Saturday, August 19, 2017

Fifth Circuit Says Group Has Standing, Strikes Texas Voter-Interpretater Restriction

The Fifth Circuit ruled this week that an organization had standing to challenge Texas's restriction on a voter's use of an interpreter under the Voting Rights Act. But at the same time, the court said that the district court's injunction was too broad. The ruling, a victory for the plaintiffs, nevertheless sends the case back to the district court for a more narrowly tailored injunction.

The case arose when the Organization for Chinese Americans stepped-in to a lawsuit challenging Texas's law that limits a non-English-speaking voter's use of an interpreter at the polls. Texas law says that such a voter can use an interpreter "outside the ballot box," but that the interpreter must "be a registered voter of the county in which the voter needing the interpreter resides." OCA argued that the provision violated Section 208 of the VRA, which says that "[a]ny voter who requires assistance to vote by reason of blindness, disability, or inability to read or write may be given assistance by a person of the voter's choice, other than the voter's employer or agent of that employer or officer or agent of the voter's union."

The court ruled that OCA had organizational standing, because, as an educational organization, it had to ramp up its educational efforts in response to Texas's law. In particular,

OCA calibrated its outreach efforts to spend extra time and money educating its members about these Texas provisions and how to avoid their negative effects. Specifically, OCA employees and volunteers must carefully explain to those it contacts, in the language they understand, that when they bring an interpreter to a Texas polling location, the interpreter must identify his or herself as an "assistor" rather than as an "interpreter" to avoid being turned away under Texas law . . . .

The court went on to reject Texas's claim of sovereign immunity, because OCA sought only declaratory and injunctive relief (and not monetary damages).

On the merits, the court concluded that the Texas provision violated Section 208 of the VRA, but that the district court went too far in enjoining "any provision of its Election Code to the extent it is inconsistent with the VRA." The court remanded the case for a more narrowly tailored injunction.

August 19, 2017 in Cases and Case Materials, Elections and Voting, Jurisdiction of Federal Courts, News, Opinion Analysis, Standing | Permalink | Comments (0)

Sixth Circuit Says No Standing to Challenge Foreign Account Tax Compliance Act

The Sixth Circuit ruled yesterday that a group of plaintiffs, including taxpayers with overseas accounts and Senator Rand Paul, lacked standing to challenge the reporting and penalty provisions under the Foreign Account Tax Compliance Act. The ruling ends this challenge.

The FATCA imposes certain reporting requirements, and provides for penalties for noncompliance, on individual taxpayers and foreign financial institutions ("FFIs") with overseas accounts. It also requires FFIs to withhold 30% of every payment made by the FFI to a noncompliant account holder.

In order to implement the FATCA and facilitate the FFIs' disclosure of financial-account information to the IRS, the IRS has entered into a number of intergovernmental agreements ("IGAs").

Separately, the Bank Secrecy Act imposes a foreign account reporting requirement on U.S. citizens living abroad who have aggregate foreign-account balances over $10,000. The Act also imposes a penalty of 50% of the value of the reportable accounts, or $100,000, whichever is greater.

Several individuals with foreign accounts and U.S. Senator Rand Paul sued, arguing that the provisions violate equal protection (by treating citizens living overseas differently than citizens living in the U.S.); that the penalties constitute excessive fines; that the reporting requirements violate the plaintiffs' right to privacy; and that the IRS lacked authority to enter into the IGAs without Senate advice and consent.

The Sixth Circuit didn't touch the merits, however, and instead ruled that the plaintiffs lacked standing. As to most of the plaintiffs, the court said that they weren't actually harmed, because "no Plaintiff has alleged any actual enforcement of FATCA such as a demand for compliance with the individual-reporting requirement, the imposition of a penalty for noncompliance, or an FFI's deduction of the Passthru Penalty from a payment to or from a foreign account."

Moreover, the court said that no plaintiff could satisfy the standard for a preenforcement challenge, because "no Plaintiff claims to hold enough foreign assets to be subject to the individual-reporting, and, as a result, no Plaintiff can claim that there is a 'credible threat' of" enforcement against them.

The court rejected some plaintiffs' claims of harms that arose apart from FATCA's reporting requirements and penalties, because those harms weren't fairly traceable to the FATCA. Finally, the court said that Senator Paul lacked standing under the no-legislator-standing rule. "Rather, Senator Paul has a remedy in the legislature, which is to seek repeal or amendment of FATCA itself, under the aegis of which Treasury is executing the IGAs.

August 19, 2017 in Cases and Case Materials, Jurisdiction of Federal Courts, News, Opinion Analysis, Standing | Permalink | Comments (0)

Tuesday, August 15, 2017

Three Judge Court Finds Fault with Texas Redistricting Plan

 In its extensive and detailed opinion in Perez v. Abbott, a three judge court found problems including intentional racial discrimination in some aspects of Plan C235, the redistricting plan enacted by the Texas Legislature in 2013.

