Wednesday, April 20, 2016
The Supreme Court ruled today in Bank Markazi v. Peterson that Congress did not tread on the courts' territory in violation of the separation of powers by enacting a statute that ensured that the plaintiffs in an enforcement action would get the assets that they sought (and therefore win).
The ruling backs off the rule in United States v. Klein--that Congress can't legislate a rule of decision in a case--and thus gives somewhat wider berth to Congress (relative to Klein) to enact laws that impact currently pending cases. At the same time, however, the ruling reiterates familiar limits on Congress's authority over the judiciary.
This is the case in which over 1,000 victims of Iranian-sponsored terrorism and their families filed in the Southern District of New York to enforce their monetary judgments against Iran--through assets owned by Bank Markazi, the Central Bank of Iran, held in a New York bank account--for sponsoring terrorism.
While this claim was pending, Congress passed a law saying that, if a court makes specific findings, "a financial asset . . . shall be subject to execution . . . in order to satisfy any judgment to the extent of any compensatory damages awarded against Iran for damages for personal injury or death caused by" certain acts of terrorism. The law goes on to define available assets as "the financial assets that are identified in and the subject of proceedings in the United States District Court for the Southern District of New York in Peterson et al. v. Islamic Republic of Iran et al., Case No. 10 Civ. 4518 (BSJ) (GWG), that were restrained by restraining notices and levies secured by the plaintiffs in those proceedings."
In other words, the newly enacted law, 22 U.S.C. Sec. 8772, ensured that the plaintiffs in this case would get these assets, notwithstanding the Bank's defenses.
The Bank claimed that the law violated the separation of powers--in particular, that Congress overstepped by directing the outcome of a case, in violation of United States v. Klein.
But the Supreme Court disagreed. Justice Ginsburg wrote the opinion for all but Chief Justice Roberts and Justice Sotomayor (and Justice Thomas, for a part of the opinion). She wrote that Congress may amend the law and apply the amendment to pending cases, even when the amendment is outcome determinative. She then said that's exactly what Congress did here: it wrote a law that covers all the various post-judgment execution claims that were consolidated in this case. She said it did not create a "one-case-only regime."
Justice Ginsburg also wrote that the law related to foreign policy--an area where the courts traditionally defer to the President and Congress. "The Executive has historically made case-specific sovereign-immunity determinations to which courts have deferred. Any exercise by Congress and the President of control over claims against foreign governments, as well as foreign-government-owned property in the United States, is hardly a novelty."
Along the way, Justice Ginsburg backed off on Klein. She wrote that Klein has been called "a deeply puzzling decision," and that "[m]ore recent decisions, however, have made it clear that Klein does not inhibit Congress from "amend[ing] applicable law." At the same time, she reiterated familiar limits: "Necessarily, [the courts' authority] blocks Congress from 'requir[ing] federal courts to exercise the judicial power in a manner that Article III forbids," "Congress, no doubt, 'may not usurp a court's power to interpret and apply the law to the [circumstances] before it," and "our decisions place off limits to Congress 'vest[ing] review of the decisions of Article III courts in officials of the Executive Branch.'" "Congress, we have also held, may not 'retroactively comman[d] the federal courts to reopen final judgments." Plaut v. Spendthrift Farm, Inc.
Chief Justice Roberts, joined by Justice Sotomayor, dissented. He argued, in short, "[n]o less than if it had passed a law saying 'respondents win,' Congress has decided this case by enacting a bespoke statute tailored to this case that resolves the parties' specific legal disputes to guarantee respondents victory"--and therefore violates the separation of powers.
Friday, April 15, 2016
The Supreme Court will hear oral arguments on Monday in United States v. Texas, the challenge to DAPA, the deferred action program for certain unauthorized aliens.The case involves two core issues: Does a state have standing to challenge DAPA; and does DAPA violate the APA or the Take Care Clause?
Here's my oral argument preview in the ABA Preview of United States Supreme Court Cases, with permission:
On November 20, 2014, the Secretary of Homeland Security, Jeh Johnson, issued a memorandum (called “guidance” by the government) that announced “new policies for the use of deferred action” for certain aliens who are not removal priorities for the Department. The memo directed the U.S. Citizenship and Immigration Services (USCIS) “to establish a process . . . for exercising prosecutorial discretion through the use of deferred action, on a case-by-case basis,” for certain parents of U.S. citizens or lawful permanent residents. The process is called Deferred Action for Parents of Americans and Lawful Permanent Residents, or “DAPA.” To qualify, an applicant must (1) be the parent of a U.S. citizen or lawful permanent resident as of November 20, 2014; (2) have continuously resided in the United States since January 1, 2010, or before; (3) have been physically present here on November 20, 2014, and when applying for DAPA; (4) have no lawful immigration status on that date; (5) not fall within the Secretary’s enforcement priorities (which the Secretary set out in a companion memo, and which include removing aliens who are serious criminals and terrorists); and (6) “present no other factors that, in the exercise of discretion, make the grant of deferred action inappropriate.” The Secretary’s memo also expanded the criteria for deferred action under the earlier 2012 Deferred Action for Childhood Arrivals policy, or “DACA.”
The Secretary’s memo explained that DAPA would reach “hard-working people who have become integrated members of American society,” have not committed serious crimes, and “are extremely unlikely to be deported” given the Department’s “limited enforcement resources.” Moreover, it would advance “this Nation’s security and economic interests and make common sense, because [it] encourage[s] these people to come out of the shadows, submit to background checks, pay fees, apply for work authorization . . . and be counted.” The memo emphasized that DAPA does not establish any right to deferred action, and that deferred action “does not confer any form of legal status” and “may be terminated at any time at the agency’s discretion.”
Under longstanding federal law, which recognizes deferred action, an alien with deferred action may apply for work authorization based on economic need. In addition, an alien with deferred action may qualify for certain federal earned-benefit programs that come with lawful work, such as Social Security retirement and disability, Medicare, and railroad-worker programs. But an alien with deferred action is not eligible to receive food stamps, Supplemental Security Income, temporary aid for need families, and many other federal public benefits. And an alien with deferred action is not eligible for any “[s]tate or local public benefit,” although states may voluntarily extend certain benefits to aliens with deferred action. For example, Texas voluntarily permitted an alien with deferred action to apply for and receive a driver’s license, which Texas subsidized.
On December 3, 2014, Texas and other states sued the Department, seeking declaratory and injunctive relief against implementation of DAPA. The plaintiffs alleged that DAPA violated the Take Care Clause of the Constitution and the Administrative Procedures Act. The district court entered a nationwide preliminary injunction against implementation of DAPA.
