorney's authority to prosecute cases within her jurisdiction against the Governor's authority to execute the law.
In particular, Ayala argues in her state supreme court writ of quo warranto that Scott's executive orders violate the state attorney's power to prosecute all cases in that circuit. Article V, Section 17 of the Florida Constitution provides that the state attorney for each judicial circuit "shall be the prosecuting officer in all trial courts in that circuit." The constitution contains two exceptions, but neither applies. Ayala argues that Scott's executive orders violate the provision vesting her office alone with prosecutorial authority within her district.
Ayala also claims that the governor's constitutional powers to "take care that the laws be faithfully executed" and "supreme executive power" don't authorize his actions, because the Florida Constitution specifically allotted her powers in Article V, Section 17.
Finally, Ayala contends that Scott's moves violate functional separation of powers. Drawing on Florida's strict separation clause ("No person belonging to one branch of government shall exercise any powers appertaining to either of the other branches unless expressly provided herein."), Ayala says that Scott's executive orders infringe on her role as a quasi-judicial officer and on the state judiciary itself:
Here, Scott has purported to remove Ayala entirely from the cases that his orders apply to. So under the Governor's orders, not only would Ayala not decide whether to seek the death penalty here, she also would not participate in other crucial aspects of the case, including ensuring compliance with Brady v. Maryland, safeguarding a fair trial, and considering the interests of the victims and the public. Those latter functions are precisely those that an independent judiciary protects and that the executive may not meddle in.
Friday, April 7, 2017
For a deeper dive into the constitutional law, check out these:
Here are links to the cited OLC memos:
For a broader, historical approach, check out this CRS report on Congressional Authority to Limit U.S. Military Operations.
Tuesday, February 21, 2017
The Supreme Court heard oral arguments today in Hernandez v. Mesa, the case testing whether the family of a Mexican youth can sue a border patrol agent for Fourth and Fifth Amendment violations for shooting and killing the youth while the agent was on the U.S. side of the border, but the youth was in the concrete border culvert, 60 feet into Mexico.
The parties briefed three issues--whether a formalist or functionalist approach governs the Fourth Amendment's application outside the U.S., whether the officer enjoyed qualified immunity for the Fifth Amendment violation, and whether Bivens provided a remedy--but only two were really on display today: the extraterritorial application of the Fourth Amendment, and Bivens. And if the arguments are any prediction, it looks like a closely divided Court could rule for the agent. But the case could also be a good candidate for re-argument, when a ninth Justice joins the Court.
The plaintiffs' biggest problem was defining a workable test for the application of the Fourth Amendment. The formalist approach has the benefit of providing a bright-line for the application of the Fourth Amendment--the actual border. But the functional approach (or something like it) is more flexible in a situation like this, where the difference in a remedy could (absurdly, to some) be measured in the 60-foot distance between Hernandez and the U.S. border when he was shot.
Trying to walk a line between a rigid-border approach and a functional approach without any clear and determinate limits, the plaintiffs argued for a test that would apply the Fourth Amendment only in the culvert area straddling the border--an area that includes both U.S. and Mexican territory, but just barely. They justified this case-specific approach on the number of cross-border shootings that occurred of late: a particular problem demands a particular solution.
Justices Ginsburg, Breyer, Sotomayor, and Kagan seemed on board with this approach; Chief Justice Roberts and Justice Alito did not. If the Court splits 4-4 on the issue (as seems likely), the lower court ruling simply stays in place. That ruling said that neither the Fourth nor Fifth Amendment applied, and that Hernandez therefore had no federal constitutional remedy.
But whatever the Court says about the "extraterritorial" application of the Fourth Amendment, there's another issue--a threshold one: Bivens. Here, the Justices seemed to divide along conventional political lines. Justice Kennedy well outlined the conservatives' case when he asked the plaintiffs this:
Since 1988, this Court has not recognized a single Bivens action. We look for special considerations. You've indicated that there's a problem all along the border. Why doesn't that counsel us that this is one of the most sensitive areas of foreign affairs where the political branches should discuss with Mexico what the solution ought to be? It seems to me that this is an extraordinary case for us to say there's a Bivens action in light of what we've done since 1988 where we haven't created a single one.
The four conventional progressives pushed back, equally hard.
If the Court divides 4-4 on Bivens, as seems likely, it might not matter to the outcome, because a 4-4 split on extraterritoriality would hand the win to Mesa, the border agent. But a 4-4 split on Bivens would leave open a substantial question that the Court itself directed the parties to answer: does Bivens provide a remedy here? Because there's no lower-court ruling on Bivens (the en banc Fifth Circuit did not address the issue, and only reinstated the non-Bivens portions of the panel ruling), a 4-4 split would not even leave in a place a lower court ruling. Given that the Court itself added this question--suggesting that it would like an answer--a 4-4 split may mean that the Court holds this case over for re-argument with a ninth Justice.
Wednesday, February 8, 2017
Public Citizen, the NRDC, and the Communications Workers of America (AFL-CIO) sued the Trump administration today over President Trump's two-for-one administrative regulation executive order. That EO requires an agency to revoke two regulations for every new regulation it adopts.
The plaintiffs argue that the EO violates the separation of powers, the Take Care Clause, and the Administrative Procedure Act, among others. In short:
To repeal two regulations for the purpose of adopting one new one, based solely on a directive to impose zero net costs without any consideration of benefits, is arbitrary, capricious, an abuse of discretion, and not in accordance with law, for at least three reasons. First, no governing statute authorizes any agency to withhold a regulation intended to address identified harms to public safety, health, or other statutory objectives on the basis of an arbitrary upper limit on total costs (for fiscal year 2017, a limit of $0) that regulations may impose on regulated entities or the economy. Second, the Executive Order forces agencies to repeal regulations that they have already determined, through notice-and-comment rulemaking, advance the purposes of the underlying statutes, and forces the agencies to do so for the sole purpose of eliminating costs that the underlying statutes do not direct be eliminated. Third, no governing statute authorizes an agency to base its actions on a decisionmaking criterion of zero net cost across multiple regulations.
The plaintiffs say that the EO violates the separation of powers, because "[b]y requiring agencies engaged in rulemaking to consider and take final action or to withhold final action based on factors that are impermissible and arbitrary under the governing statutes, the Executive Order purports to amend the statutes through which Congress has delegated rulemaking authority to federal agencies." They say it violates the Take Care Clause, because it "directs agencies to take action contrary to numerous laws passed by Congress." (The plaintiffs also bring claims under non-statutory review of ultra vires action, and the APA.)
The plaintiffs point to harms they'll incur under several statutes, if administrative agencies follow the two-for-one rule. Those include the Motor Vehicle Safety Act and Motor Carrier Safety Act, OSHA, the Mine Safety and Health Act, the Toxic Substance Control Act, and several other environmental protection acts.
The plaintiffs point to harms (for standing purposes) throughout, including organizational harms (by requiring the plaintiffs to shift advocacy priorities) and member harms (because a lack of regulation, where a statute requires it, will harm individual members).