Authored by United States District Judge Xavier Rodriguez, joined by Chief Judge for the Western District of Texas District Judge Garcia, and Fifth Circuit Judge Jerry Smith, the panel opinion is another episode in the ongoing litigation regarding redistricting in Texas.  The opinion itself is an interlocutory order, with the remedial phase to follow.  Additionally, as in most redistricting litigation, there is a mix of determinations under the Voting Rights Act and the Equal Protection Clause.

Perhaps one of the more interesting issues in the case involves the court's findings regarding intentional discrimination. The court considered the Shaw v. Reno racial gerrymandering claims elaborating on the strict scrutiny standard if racial classifications could be proven.The court rejected the state's position that the discriminatory intent inquiry was limited to the drawing of district lines in 2013, but relying on Fifth Circuit precedent found that the challengers could demonstrate "either through direct or circumstantial evidence that the government body adopted the electoral scheme with a discriminatory purpose, that the body maintained the scheme with discriminatory purpose, or that the system furthered pre-existing intentional discrimination." The court stated:

The decision to adopt the interim plans was not a change of heart concerning the validity of any of Plaintiffs’ claims . . . . {in previous litigation} and was not an attempt to adopt plans that fully complied with the VRA and the Constitution—it was a litigation strategy designed to insulate the 2011 or 2013 plans from further challenge, regardless of their legal infirmities. The letter from then-Attorney General Abbott to Speaker Joe Straus makes the strategy clear: Abbott advised that the “best way to avoid further intervention from federal judges in the Texas redistricting plans” and “insulate the State’s redistricting plans from further legal challenge” was to adopt the interim maps. Thus, Defendants sought to avoid any liability for the 2011 plans by arguing that they were moot, and sought to ensure that any legal infirmities that remained in the 2013 plans were immune from any intentional discrimination and Shaw-type racial gerrymandering claims.

The court did reject some of the challengers other claims, although finding that MALC (a Latino legislative caucus of Texas members in the House of Representatives) had standing, it rejected the claim that there was intentional discrimination in a specific "Latino opportunity district."

The court's summary of its more than 100 page opinion is useful:

  • In Part II, the Court concludes that the racially discriminatory intent and effects that it previously found in the 2011 plans carry over into the 2013 plans where those district lines remain unchanged. The discriminatory taint was not removed by the Legislature’s enactment of the Court’s interim plans, because the Legislature engaged in no deliberative process to remove any such taint, and in fact intended any such taint to be maintained but be safe from remedy. The Legislature in 2013 intentionally furthered and continued the existing discrimination in the plans.
  • In Part IIIA, the Court concludes that Plaintiffs’ § 2 results claims in the DFW {Dallas-Fort Worth} area fail for lack of proof of African-American and Hispanic cohesion.
  • In Part IIIB, the Court finds that the intentional discrimination found in DFW in Plan C185 is remedied in Plan C235, and that Plaintiffs failed to prove that any alleged cracking and packing that remains in DFW was intentionally dilutive.
  • In Part IV, the Court concludes that Plaintiffs’ § 2 results claims in the Houston area fail for lack of proof of African-American and Hispanic cohesion.
  • In Part V, the Court finds that CD23 is a Latino opportunity district and there is no evidence of intentional discrimination/dilution.
  • In Part VI, the Court concludes that the Plan C235 configurations of CD35 and Nueces County/CD27 violate § 2 and the Fourteenth Amendment. These statutory and constitutional violations must be remedied by either the Texas Legislature or this Court.

 The court directed the Texas Attorney General to provide a "written advisory within three business days stating whether the Legislature intends to take up redistricting in an effort to cure these violations and, if so, when the matter will be considered."

Map

August 15, 2017 in Courts and Judging, Elections and Voting, Equal Protection, Federalism, Fifteenth Amendment, Fourteenth Amendment, Opinion Analysis, Standing | Permalink | Comments (0)

On Remand, Ninth Circuit Says Spokeo Plaintiff Has Standing

The Ninth Circuit ruled today that Thomas Robins suffered a sufficiently concrete injury to establish Article III standing in his case against the consumer data website Spokeo, Inc. The case was on remand from the Supreme Court.

The case arose when Robins learned that Spokeo published false information about his age, marital status, wealth, educational level, and profession, and published a photo of a different person. Robins claimed that the false report affected his employment prospects. He sued under the Fair Credit Reporting Act, which authorizes consumers affected by a violation to sue, even if the consumer cannot show that the violation caused actual damages.