A divided panel of the United States Court of Appeals for the Fifth Circuit affirmed. The court ruled that at least one plaintiff, Texas, had standing, because state law would require it to subsidize a driver’s license for an alien with deferred action under DAPA. The court also ruled that the plaintiffs were substantially likely to succeed on their claim that the Department should have used notice-and-comment rulemaking (and not a mere memo by the Director) to implement DAPA. Finally, the court ruled that DAPA was “manifestly contrary” to the Immigration and Naturalization Act.
This appeal followed.
The case involves two principal issues. Let’s take them one at a time.
Under Article III of the Constitution, in order to bring this case in federal court, at least one state has to show (1) that it suffered an actual or imminent “injury in fact,” (2) that DAPA caused, or will cause, the injury, and (3) that the lawsuit will redress the injury. Moreover, in order to sue under the APA, the states’ interests have to fall within the “zone of interests” of the relevant statute, here the INA. The parties frame their arguments around these rules.
The government argues first that no state has Article III standing, because DAPA does not directly injure the states or require them to do anything. The government says that any injury that DAPA causes the states is only indirect and incidental, and that states cannot establish standing on the basis of an indirect or incidental injury from the operation of immigration law (which the Constitution assigns exclusively to the federal government). Moreover, the government asserts that the claimed injury here, Texas’s costs in subsidizing temporary visitor driver’s licenses for aliens, is entirely self-imposed. The government contends that recognizing these kinds of injuries would permit states to force cases over a wide swath of federal programs, essentially allowing states to challenge the federal government at nearly every turn.
The government argues next that the states cannot sue under the APA, because their interests are not within the zone of interests under the INA. The government says that the states’ asserted interests—“reserving jobs for those lawfully entitled to work” and “comment[ing] on administrative decisionmaking”—are different than their interests in Article III standing (discussed above), and that they therefore impermissibly mix-and-match their interests for standing and APA purposes. The government also claims that the states’ asserted interests for their APA challenge, if accepted, would effectively eliminate the zone-of-interest requirement under the INA and open the door to a federal suit by any state that is unhappy with federal immigration policy.
Finally, the government argues that the executive’s enforcement discretion, including the enforcement discretion reflected in DAPA, is traditionally immune from judicial review. The government says that the decision to permit aliens to work, as an attribute of enforcement discretion, is similarly unreviewable in court.
The states argue that they have Article III standing, because DAPA requires at least one of them, Texas, to incur costs in subsidizing driver’s licenses. The states say that this injury is legitimate and not manufactured (because the driver’s license subsidy was already on the books), and therefore satisfies the Article III injury requirement. The states contend that DAPA also requires them to incur costs related to healthcare, education, and law enforcement. And they assert that they have standing to protect their citizens from “labor-market distortions, such as those caused by granting work authorization to millions of unauthorized aliens.” The states contend that they are entitled to “special solicitude” in the standing analysis under Massachusetts v. EPA. 549 U.S. 497 (2007).
The states argue next that they can challenge DAPA under the APA, because their interests fall squarely within the zone of interests in the INA. They say that DAPA grants lawful presence and eligibility for work authorization and other benefits, the crux of their interests. They say moreover that the INA does not grant the Department discretion to do this. Thus, they claim that their interests fall squarely within the zone of interests protected by the INA.
Under basic separation-of-powers principles, Congress is charged with making the law, and the President is charged with executing it. This means that administrative action like DAPA cannot violate the INA. Under the APA, it also means that DAPA must go through notice-and-comment rulemaking, if DAPA is a new “rule” (although DAPA need not go through notice-and-comment rulemaking if it is merely a new policy). Finally, under the Take Care Clause, it means that DAPA must be a proper execution of federal law, again the INA. The parties touch on each of these principles.
The government argues that the INA provides the Secretary ample authority for DAPA. The government claims that under the INA Congress has directed the Secretary to focus limited resources on removing serious criminals and securing the border, and that DAPA, in deferring action for aliens who are not priorities for removal, is perfectly consistent with this. The government claims that DAPA serves the additional purposes of “extending a measure of repose to individuals who have long and strong ties to the community” and encouraging hard work, on the books, so as to minimize competitive harm to American workers.
The government argues next that DAPA has deep historical roots. It says that the Department and the Immigration and Naturalization Service before it have adopted more than 20 similar policies in the last 50 years, deferring deportation for large numbers of aliens in defined categories. Since the early 1970s, each of these actions has also resulted in eligibility for work authorization—a practice that was codified in formal regulations in 1981. The government contends that Congress has repeatedly ratified the Department’s authority, with full knowledge of these policies.
Third, the government argues that the states are wrong to say that DAPA violates the INA. The government claims that the INA itself and past practice refute the states’ assertion that the Secretary can only authorize deferred action and work authorization for categories of aliens that Congress has specifically identified. Moreover, it claims that even the states agree that the Secretary could provide separate temporary reprieve for every one of the individuals covered by DAPA, so DAPA itself cannot be “too big.” And the government points out that longstanding regulations permit the Secretary to authorize lawful work for aliens covered by deferred action.
Fourth, the government argues that DAPA is simply a policy statement regarding how the Department will exercise discretionary authority—and not a binding rule that requires notice-and-comment procedures. Indeed, the government points out that no prior deferred action policy has been subject to notice-and-comment requirements. The government says that DAPA requires Department agents to exercise discretion in granting deferred action, and that DAPA is no less a “policy” than one that gives individual agents authority to be less forgiving for specific reasons in any individual case.
Finally, the government argues that the Take Care Clause provides the states with no basis for relief. The government claims that the Take Care arguments are simply dressed-up versions of their statutory arguments, and that in any event the Take Care Clause is nonjusticiable. But even if the Take Care Clause requires something different than the statutory analysis, and even if it is justiciable, the government says that the Secretary has complied with it by enforcing and executing the INA (for the reasons stated above).
The states argue that DAPA violates the INA. They say that Congress has to expressly authorize the executive to defer removal for whole categories of aliens, because this question is so central to the INA’s statutory scheme. But they claim that Congress has not done this. They also contend that DAPA flouts the 1996 amendments to immigration statutes that deny certain benefits to unlawfully present aliens whom the executive elects not to remove. And they say that DAPA would render meaningless Congress’s comprehensive framework, which “define[s] numerous categories of aliens that are entitled to or eligible for work authorization.”