The Ninth Circuit previously ruled that Robins had standing, because he alleged that Spokeo violated his statutory rights under the FCRA. But the Supreme Court vacated that ruling, saying that even if Robins had statutory standing under the FCRA, he still had to show Article III standing--in particular, a concrete harm--and that the Ninth Circuit didn't engage with that question. The Court remanded the case for a determination.

The Ninth Circuit said today that Robins demonstrated a concrete harm and therefore satisfied Article III standing. The court drew on language in Spokeo that said that sometimes Congress enacts procedural rights to guard against a "risk of real harm, the violation of which may be sufficient in some circumstances to constitute injury in fact" under Article III. Congress may do this, the court explained, "[i]n some areas . . . where injuries are difficult to prove or measure." "Accordingly, while Robins may not show an injury-in-fact merely by pointing to a statutory cause of action, the Supreme Court also recognized that some statutory violations, alone, do establish concrete harm." According to the court, the test is when the congressionally conferred procedural right protects a plaintiff's concrete interests and where the procedural violation presents "a risk of real harm" to that concrete interest.

The Ninth Circuit ruled that Robins met that test. The court said that "Congress established the FCRA provisions at issue to protect consumers' concrete interests." Moreover, even though trivial (but technical) violations of the FCRA won't give rise to concrete harm under Article III (and therefore the plaintiff would need to allege more), in this case

it is clear to us that Robins's allegations relate facts that are substantially more likely to harm his concrete interests than the Supreme Court's example of an incorrect zip code. Robins specifically alleged that Spokeo falsely reported that he is married with children, that he is in his 50s, that he is employed in a professional or technical field, that he has a graduate degree, and that his wealth level is higher than it is. It does not take much imagination to understand how inaccurate reports on such a broad range of material facts about Robins's life could be deemed a real harm.

The court rejected Spokeo's argument that Robins's harm was too speculative, because Robins met the court's risk-of-real-harm standard.

The ruling means that Robins's case against Spokeo can proceed to the merits.

August 15, 2017 in Cases and Case Materials, Jurisdiction of Federal Courts, News, Opinion Analysis, Standing | Permalink | Comments (0)

Sunday, August 6, 2017

Ninth Circuit Hands Partial Victory, but Ultimate Defeat, to Wiretap Subject

The Ninth Circuit ruled last week that Maricopa County officials violated federal law when they sought and obtained a wiretap, but that that the subject couldn't recover damages, because the officials acted in good faith and consistent with Arizona law and long-standing practices.

The ruling adds to a complicated body of law on federal preemption under the Omnibus Crime Control and Safe Streets Act of 1968 of state law authorizing wiretaps. The Ninth Circuit aligned with the approach of the First Circuit, and asked whether state procedural protections were "in substantial compliance with the federal law."

The case arose when County Attorney Montgomery, pursuant to state law, authorized a deputy to apply for a wiretap. The deputy obtained an order, and officials intercepted eight conversations between Manuela Villa and her daughter in 2011 and 2012. Officials, pursuant to long-standing state practice, then did not immediately deliver the recordings to the state court that authorized the wiretap.

Villa sued under Title III, arguing that officials violated Title III of the federal Omnibus Crime Control and Safe Streets Act of 1968, and that Title III preempted Arizona law that authorized the wiretap. In particular, Villa argued that County Attorney Montgomery, acting pursuant to state law, improperly delegated the authority to apply for a wiretap order to his deputy, in violation of Title III, which requires the "principal prosecuting attorney" to apply for a wiretap. Villa also argued that Deputy Brockel, acting pursuant to long-standing practice, failed to timely submit the recordings to the state court that authorized the wiretap, in violation of a Title III requirement that officials submit intercepted conversations to the authorizing court "[i]mmediately upon the expiration of the period of the order, or extensions thereof."

The Ninth Circuit first ruled that Villa lacked Article III standing to seek declaratory and injunctive relief. The court said that she could demonstrate no individualized future harm that would justify prospective relief. The court rejected Villa's taxpayer-standing claim out of hand, and held that she "does not allege that she is more likely than any other member of the public to have her future conversations illegally intercepted." Because Villa lacked standing for prospective relief, the court said that she also lacks standing to pursue prospective relief on behalf of a putative class.

In contrast, the court held that Villa did have standing to pursue individual damages for past interceptions, but, as below, couldn't actually recover.

The court held next that Title III preempted Arizona law, and that Arizona officials violated Article III. As to authorizing wiretaps, the court adopted the standard set by the First Circuit: "so long as the state wiretapping statute, considered as a whole and as interpreted by state courts, is in substantial compliance with, and is therefore equal to, Title III, state wiretaps are permissible." The court said that Arizona's statute, which authorizes a principal prosecuting attorney to delegate authority to apply for a wiretap to a deputy, didn't meet the standard: "substantial compliance with Title III requires that the principal prosecuting attorney indicate, as part of the application process, that he or she is personally familiar with all of the 'facts and circumstances' justifying his or her 'belief that an order should be issued,'" but that the Arizona statute permitted the "principal prosecuting attorney to state that he or she is [only] generally aware of the criminal investigation . . . ."