The states argue next that DAPA is invalid, because it was promulgated without notice-and-comment procedures. The states claim that DAPA is a substantive binding rule, not a policy, and was therefore subject to notice-and-comment requirements. They say that the President compared DAPA to a military order and promised consequences for officials who defied it. They also say that it gives no discretion to Department officials in its enforcement. Moreover, the states contend that DAPA is a rule because it affects individual rights and obligations, using legislative-type criteria to determine whether an alien qualifies for substantial government benefits. The states assert that “[t]his change is immensely important to the Nation and requires at least public participation through notice-and-comment procedure.”
Finally, the states argue that DAPA violates the Take Care Clause. They claim that DAPA declares conduct that Congress has determined unlawful to be lawful. They say that this is precisely the kind of power grab that the Take Care Clause was designed to prevent.
At its core, this case is about the meaning and sweep of DAPA. By the Secretary’s reckoning, DAPA is merely a policy that guides the discretion of Department agents in enforcing the INA—the same way that any Department policy might guide an agent’s discretion, well within the discretion authorized by the INA. But by the states’ reckoning, DAPA is a new and binding rule that contradicts the INA: it represents the executive’s effort to change the law, not simply enforce it.
To sort this out, the Court will look at the precise language of the INA and DAPA itself, of course. But it will also look to other indicia of congressional intent to enforce the INA. These may include things like congressional awareness of and acquiescence to longstanding Department regulations that seem to assume that the Department may use deferred action, and which grant benefits as a result of it. These may also include congressional appropriations, which amounted to $6 billion in 2016. This was enough to deport only a small portion of the estimated 11 million undocumented aliens currently living in the United States, thus strongly suggesting that Congress intended the Department not to remove large populations of unlawfully present aliens. (The government points out that the Department has recently been setting records for removals in a year, but still only removing about 440,000 in 2013, for example.) Finally, the Court will look at the Department’s prior deferred action policies, which at different times since 1960 covered undocumented Cuban nationals after the Cuban Revolution, undocumented spouses and children of aliens with legalized status, individuals who sought lawful status as battered spouses or victims of human trafficking, foreign students affected by Hurricane Katrina, widows and widowers of U.S. citizens who had no other avenue of immigration relief, and certain aliens who came to the U.S. as children.
Here’s one thing the Court won’t look at: the Department’s actual enforcement of DAPA. That’s because the states filed suit before the Department implemented DAPA, and so there is no record of Department enforcement of DAPA. The states claim that Department agents will implement DAPA much as they implemented DACA, and that under DACA agents did not exercise discretion in individual cases (suggesting that DACA and DAPA are new rules, and not merely policies guiding individual agent’s discretion).
Aside from the merits, the first issue in the case, standing, could be dispositive. It is not at all obvious that the states have standing under Court precedent. In perhaps the closest case, Massachusetts v. EPA, the Court held that the state had standing to challenge the EPA’s failure to regulate greenhouse gases, based on the state’s loss of coastline due to rising sea levels (due to increased greenhouse gases). But Massachusetts is hardly on all fours with this case. Still, it will likely play an important role in oral argument.
But it’s easy to think that these doctrinal issues are really just cover for underlying policy and political disputes. On the policy side, the case raises the important and contested questions of whether and how to deal with some of the 11 million unauthorized aliens in the United States. In particular: Should we protect certain classes of unauthorized aliens from immediate deportation for economic reasons (because they provide a net benefit to our economy), humanitarian reasons (to keep families together, for example), or just plain fairness reasons? The case also raises the important and contested question of who decides—the federal government, or the states. The Court answered that question unequivocally in favor of the federal government just four years ago in Arizona v. United States, 567 U.S. ___ (2012), the SB 1070 case. This case gives the Court another crack at it.
On the political side, the case is (obviously) yet another battle in the continuing war between Republicans and President Obama over immigration and executive authority. All twenty-six states that brought the case are led by Republican governors. (Yet at least one state that has a far more sizeable portion of the unauthorized alien population in the U.S., California, led by a Democrat, is notably absent from the suit.) Moreover, President Obama said that he initiated DACA and DAPA in the first place as a reaction to congressional (Republican) failure to take up immigration reform. The case is thus at the center of the ongoing dispute between a Democratic President who in the face of congressional intransigence has governed by executive order, and the Republican opposition that claims that this represents “executive overreach.”
The Ninth Circuit ruled yesterday in CFPB v. Gordon that Consumer Financial Protection Bureau Chief Richard Cordray had authority and standing to bring an enforcement claim against Chance Gordon, a California attorney and putative provider of home loan modification services.
The ruling is a win for the hotly contested CFPB and Cordray's authority during the period after his recess appointment but before his Senate confirmation.
President Obama initially appointed Cordray by recess appointment on January 4, 2012--the same day that he appointed three individuals to the NLRB by recess appointment, an act that the Supreme Court ruled invalid in Noel Canning. President Obama later renominated Cordray, and he was confirmed by the Senate on July 16, 2013. A month and a half later, the CFPB issued a Notice of Ratification, ratifying all of Cordray's actions from January 4, 2012, through July 17, 2013.
The CFPB filed a civil enforcement action against Gordon in July 2012, apparently in this ratification period. Gordon moved to dismiss for lack of standing and for a violation of the Appointments Clause. A split panel of the Ninth Circuit rejected his claims.
The court ruled first that Cordray's appointment has nothing to do with Article III standing, because executive enforcement is independent of Article III. The court explained:
Here, Congress authorized the CFPB to bring actions in federal court to enforce certain consumer protection statutes and regulations. And with this authorization, the Executive Branch, through the CFPB, need not suffer a "particularized injury"--it is charged under Article II to enforce federal law. That its director was improperly appointed does not alter the Executive Branch's interest or power in having federal law enforced . . . . While the failure to have a properly confirmed director may raise Article II Appointments Clause issues, it does not implicate our Article III jurisdiction to hear this case.
Moreover, the court held that Cordray's ratification cures any Appointments Clause deficiencies that might otherwise destroy the CFPB's enforcement action against Gordon. In other words, Cordray ratified all his prior actions after his recess appointment but before his Senate confirmation, including the civil enforcement action against Gordon, and that solved any problems that he might have had for actions taken during that period.
Judge Ikuta dissented, arguing that because Cordray's recess appointment was invalid, "no one could claim the Executive's unique Article III standing. Because the plaintiff here lacked executive power and therefore lacked Article III standing, the district court was bound to dismiss the action."
Tuesday, April 5, 2016
The D.C. Circuit ruled today in U.S. v. Fokker Services B.V. that a federal district court cannot deny an exclusion of time under the Speedy Trial Act for a deferred prosecution agreement (DPA) because the court disagrees with the government's charging decisions. The ruling, a victory for both parties, reverses the district court's decision on separation-of-powers grounds and remands the case.