As to making the recordings available to the court that approved the wiretap, the court said that "long-standing practice" at the time of Villa's wiretap, in which "county officials submitted recordings of intercepted conversations for sealing only at the conclusion of an entire criminal investigation," was "not in substantial compliance" with federal law. But the court went on to say that a practice of submitting recordings within 10 days would be in compliance with the Act.

But even though the court concluded that officials violated the Act, it also ruled that Villa couldn't recover damages, because the officials acted in good faith, consistent with Arizona law or long-standing practices. (Good faith is a defense under a Title III cause of action.)

August 6, 2017 in Cases and Case Materials, Federalism, Jurisdiction of Federal Courts, News, Opinion Analysis, Preemption, Standing | Permalink | Comments (0)

Tuesday, August 1, 2017

D.C. Circuit Says Customers Have Standing to Sue Health Insurer for Data Breach

The D.C. Circuit ruled today that a group of CareFirst customers, proceeding as a class, had standing to sue the health insurer for its carelessness in protecting customers' personal information after cyber-attackers allegedly stole that information. The ruling is a victory for the plaintiffs, but it doesn't mean that the case will proceed to the merits: the lower court still has to determine whether it has diversity jurisdiction.

The problem was that the plaintiffs alleged imminent harms from the breach, and not actual harms. (As it turns out, some plaintiffs did allege actual harms, but the court didn't rule on those claims, because its ruling on imminent harms was sufficient to support standing.) The court applied the substantial-risk-of-harm test and ruled that the plaintiffs alleged a sufficiently imminent harm. Contrasting Clapper v. Amnesty International, the court said,

Here, by contrast, an unauthorized party has already accessed personally identifying data on CareFirst's servers, and it is much less speculative--at the very least, it is plausible--to infer that this party has both the intent and the ability to use that data for ill. As the Seventh Circuit asked, in another data breach case where the court found standing, "Why else would hackers break into a . . . database and steal consumers' private information? Presumably, the purpose of the hack is, sooner or later, to make fraudulent charges or assume those consumers' identities." . . . No long sequence of uncertain contingencies involving multiple independent actors has to occur before the plaintiffs in this case will suffer any harm; a substantial risk of harm exists already, simply by virtue of the hack and the nature of the data that the plaintiffs allege was taken. That risk is much more substantial than the risk presented to the Clapper Court, and satisfies the requirement of an injury in fact.

As to traceability, the court said that this doesn't require the plaintiffs to sue only "the most immediate cause, or even a proximate cause, of the plaintiffs' injuries [in this case, the robbers]; it requires only that those injuries be 'fairly traceable' to the defendant.'" The plaintiffs satisfied this test.

As to redressability, the court said that the plaintiffs have incurred costs to mitigate any damage, and that these "self-imposed risk-mitigation costs" "can satisfy the redressability requirement, when combined with a risk of future harm that is substantial enough to qualify as an injury in fact." (But the court noted that these kinds of costs are insufficient to satisfy the injury-in-fact requirement.)

August 1, 2017 in Cases and Case Materials, Jurisdiction of Federal Courts, News, Opinion Analysis, Standing | Permalink | Comments (0)

Tuesday, July 25, 2017

Court Rejects Move to Halt Election Integrity Commission's Collection of Voter Information

Judge Colleen Kollar-Kotelly (D.D.C.) yesterday denied a motion by the Electronic Privacy Information Center for a Temporary Restraining Order and Preliminary Injunction to stop the Presidential Advisory Commission on Election Integrity from collecting voter roll data from the states.

The ruling also says that EPIC lacks organizational standing to sue on behalf of members of its advisory board, and that, while it has standing to seek redress for informational injuries under the E-Government Act, the Act isn't enforceable against the Commission (because it's not an "agency").

But the court went to lengths to say that the Commission limited its request to the states for only publicly available information, that the request is only a request (not a mandate) of the states, and that publicized voter information will be de-identified. If these things change, the court's analysis could well change, too. As a result, while the ruling allows the Commission's requests for voter roll information to go forward, the ruling also reminds us that states may decline to provide the information, and that the Commission will only get already-publicily-available information, and will have to store and use it with certain limitations.

The court said that EPIC lacked organizational standing to sue on behalf of members of its advisory board, because, even if EPIC is considered a membership organization for organizational standing purposes (which the court suggested it's not), "the only practical harms that Plaintiff's advisory board members would suffer, assuming their respective states decide to comply with the Commission's request in the future, is that their already publicly available information would be rendered more easily accessible by virtue of its consolidation on the [Commission's] computer systems . . . ." According to the court, that's not enough for standing.

But the court went on to say that EPIC had informational standing under the E-Government Act. The Act requires government agencies to conduct a privacy impact statement and publicize it. The court said that EPIC (1) had been deprived of this information and (2) therefore suffered the kind of harm that Congress sought to prevent by requiring it. The court also said that EPIC had standing under circuit precedent recognizing standing for an organization that "suffered a concrete and demonstrable injury to its activities . . . ." The court held that EPIC "has a long-standing mission to educate the public regarding privacy rights, and engage in this process by obtaining information from the government," and thus suffered such an injury.

But the court held that the Administrative Procedures Act (the basis of EPIC's suit, because the E-Government Act doesn't create a separate cause of action) doesn't apply to the Commission, because the Commission isn't an "agency" under the APA.

So even though EPIC has standing, it's not likely to succeed on the merits, and the court rejected its motion for a TRO and Preliminary Injunction.

July 25, 2017 in Cases and Case Materials, Jurisdiction of Federal Courts, News, Standing | Permalink | Comments (0)

Sunday, June 25, 2017

Fifth Circuit Says "Stigmatic" Harm Isn't Enough for Standing to Challenge State Opposite-Sex "Anti-Discrimination" Measure

The Fifth Circuit ruled last week that a group of plaintiffs lacked standing to challenge Mississippi's law that bans discrimination against those who believe that marriage is a union of one man and one woman. The court said that the plaintiffs pleaded only "stigmatic" harm, not concrete and particularized harm, and that this wasn't enough to get into federal course.

Mississippi's provision bans state "discriminatory action" against those whose "religious beliefs or moral convictions" say that marriage is a union between only one man and one woman. It applies to religious organizations when they make decisions regarding employment, housing, placement of children in foster or adoptive homes, or the "solemnization of a marriage based on a belief listed" in the provision. It also applies to parents if they raise their foster or adoptive children in accordance to the belief covered by the provision. And it applies to doctors, mental health counselors, and businesses that offer wedding-related services. The statute creates a private right of action for individuals for any violations by state officials and allows its use as a defense in private suits over conduct covered by the statute.

The plaintiffs are residents of Mississippi and two organizations (a church and a secular non-profit) that do not share the provision's belief that marriage is only between one man and one woman. They argued that "they are injured by the 'clear message' sent by [the provision] that the 'state government disapproves of and is hostile to same-sex couples, to unmarried people who engage in sexual relations, and to transgender people." They claimed that the provision violated the Establishment Clause and equal protection.

The Fifth Circuit tossed the case for lack of standing. The court said that the plaintiffs asserted only "stigmatic" harm, not concrete and particularized harm, and that the "stigmatic" harm simply wasn't enough to get into federal court. (The court held that the plaintiffs' asserted harm was nothing like the actual and concrete "exposure" harm in the monument, display, and prayer-at-football game cases. The court rejected the plaintiffs' argument that their case was just like the plaintiffs' case in Romer v. Evans, because the Romer Court didn't address standing, and lower courts therefore can't use it for that purpose.) The court also rejected the plaintiffs' theory of taxpayer standing (based on Flast v. Cohen), because the government hadn't yet spent money in support of the provision.

The ruling ends the case and leaves Mississippi's statute on the books--for now. Under the ruling, a viable challenger will probably have to wait for a concrete and particularized harm (discrimination) at the hands of a person or organization who falls within the protection of the provision, sue that person or organization, and argue that the provision violates the Constitution when the defendant raises it as a defense.

June 25, 2017 in Cases and Case Materials, Jurisdiction of Federal Courts, News, Opinion Analysis, Standing | Permalink | Comments (0)

Saturday, June 24, 2017

Pipeline Company Lacks Standing to Challenge State Foot-Dragging for Construction Approval

The D.C. Circuit ruled yesterday that Millennium Pipeline Company lacked standing to sue the New York State Department of Environmental Conservation for its foot-dragging on Millennium's application for a water-quality certificate--a prerequisite for building a pipeline under the Clean Water Act.

The ruling means that Millennium's case against the state agency is dismissed. But it also means that Millennium can proceed directly to the Federal Energy Regulatory Commission to get direct approval for the pipeline, considering the state agency's consideration waived.

The case arose when Millennium petitioned the state agency for a water-quality certificate, required under the Clean Water Act as a first step in gaining FERC approval for the pipeline. The state agency sat on the petition for over a year, however, arguing that it was incomplete. Millennium then sued the state agency, asking for a court order to require the agency to act so that it could take its application on to FERC.