The case arose when the parties asked the court for an exclusion of time under the Speedy Trial Act in order to allow the defendant to meet the government's conditions under the DPA. (The DPA provided that the government would defer prosecution so long as Fokker met certain conditions over an 18-month period. But if Fokker failed to meet the conditions after 18 months, the Speedy Trial Act would have prevented the government to pursue prosecution. So the parties moved the court for an exclusion of time under the Act.) The court denied the motion, saying that it disagreed with the government's decision to charge only the corporation, and not its individual officers, with violations. Both parties appealed.
The D.C. Circuit reversed. The court said that "[t]he Constitution allocates primacy in criminal charging decisions to the Executive Branch," and that "the Judiciary generally lacks authority to second-guess those Executive determinations, much less to impose its own charging preference." So when the court denied an exclusion of time because of its disagreement with the government's charging decision, it exceeded its own authority and intruded into the prerogative of the Executive.
The court said that "we construe [the Speedy Trial Act] in a manner that preserves the Executive's long-settled primacy over charging decisions and that denies courts substantial power to impose their own charging preferences."
The case now goes back to the district court for an order excluding time under the Speedy Trial Act and implementation of the DPA.
Thursday, March 31, 2016
South Africa's Constitutional Court on Corruption, Presidential and Legislative Responsibilities, and the Constitution
The controversy at the center of today's unanimous judgment by the South Africa Constitutional Court in Economic Freedom Fighters v Speaker of the National Assembly and Others; Democratic Alliance v Speaker of the National Assembly and Others arises from "improvements" to President Jacob Zuma's private residence in Nkandla done at public expense.
Although the cost of "security features" can be born by the state, other improvements - - - such as the visitors' centre, amphitheater, cattle kraal, chicken run, and swimming pool involved in this case - - - should not be state-funded and should be personally paid by the President.
The constitutional questions in the case are not only about apportioning costs, however, but are about apportioning power in the South Africa government.
The South Africa Constitution establishes the "Public Protector" (sections 181, 182) as an independent entity with the power
a. to investigate any conduct in state affairs, or in the public administration in any sphere of government, that is alleged or suspected to be improper or to result in any impropriety or prejudice;
b. to report on that conduct; and
c. to take appropriate remedial action.
In this case, the Public Protector, investigated the allegations of "irregular expenditure" and issues a report in 2014 directing the President to make reimbursements and reprimand the Ministers involved in the expenditures; this report was also submitted to the National Assembly.
The President basically refused to comply and the National Assembly "resolved to absolve the President of all liability." Once the matter reached the Constitutional Court's exclusive jurisdiction, President Zuma essentially agreed that he would pay the costs of improvement. Thus, the decision in the case is not surprising.
Nevertheless, the Constitutional Court's decision is an important one. It strongly sides with the Public Protector and states that her remedial action taken against the President is "binding." Additionally, it finds that both the President and the National Assembly acted unconstitutionally:
The failure by the President to comply with the remedial action taken against him, by the Public Protector in her report of 19 March 2014, is inconsistent with section 83(b) of the Constitution read with sections 181(3) and 182(1)(c) of the Constitution and is invalid.
The resolution passed by the National Assembly absolving the President from compliance with the remedial action taken by the Public Protector in terms of section 182(1)(c) of the Constitution is inconsistent with sections 42(3), 55(2)(a) and (b) and 181(3) of the Constitution, is invalid and is set aside.
Jennifer Elgot has a good basic overview of the 52 page decision and background controversy in her piece in The Guardian.
Pierre deVos, Constitutional Law Professor at University of Cape Town has a terrific discussion on his blog Constitutionally Speaking.
Monday, February 29, 2016
Federal Magistrate Finds All Writs Act Not Sufficient to Compel Apple to "Unlock" IPhone in Brooklyn Case
Bearing remarkable similarity to the ongoing controversy in California often styled as FBI v. Apple, a federal magistrate in the Eastern District of New York today sided with Apple, finding that the All Writs Act does not grant judicial authority to compel Apple to assist the government in "unlocking" an iPhone by bypassing the passcode security on a iPhone.
In his 50 page Memorandum and Order in In Re Order Requiring Apple, Inc. to Assist in the Execution of a Search Warrant Issued By This Court, Magistrate James Orenstein concluded that while the All Writs Act as applied here would be in "aid of jurisdiction" and "necessary and proper," it would not be "agreeable to the usages and principles of law," because Congress has not given such specific authority to the government. Similar to Apple's argument in the California case, Magistrate Orenstein notes the constitutional argument:
The government's interpretation of the breadth of authority the AWA confers on courts of limited jurisdiction thus raises serious doubts about how such a statute could withstand constitutional scrutiny under the separation-of-powers doctrine.
There is no mention of the First, Fifth, or Fourth Amendments.
Magistrate Orenstein engaged in an application of the United States v. New York Telephone Co. (1977) factors, finding that even if the court had power, it should not exercise it. The magistrate found that New York Telephone was easily distinguished. On the unreasonable burden factor, the magistrate stated:
The government essentially argues that having reaped the benefits of being an American company, it cannot claim to be burdened by being seen to assist the government. See Govt. II at 19 (noting the "significant legal, infrastructural, and political benefits" Apple derives from being an American company, as well as its "recourse to the American courts" and to the protection of "American law enforcement ... when it believes that it has been the victim of a crime"); id at 19-20 ("This Court should not entertain an argument that fulfilling basic civic responsibilities of any American citizen or company ... would 'tarnish' that person's or company's reputation."). Such argument reflects poorly on a government that exists in part to safeguard the freedom of its citizens – acting as individuals or through the organizations they create – to make autonomous choices about how best to balance societal and private interests in going about their lives and their businesses. The same argument could be used to condemn with equal force any citizen's chosen form of dissent.
At the end of his opinion, Judge Orenstein reflected on the divisive issues at stake and concluded that these were ones for Congress.
But Congress will certainly not be acting in time to resolve the pending controversies. Unlike the California case, this warrant and iphone resulted from a drug prosecution and had proceeded in a somewhat haphazard manner. Pursuant to the Magistrate's request about other pending cases,
Apple identified nine requests filed in federal courts across the country from October 8, 2015 (the date of the instant Application) through February 9, 2016. In each, Apple has been ordered under the authority of the AWA (or has been told that an order has been requested or entered) to help the government bypass the passcode security of a total of twelve devices; in each such case in which Apple has actually received a court order, Apple has objected. None of those cases has yet been finally resolved, and Apple reports that it has not to date provided the requested assistance in any of them.