But the D.C. Circuit ruled that Millennium lacked standing. That's because under the Clean Water Act when a state agency delays a decision for a year, the agency is deemed to have waived its consideration, and the applicant can take the application directly to FERC. As a result, the court said that Millennium hadn't suffered any harm from the state agency; after all, the agency's inaction only meant that Millennium could go right to FERC. The court went on to say that Millennium could sue FERC if it rejects the application, but that's down the road.

None of this breaks new law--and Millennium surely would have known this--so why'd Millennium sue? Probably because it anticipated opposition from the state agency down the road, and it wanted to get state-agency approval on the record now in order to preempt later opposition. The court had an answer for that, too: FERC, not the state agency, has final say, and Millennium can later sue FERC for any disapproval or delay.

June 24, 2017 in Cases and Case Materials, Jurisdiction of Federal Courts, News, Opinion Analysis, Standing | Permalink | Comments (0)

Thursday, June 22, 2017

Tenth Circuit Says Any Actual Injury Will Do in Establishment Clause Case

The Tenth Circuit ruled this week that the mother of a school child had standing to challenge under the Establishment Clause the school's fundraising and support for a religious mission trip, even though the child received just one e-mail and one flyer from school officials soliciting donations for the trip.

The ruling reversed a district court order dismissing the case on the ground that the child's exposure to unconstitutional activities at the school lacked "a degree of constancy or conspicuousness."

The case arose after public school officials sought donated or a school-sponsored, religious mission trip to Guatemala. Families enrolled in the district and the American Humanist Association filed suit, seeking nominal monetary damages and declaratory and injunctive relief. The district court dismissed all the claims, ruling that the plaintiffs failed to show sufficient harm and that they lacked standing as taxpayers. As to plaintiff Jane Zoe, the district court held that the harm--one e-mail soliciting donations and one flyer from school employees soliciting donations--wasn't pervasive enough to satisfy standing requirements.

The Tenth Circuit reversed as to Zoe. The court held that under well-settled Supreme Court and circuit precedent, any harm, even nominal harm, will do to establish standing, and that a plaintiff need not show any particular level of heightened pervasiveness or degree of harm.

But the court denied injunctive relief to Zoe, holding that "the record does not suggest that Zoe is likely to receive similar fundraising solicitations in the future." The court also held that the other individual plaintiffs lacked standing, because they couldn't show that they'd been exposed (like Zoe had).

The ruling sends the case back to the district court for consideration of the merits.

June 22, 2017 in Cases and Case Materials, Establishment Clause, Jurisdiction of Federal Courts, News, Opinion Analysis, Standing | Permalink | Comments (0)

Monday, June 12, 2017

Ninth Circuit Affirms Injunction Against Muslim Travel Ban

 In its per curiam unanimous opinion in Hawai'i v. Trump, the Ninth Circuit panel affirmed the finding of standing and held that the President's March 6, 2017 Executive Order "Protecting The Nation From Foreign Terrorist Entry Into The United States" (now numbered EO 13,780) (known as EO2, the revised travel ban or "Muslim Ban 2.0) most likely conflicts with the Immigration and Nationality Act (INA).   Thus, the Ninth Circuit affirmed the injunction against EO2.

The oral argument about a month ago raised both the statutory and constitutional issues, but  recall that District Judge Derrick Watson's opinion in Hawai'i v. Trump centered on the Establishment Clause claim.  For the Ninth Circuit, however, the statutory claim took precedence.  The Ninth Circuit noted that "the district court decided an important and controversial constitutional claim without first expressing its views on Plaintiffs’ statutory claims, including their INA-based claim," although the " INA claim was squarely before the district court."  The Ninth Circuit referred to the "admonition that “courts should be extremely careful not to issue unnecessary constitutional rulings,”and concluded that because "Plaintiffs have shown a likelihood of success on the merits of that claim," the court "need not" and does not "reach the Establishment Clause claim to resolve this appeal."

On the constitutional ramifications of finding EO2 exceeded the president's power under the statute, the court invoked the famous "Steel Seizure Case" framework by Justice Jackson:

Finally, we note that in considering the President’s authority, we are
cognizant of Justice Jackson’s tripartite framework in Youngstown Sheet & Tube
Co. v. Sawyer. See 343 U.S. 579, 635–38 (1952) (Jackson, J., concurring).
Section 1182(f) ordinarily places the President’s authority at its maximum. “When the President acts pursuant to an express or implied authorization of Congress, his authority is at its maximum, for it includes all that he possesses in his own right plus all that Congress can delegate.” Id. at 635. However, given the express will procedure for refugee admissions to this country, and § 1182(a)(3)(B)’s criteria for determining terrorism-related inadmissibility, the President took measures that were incompatible with the expressed will of Congress, placing his power “at its lowest ebb.” Id. at 637. In this zone, “Presidential claim to a power at once so conclusive and preclusive must be scrutinized with caution, for what is at stake is the equilibrium established by our constitutional system.” Id. at 638.

But, as the court continued, there would be a different state of affairs if Congress acted:

We have based our decision holding the entry ban unlawful on statutory considerations, and nothing said herein precludes Congress and the President from reaching a new understanding and confirming it by statute. If there were such consensus between Congress and the President, then we would view Presidential power at its maximum, and not in the weakened state based on conflict with statutory law. See id. at 635–38.

In two respects, the Ninth Circuit narrowed the injunction.  First, it vacated the preliminary injunction "to the extent it enjoins internal review procedures that do not burden individuals outside of the executive branch of the federal government."  Second, like the Fourth Circuit en banc opinion in International Refugee Assistant Project v. Trump, it held that the injunction should not be entered against the president as defendant.  But the essential effect of the opinion affirms the injunction against EO2.

Thus, the controversial presidential travel ban Executive Orders have been challenged in courts and found invalid.  EO1 was enjoined and eventually withdrawn.  This Ninth Circuit opinion on EO2 on statutory grounds, joins the Fourth Circuit en banc opinion in International Refugee Assistant Project v. Trump finding EO2 most likely unconstitutional on Establishment Clause.  The DOJ has sought review by the Supreme Court on the Fourth Circuit ruling; most likely the DOJ will similarly seek review of this Ninth Circuit ruling.

 

 

June 12, 2017 in Cases and Case Materials, Executive Authority, Family, First Amendment, Opinion Analysis, Race, Recent Cases, Religion, Standing, Supreme Court (US) | Permalink | Comments (0)

Monday, June 5, 2017

Court Says Intervenors Must Have Standing of Their Own

The Supreme Court ruled today that intervenors as of right under Rule 24(a)(2) have to meet Article III standing requirements if they wish to pursue relief not requested by a plaintiff.

But the Court didn't say whether the intervenor in the case sought relief different from the plaintiff. Instead, the Court remanded for further consideration on that point.

The case involved Steven Sherman's regulatory takings lawsuit against the town of Chester, New York, for holding up his housing subdivision project, MareBrook. A real estate development corporation, Laroe Estates, Inc., paid Sherman more than $2.5 million for a portion of the property, but agreed to transfer a certain number of lots back to Sherman when the town approved the development. Under the agreement, Laroe also had authority to settle a debt that Sherman owed a bank and to terminate the agreement with Sherman if the settlement failed. It did fail, and the bank took over the property, but Laroe didn't terminate its agreement with Sherman.

Laroe moved to intervene as of right pursuant to Rule 24(a)(2).

The Court ruled that Laroe had to satisfy Article III standing, if it sought relief different than the relief that Sherman sought. (The parties (and the United States as amicus) all agreed on this.) But the Court said that the record was ambiguous as to the relief that Laroe actually sought. So it remanded the case for further proceedings.

If the lower courts determine that Laroe seeks relief that's different than the relief that Sherman seeks--including the same relief, but in its own (not Sherman's) name--Laroe will have to demonstrate its own Article III standing.

June 5, 2017 in Cases and Case Materials, Courts and Judging, Jurisdiction of Federal Courts, News, Opinion Analysis, Standing | Permalink | Comments (0)

Thursday, May 25, 2017

Fourth Circuit En Banc Upholds Injunction Against President's "Travel Ban"

In its opinion in International Refugee Assistance Project (IRAP)  v. Trump, heard by the en banc court without an intervening panel decision, the court affirmed in almost every respect Maryland District Judge Theodore Chuang's Opinion and nationwide injunction against the President's March 6, 2017 Executive Order "Protecting The Nation From Foreign Terrorist Entry Into The United States" (now numbered EO 13,780), which is colloquially known as the revised travel ban or "Muslim Ban 2.0."  The court heard oral argument on May 8. 

The court's opinion finding that the plaintiffs have standing and that the plaintiffs are likely to succeed on the merits of their Establishment Clause challenge to the Executive Order was authored by Chief Judge Roger Gregory with six other judges joining in full in the almost 80 page opinion.  Additional opinions bring the total opinion pages to over 200: three other judges concurred in separate opinions;  Three judges dissented in separate opinions (with the dissenters joining each of the dissenting opinions). Recall that two other judges recused. 

On the merits of the Establishment Clause claim as applied to an Executive Order involving immigration, Judge Gregory's opinion for the court agreed with the United States that the deferential standard in Kleindienst v. Mandel (1972) is the appropriate starting point but disagreed with the government that it ended the inquiry.  Instead, "Mandel's requirement that an immigration action be 'bona fide' may in some instances compel more searching judicial review."  The court found that while the national security interest was facially legitimate, the plaintiffs made a requisite showing that it was provided in "bad faith."