So it seems that the California "terrorism" case is not unique. Judge Orenstein's opinion is well-reasoned and well-structured and could easily be echoed by the federal courts in California - - - and elsewhere.
Monday, February 22, 2016
Judge Ellen Segal Huvelle (D.D.C.) dismissed a complaint by the estates of two persons killed in a drone strike in Yemen. Judge Huvelle ruled that the complaint, which sought a declaration that the strike violated the Torture Victim Protection Act and customary international law, raised a non-justiciable political question.
The case, Bin Ali Jaber v. U.S., grew out of a drone strike that killed five individuals in Yemen. The estates of two of the victims sued, seeking a declaration that the U.S. violated the TVPA and international law. The government moved to dismiss the case as a non-justiciable political question.
Judge Huvelle granted the motion. She wrote that the court lacked judicially manageable standards for judging the legality of a drone strike, and that the decision to order the strike was a "policy determination of a kind clearly for nonjudicial discretion."
Judge Huvelle distinguished Comm. of U.S. Citizens Living in Nicaragua v. Reagan and Al-Aulaqi v. Panetta--cases in which the courts held that tort claims arising from foreign policy decisions were justiciable--because the plaintiffs in those cases raised constitutional claims. "Because the judiciary is the ultimate interpreter of the Constitution, constitutional claims can require a court to decide what would otherwise be a political question, but no such claims have been made here."
Judge Huvelle recognized that her ruling was in tension with Judge Weinstein's decision in In re Agent Orange Product Liability Litigation--with claims "not materially distinguishable from plaintiffs'." But she said, "[O]f course, this Court is bound by the decisions of the D.C. circuit, not the Eastern District of New York."
Thursday, February 18, 2016
Check this out: Alden Abbott outlines the case against the Consumer Financial Protection Bureau over at Heritage.
The CFPB, an independent regulatory agency created under Dodd-Frank that's charged with doing just what its name says, has been subject to a non-stop barrage of attacks from the right ever since its creation--for policy reasons, and for violations of separation of powers. Abbott summarizes the latter, drawing on Free Enterprise Fund:
The Free Enterprise Fund case strongly indicates that the CFPB's degree of independence goes beyond constitutionally acceptable norms.
First, the CFPB is more than one level removed from presidential oversight. Its director is independent from management supervision by the institution within which the bureau sits--the Federal Reserve System--and the Federal Reserve System is independent from presidential control.
Second, the bureau's independence from congressional appropriations or budgetary review prevents Congress from exercising its key means of oversight: the power of the purse.
Taken as a whole, these features grant the bureau greater autonomy than is allowed to any regulatory institution whose structure has been reviewed by the Court.
But neither feature of the CFPB is problematic. As to supervisory independence, Abbott's claim is simply wrong, on his own terms. He earlier says, correctly, that the head of the CFPB serves for five years, and can be removed by the President for cause. This isn't the kind of double-insulation that the Court found offensive in Free Enterprise Fund; instead, it's a direct line of accountability to the President that the Court has long approved. It doesn't matter that the CFPB sits within the Federal Reserve System, because the head of the CFPB answers to the President.
As to financial independence, it's hardly novel for an agency to self-fund outside the regular appropriations process, through fees or fines. Indeed, the Congressional Research Service says (correctly) that CFPB's funding--which comes from the Fed's combined earnings (and not regular appropriations)--"give the Bureau less flexibility than the OCC, FDIC, and other banking regulators that are able to increase assessments on the institutions within their jurisdiction to raise revenue, as needed to carry out their responsibilities." And Congress still has oversight: the CFPB reports regularly and is subject to audits by the Comptroller General, and the director must testify at least twice a year before Congress.
We'll continue to see challenges to the CFPB in the courts. But unless the Court changes its approach to independent agencies, or unless Congress changes things, don't expect the CFPB to go away.
Wednesday, February 10, 2016
Check out the ACSBlog, where Prof. Shoba Sivaprasad Wadhia (Penn State) writes about her new book, Beyond Deportation: The Role of Prosecutorial Direscretion in Immigration Cases. With the Court's review of DAPA looming, Prof. Wadhia writes, "As law students and scholars grapple with the wave of headlines or latest litigation question faced by the courts on the question of prosecutorial discretion, my hope is that they gain a better understanding of the historical role of and legal foundation for prosecutorial discretion in immigration cases and the extent to which compassion has served as the foundation for how such decisions are made."
Wednesday, January 20, 2016
Judge Amy Berman Jackson (D.D.C.) yesterday ordered the Attorney General to turn over certain post-February 4, 2011, documents generated in the executive branch over how to respond to congressional inquiries into the Fast and Furious program.
But don't chalk this up as a win for Congress. Judge Jackson ruled that the documents had to be turned over because the government had already revealed much of the content, in the publicly-available DOJ Inspector General report on the program, and not because they weren't otherwise protected by executive privilege.
If anything, this ruling is a win for the administration. That's because Judge Jackson ruled that documents related to how the government would respond to congressional and press inquiries were covered by deliberative process privilege--even if they failed the balance (but only because the government had already released their content).
In the end, though, maybe "split decision" best describes the ruling.
Judge Jackson's ruling is just the latest in the long-running dispute between the House Committee on Oversight and the administration. Recall that the Committee sought administration documents related to the Fast and Furious program, including post-February 4, 2011, documents discussing how the administration should respond to congressional requests for documents. (February 4, 2011, is significant, because that's the date when DOJ denied that it used the gun-walking tactic. DOJ later acknowledged the program. The Committee then expanded its investigation to include the circumstances of DOJ's initial denial, and why it took so long to tell Congress that its initial denial was wrong.)
Judge Jackson ruled that post-February 4, 2011, documents related to how the government would respond to congressional inquiries were protected under the deliberative process prong of executive privilege. (Under D.C. Circuit law, deliberative process covers communications between executive branch officials other than the President that are "crucial to fulfillment of the unique role and responsibilities of the executive branch." (Traditional executive privilege covers communications only between executive branch officials and the President.)) That's because they were both predecisional and deliberative, and fell within the kinds of communications that were covered under other circuit rulings. She also said that DOJ's list of those documents sufficiently showed that they were covered by the deliberative process privilege.
But coverage doesn't end the inquiry. The deliberative process privilege (like its parent executive privilege) is a qualified privilege, which means that the courts balance the government's interest against any counter-veiling interest in obtaining the privileged material. Here, Judge Jackson ruled that the Committee had an undisputed counter-veiling interest in oversight and investigation, and that DOJ had already released the content through the publicly-available OIG report:
What harm to the interests advanced by the privilege would flow from the transfer of the specific records sought here to the Committee when the Department has already elected to release a detailed Inspector General report that quotes liberally from the same records? The Department has already laid bare the records of its internal deliberations--and even published portions of interviews revealing its officials' thoughts and impressions about those records. While the defense has succeeded in making its case for the general legal principle that deliberative materials--including the sorts of materials at issue here--deserve protection even in the face of a Congressional subpoena, it can point to no particular harm that could flow from compliance with this subpoena, for these records, that it did not already bring about itself.
Judge Jackson also ordered DOJ to turn over eight documents over which DOJ asserted no privilege. She declined to order DOJ to turn over yet other post-February 4, 2011, documents that the parties are still wrangling over. (They can't agree on the scope of the Committee's request, and the court declined to intervene.)
Tuesday, January 19, 2016
The Supreme Court today agreed to hear Texas v. United States, the case testing President Obama's deferred action program for parents of Americans and lawful permanent residents, or DAPA.
We posted on the Fifth Circuit's ruling here, including a summary of the arguments and analysis.
The case arose when Texas and twenty-five other states sued the federal government, arguing that DHS violated federal law (the Immigration and Naturalization Act) and the Take Care Clause of the Constitution, and failed to use APA notice-and-comment rulemaking, in adopting DAPA. A district court issued a nationwide injunction, and the Fifth Circuit affirmed, concluding that the states had a substantial likelihood of success on the merits of their INA and APA claims (but not ruling on the Take Care Clause claim). The courts also ruled that the plaintiffs had standing.
The government sought review at the Supreme Court, and today the Court agreed to hear the case. The issues include the INA and APA claims, and standing, and the Take Care Clause claim. This last one is a bit of a surprise, given that the Fifth Circuit did not rule on it. (The Court in its order today asked the parties to argue the issue.)
The Court could resolve the case on standing alone, by concluding that the states lack standing. After all, Texas's standing theory is hardly rock solid: it's based on Texas's costs in issuing drivers licenses to DAPA beneficiaries. But that's a voluntary cost--Texas doesn't have to issue the licenses in the first place. Moreover, plaintiffs don't usually have standing to challenge an executive lack of enforcement. A ruling against the plaintiffs on standing seems highly unlikely, however, especially now that the Court has asked for briefing on the Take Care question. It seems that the Court--or at least four Justices--want to get to the merits.
The case could affect the fates of about four million people and their children. It'll also be a significant addition to the Court's jurisprudence on standing and the Take Care Clause, and executive authority under the INA and APA notice-and-comment rulemaking.
Finally, it could have significant play in the presidential election: the Court will likely hear arguments in April and issue an opinion in June.
Thursday, January 7, 2016
Here's one way to oppose President Obama's recent executive actions to reduce gun violence (or any other federal action you don't like): Exempt your state from them.
That's just what Arizona HB 2024 does. It prohibits the use of any state funds or resources "to enforce, administer or cooperate with an executive order issued by the President of the United States that is not in pursuance of the Constitution of the United States and that has not been affirmed by a vote of the Congress of the United States and signed into law as prescribed by the Constitution of the United States." HB 2024 also prohibits the use of state funds and resources to enforce any federal administrative action not "affirmed by a vote of the Congress," and any Supreme Court ruling not "affirmed by a vote of Congress."
But HB 2024 (obviously) runs head-on into the Supremacy Clause. So it's only a political statement. But even so, it's an awfully weak one: It fundamentally misunderstands the separation of powers, in particular the President's role in enforcing the law and the Supreme Court's role in interpreting and applying the law.
Wednesday, January 6, 2016
Amy Goodman hosted a debate between John Velleco, director of federal affairs for Gun Owners of America, and Caroline Fredrickson, president of the American Constitution Society, on the separation-of-powers issues in President Obama's executive actions to control gun violence:
Tuesday, January 5, 2016
President Obama's executive actions to control gun violence are drawing predictable Second Amendment howls. But there's another constitutional claim against President Obama's actions--that President Obama overreached and violated the separation of powers.
The emerging separation-of-powers claim focuses on the President's attempt to clarify statutory language, in particular, which gun sellers are "engaged in the business of dealing firearms" under federal law. Sellers so engaged have to get a federal license and conduct background checks on purchasers.
Firearms dealers certainly qualify; individuals selling guns don't. But that leaves a big grey area and allows many sellers to avoid federal licensing and background checks, even if they sell a lot of guns. President Obama's actions are designed to give some guidance to federal regulators and law enforcement on who is "engaged in the business of dealing firearms," so that more sellers who sell many guns (but have previously flown under the regulatory radar) have to get a license and conduct background checks.
So: the President's action is either validly enforcing the law, or it's invalidly rewriting the law, in violation of the separation of powers.
Phillip Bump at WaPo has a nice, short summary of the positions.
Bob Adelmann, writing in the New American, says that the measure invalidly rewrites the law, and surveys the emerging arguments that support that position.
On the other side, law professors who urged President Obama to take action last month say that this measure is valid enforcement of federal law.
The law professors surely have the better argument. But the courts will soon have their own say.
Friday, December 18, 2015
Judge Royce Lamberth (D.D.C.) ruled yesterday that the district court lacked jurisdiction over a Guantanamo detainee's habeas claim seeking his periodic review, as ordered by President Obama.
The ruling in Salahi v. Obama leaves Guantanamo detainees without a way to enforce the Periodic Review Board process set by executive order by President Obama.
Recall that President created an interagency process in 2011 to periodically review whether continued detention of certain Guantanamo detainees was "necessary to protect against significant threat to the security of the United States." Under EO 13567, every detainee was to get a full hearing every three years from a PRB, plus interim review under certain circumstances.
Salahi has been detained at Guantanamo since 2002, without charges, and has yet to have a PRB hearing (or even have one scheduled). He filed a habeas claim in the D.C. District seeking, among other things, a scheduled PRB hearing.
The court rejected his claim. The court said that "probabilistic" claims--that is, claims that only might lead to release--don't fall within habeas, and that in any event the EO didn't create any substantive rights that a Guantanamo detainee might actually enforce in court.
The upshot is that while the President may order periodic review, that doesn't mean that detainees can actually get it.
Wednesday, December 16, 2015
The full Second Circuit last week denied en banc review of its June ruling in Turkmen v. Ashcroft. That ruling allowed a civil rights case against former AG Ashcroft and former FBI Director Mueller, among others, by alien detainees held at the Metropolitan Detention Center in New York to go forward. (The June ruling was not a ruling on the merits, however.) The full Second Circuit denied review by a 6-6 vote. (H/t: Joe Dicola.)
The June ruling and the full court's denial of review are victories for the plaintiffs and, more generally, for access to justice. They deal a major blow to the government in defending detainee-abuse suits that arise in domestic, non-military detention facilities. But while the rulings are significant (to say the least), they may be short-lived. That's because the government is sure to appeal to the Supreme Court, and because the Court will almost surely take it.
Wednesday, November 18, 2015
The Seventh Circuit ruled today that students who authorized the corporations who run the SAT and ACT standardized tests to provide their personal information to educational organizations lacked standing to challenge the corporations' sale of that information. The ruling means that the putative class action against the SAT and ACT is dismissed.
Along the way, the court also ruled that the Iqbal/Twombly heightened pleading standard ("plausibility") applies to facial challenges to standing under Rule 12(b)(6). This may raise the bar for plaintiffs in pleading and arguing standing. This portion of the ruling aligns with the approach in several other circuits; but it's in tension with the Ninth Circuit, which says that "Twombly and Iqbal are ill-suited to application in the constitutional standing context."
The case arose when ACT, Inc., and The College Board (which administers the SAT) sold personal information of students who signed up to take the tests. The students agreed that the corporations could share their personal information with educational groups (schools, scholarship funds, and the like), but they didn't know that the corporations were going to sell their personal information. (The price was small--$.33 per student per educational group--but would add up quickly for the defendants.) The plaintiffs argued that they were harmed by the sale because (1) they should have received some of the proceeds, (2) the sale diminished the value of their personal information, and (3) they paid a fee to take the ACT or SAT, which presumably would have been lower if they had not consented to the sale.
The Seventh Circuit flatly rejected these claims. The court ruled that under the Iqbal/Twombly standard, the plaintiffs' allegations didn't plausibly suggest that they'd been harmed. The court said that just because the defendants benefited doesn't mean that the plaintiffs were harmed for standing purposes: "Plaintiffs have claimed injury based solely on a gain to Defendants and without alleging a loss to themselves." (Although the court applied the Iqbal/Twombly standard, it looks like the plaintiffs would have failed even without it.)
The court rejected the plaintiffs' claim that their complaint gave rise to a reasonable inference that if they knew of the sale they would have conditioned their permission on receipt of a portion of the proceeds. The court said that the plaintiffs didn't provide factual support for the inference, so it didn't even need to get to whether the claim gives rise to a plausible claim of subject matter jurisdiction under Iqbal and Twombly.
In other words, it's not clear that the heightened Iqbal/Twombly standard mattered to the outcome at all. Still, the case says that the standard now applies to standing in the Seventh Circuit.
Monday, November 9, 2015
A sharply divided panel of the Fifth Circuit ruled today that states had a substantial likelihood of success on the merits in their case against the President's deferred action program for parents of Americans and lawful permanent residents, or DAPA. The ruling affirms a nationwide injunction issued by the lower court and means that the government is barred from enforcing DAPA across the country--unless and until the government files for and wins a stay and appeals.
The ruling is a win for plaintiff-states that don't like DAPA and a loss, though perhaps not unexpected (at the conservative Fifth Circuit), for the government.
The dispute between the majority and the dissent on the merits comes down to whether DAPA is really an exercise of discretionary non-enforcement (majority says no; dissent says yes) and whether DAPA violates federal law (majority says yes; dissent says no). The majority and dissent also dispute the states' ability to bring the suit in the first place, or their standing.
This ruling is surely not the last say on the question; this case is undoubtedly going to the Supreme Court.
The court issued four key holdings. First, the court said that the states had standing, and that the case is justiciable. Next, the court said that DAPA likely violated notice-and-comment rules of the APA. Third, the court said that DAPA likely violated federal law (the Immigration and Naturalization Act) and therefore violated substantive APA requirements. Finally, the court said that the district court was within its discretion to issue a nationwide injunction.
The court did not address the plaintiffs' Take Care Clause challenge.
As to standing, the court said as an initial matter that the states were due "special solicitude" for standing under Massachusetts v. EPA. The court went on to say that the states had standing because DAPA would require them to issue drivers licenses to DAPA beneficiaries, because DAPA would "impos[e] substantial pressure on them to change their laws" for drivers licenses, and because the states "now rely on the federal government to protect their interests" in immigration matters.
On the procedural APA claim, the court ruled that the states "established a substantial likelihood that DAPA would not genuinely leave the agency and its employees free to exercise discretion," despite conflicting evidence on the point, apparently ignored by the lower court. The court also ruled that DAPA is a substantive rule (and not procedural), because "receipt of DAPA benefits implies a 'stamp of approval' from the government and 'encodes a substantive value judgment,' such that the program cannot be considered procedural." As a result, according to the court, DAPA was subject to APA notice-and-comment rulemaking, and, because the government didn't use notice and comment, the states had a substantial likelihood of success on their procedural APA claim.
On the substantive APA claim, the court said that DAPA is "manifestly contrary to the [Immigration and Naturalization Act]," in particular, the INA's "specific and intricate provisions" that "directly addressed the precise question at issue." The court rejected the government's claim that DAPA is consistent with historical practice.
Importantly, the court did not "address whether single, ad hoc grants of deferred action made on a genuinely case-by-case basis are consistent with the INA . . . ." It only concluded "that the INA does not grant the Secretary discretion to grant deferred action and lawful presence on a class-wide basis to 4.3 million otherwise removable aliens."
Finally, the court said that the district court could issue a nationwide injunction, because, in short, immigration is a nationwide issue that calls for uniform regulation.
Judge King wrote a lengthy and sharp dissent, challenging the majority at each turn.
Monday, November 2, 2015
The Supreme Court heard oral arguments today in Spokeo v. Robins, the case testing whether Congress can confer standing on a plaintiff by statute, even when the plaintiff lacks a sufficient and independent harm for Article III standing purposes.
The case is important for what it will say about access to the courts, and, in particular, class actions. The justices at oral arguments seemed sharply divided along conventional ideological lines, with progressives favoring access and conservatives, including Justice Kennedy, going the other way. If so, the case will take its place among the line of cases coming out of the Roberts Court that limit access to the judiciary and favor (corporate and government) defendants.
(Check out the outstanding Vanderbilt roundtable on the case, with six different takes, available here.)
The case arose when Spokeo, the owner of a web-site that provides searchable reports containing personal information about individuals, reported false information about Thomas Robins. For example, Spokeo reported that Robins had a graduate degree (he doesn't), that he was employed in a professional or technical field, with "very strong" "economic health" and wealth in the "Top 10% (he's unemployed), and that he's in his 50s, married, with children (he's not in his 50s, not married, and no children).
Robins filed suit, claiming that Spokeo's representations violated the federal Fair Credit Reporting Act. He sought damages under the Act for a willful violation. Robins claimed that Spokeo's false report made it harder for him to find a job.
Justices Kagan and Scalia marked out the competing positions early in Spokeo's argument, and at times bypassed Spokeo's attorney (Andrew Pincus) entirely and simply argued with each other. At one point, Justice Scalia even intervened to answer a question for Pincus, and then told Pincus that it was the right answer. In short, Justice Kagan argued that Congress identified a concrete harm in the Act and provided a remedy for it; Justice Scalia argued that any harm was merely "procedural," because any harm was only Spokeo's violation of the Act's procedures (with no additional concrete harm). Here's a little of the exchange:
Justice Kagan: But did that procedural requirement--this is--this is exactly what Lujan says, "It's a procedural requirement the disregard of which could impair a concrete interest of the plaintiff."
And we distinguished that from procedural requirements in vacuo.
. . .
Justice Scalia: Excuse me. That--that would lead to the conclusion that anybody can sue . . . not just somebody who--whose information was wrong.
Pincus seemed to make an important concession in response to a question by Justice Kennedy, whether "Congress could have drafted a statute that would allow [Robins] to bring suit?" Pincus said yes, and proceeded to describe it--basically a statute that required a plaintiff to show a concrete harm that would be sufficient for Article III. If Justice Kennedy is in play, Pincus's softer position may assuage any concerns over an extreme position that Congress can never confer standing. The softer position also saves other statutes that have similar Congress-confered-standing provisions. (Justice Kennedy picked up this theme with Robins's attorney (William Consovoy) and noted that Consovoy's position of a Congress-created-harm (alone) seemed circular--but Consovoy didn't seem to give a satisfying answer.) At one point Pincus made another important concession: some plaintiffs might have standing under the FCRA, so long as they show an independent and sufficient harm.
On the other side, Chief Justice Roberts pressed Consovoy early on the limits of his argument--a point we're likely to see in the opinion:
Chief Justice Roberts: What about a law that says you get a--a--$10,000 statutory damages if a company publishes inaccurate information about you? . . . The company publishes your phone number, but it's wrong. That is inaccurate information about you, but you have no injury whatever. Can that person bring an action for that statutory damage?
Consovoy didn't have a response, or, rather, his response only opened new cans of worms. (Justice Breyer intervened and offered an interpretation of the statutory language that gives a cause of action to "any consumer who has obtained--who suffers from false information.") Chief Justice Roberts and Consovoy had a similar exchange later in the argument, too. Consovoy maintained that the FCRA was different than the Chief's hypotheticals, because the FCRA authorizes damages only for someone who was injured. He didn't seem to persuade the Chief on this point, though, despite Justice Breyer's help.
Justice Alito pointed to the record and argued that it didn't support a concrete harm. Indeed, he pointed out that nobody in the record (other than Robins himself) searched for him on Spokeo--a "quintessential speculative harm"--probably another point we'll see in the final opinion.
Chief Justice Roberts asked a different question--and a far more loaded one (politically, and constitutionally)--to the government, amicus for Robins:
Chief Justice Roberts: [L]et's kind of say your--your--Congress thinks that the president is not doing enough to stop illegal immigration, so it passes a law that says, anyone in a border State--so it's particularized--who is unemployed may bring an action against an illegal immigrant who has a job. And they get damages, maybe they get an injunction.
. . .
And I would have thought that the--the president would be concerned about Congress being able to create its own enforcement mechanism. I thought that you would be concerned that that would interfere with the executive prerogative.
The government tried to distinguish the hypo, but, again, counsel probably didn't persuade the conservatives.
November 2, 2015 in Cases and Case Materials, Congressional Authority, Courts and Judging, Executive Authority, Jurisdiction of Federal Courts, News, Opinion Analysis, Separation of Powers, Standing | Permalink | Comments (0)
Monday, October 26, 2015
The D.C. Circuit on Friday ruled in a fractured opinion that a U.S. citizen secretly detained, transferred involuntarily between countries, and threatened with torture by FBI agents did not have a claim for violation of the Fourth Amendment in federal courts. That's because "special factors" counseled against such a remedy under Bivens v. Six Unknown Agents.
The ruling means that Plaintiff Meshal's case is dismissed, and leaves him without a remedy. It also makes it yet even more difficult for plaintiffs like Meshal to get their cases heard in federal court.
The FBI originally detained and held Meshal because of his alleged connections to al Qaeda; it later released him without charges.
The court wrote that Meshal's claim involved a "new context" for Bivens--a strike against him right out of the gate:
Not only does Meshal's claim involve new circumstances--a criminal terrorism investigation conducted abroad--it also involves different legal components--the extraterritorial application of constitutional protections. Such a different context requires us to think anew. To our knowledge, no court has previously extended Bivens to cases involving either the extraterritorial application of constitutional protections or in the national security domain, let alone a case implicating both--another signal that this context is a novel one.
Because the case arose in a "new context," the court looked to special factors counseling against a Bivens remedy. And it found two, which, taken together, left Meshal without a Bivens cause of action: (1) the case involves "the military, national security, or intelligence," and (2) the conduct occurred outside the borders of the United States. The court also said that a host of "practical factors" counseled against a Bivens remedy, including requiring the court to second guest executive officials operating in foreign justice systems, unknown diplomatic consequences of the suit, and forcing the courts to answer hard questions about the extraterritorial application of the Constitution outside of peacetime.
Judge Kavanaugh wrote separately to especially emphasize the military, counter-terrorism, and foreign context of the suit--the "new context" that triggered the special factors analysis and weighted so heavily against a Bivens claim.
Judge Pillard wrote a lengthy and scathing dissent, dissecting the court's analysis point-by-point. Judge Pillard was particularly concerned about the blind judicial deference to the government's mere invocation, without reasonable explanation, of foreign policy and national security as special factors counseling against a Bivens remedy. She summed up the strange and deeply disturbing result:
Had Meshal suffered these injuries in the United States, there is no dispute that he could have sought redress under Bivens. If Meshal's tormentors had been foreign officials, he could have sought a remedy under the Torture Victim Protection Act. Yet the majority holds that because of unspecified national security and foreign policy concerns, a United States citizen who was arbitrarily detained, tortured, and threatened with disappearance by United States law enforcement agents in Africa must be denied any remedy whatsoever.