Plaintiffs point to ample evidence that national security is not the true reason for EO-2, including, among other things, then-candidate Trump’s numerous campaign statements expressing animus towards the Islamic faith; his proposal to ban Muslims from entering the United States; his subsequent explanation that he would effectuate this ban by targeting “territories” instead of Muslims directly; the issuance of EO-1, which targeted certain majority-Muslim nations and included a preference for religious minorities; an advisor’s statement that the President had asked him to find a way to ban Muslims in a legal way; and the issuance of EO-2, which resembles EO-1 and which President Trump and his advisors described as having the same policy goals as EO-1. [citations to record omitted].  Plaintiffs also point to the comparably weak evidence that EO-2 is meant to address national security interests, including the exclusion of national security agencies from the decisionmaking process, the post hoc nature of the national security rationale, and evidence from DHS that EO-2 would not operate to diminish the threat of potential terrorist activity.

Having cleared the hurdle of Mandel, the court then considered the application of the Establishment Clause test articulated in Lemon v. Kurtzman, noting that "in the context of this case, there is an obvious symmetry between Mandel's "bona fide" prong and the constitutional inquiry establishment in Lemon. Both tests ask courts to evaluate the government's purpose for acting."

Thus, Judge Gregory's opinion analyzed some of the same material regarding the EO's bona fide quality to determine whether the EO had a primary secular government purpose as required under Lemon's first prong.  But the analysis the court conducted under Lemon was much more detailed.  The court relied upon McCreary County v. ACLU of Kentucky (2005), in which the United States Supreme Court concluded that a judge's initial removal of his posting of the Ten Commandments in the courthouse was not cured by his subsequent posting of the biblical text surrounded by other texts.  In McCreary, the Court articulated the correct viewpoint as the "reasonable objective observer" who should take into account the traditional external signs but should not perform judicial psychoanalysis. 

It is this portion of the opinion (Part IVA2; pages 54-70 in text) regarding the purpose of EO-2 that is central.  The court finds there is a "compelling case" that EO-2's "primary purpose is religious."  It begins by discussing the candidate's campaign statements, later rejecting the argument that these statements should be subject to a "bright-line rule" that they should not be considered.  Instead, the court states that the "campaign statements here are probative of purpose because they are closely related in time, attributable to the primary decisionmaker, and specific and easily connected to the challenged action." 

Just as the reasonable observer’s “world is not made brand new every morning,” McCreary,  nor are we able to awake without the vivid memory of these statements. We cannot shut our eyes to such evidence when it stares us in the face, for “there’s none so blind as they that won’t see.” Jonathan Swift, Polite Conversation 174 (Chiswick Press ed., 1892). If and when future courts are confronted with campaign or other statements proffered as evidence of governmental purpose, those courts must similarly determine, on a case-by-case basis, whether such statements are probative evidence of governmental purpose. Our holding today neither limits nor expands their review.

Moreover, the court considered the by now familiar statements by spokespeople: advisor and former mayor Rudolph Guiliani on EO-1; Senior Policy Advisor Miller and White House Press Secretary Spicer on EO-2.  The court further found that the government's argument that EO-2's primary purpose was national security rather than religious

is belied by evidence in the record that President Trump issued the First Executive Order without consulting the relevant national security agencies, J.A. 397, and that those agencies only offered a national security rationale after EO-1 was enjoined. Furthermore, internal reports from DHS contradict this national security rationale, with one report stating that “most foreign-born, US-based violent extremists likely radicalized several years after their entry to the United States, limiting the ability of screening and vetting officials to prevent their entry because of national security concerns.” According to former National Security Officials, Section 2(c) serves “no legitimate national security purpose,” given that “not a single American has died in a terrorist attack on U.S. soil at the hands of citizens of these six nations in the last forty years” and that there is no evidence of any new security risks emanating from these countries. Corrected Brief for Former National Security Officials as Amici Curiae Supporting Appellees 5–8, ECF No. 126-1. Like the district court, we think this strong evidence that any national security justification for EO-2 was secondary to its primary religious purpose and was offered as more of a “litigating position” than as the actual purpose of EO-2. See McCreary, 545 U.S. at 871 (describing the government’s “new statements of purpose . . . as a litigating position” where they were offered to explain the third iteration of a previously enjoined religious display). And EO-2’s text does little to bolster any national security rationale: the only examples it provides of immigrants born abroad and convicted of terrorism-related crimes in the United States include two Iraqis—Iraq is not a designated country in EO-2—and a Somalian refugee who entered the United States as a child and was radicalized here as an adult. EO-2, § 1(h). The Government’s asserted national security purpose is therefore no more convincing as applied to EO-2 than it was to EO-1.

In short, the court found that EO-2 cannot be divorced from the cohesive narrative linking it to the animus that inspired it," and thus EO-2 "likely fails Lemon's purpose prong" and is unconstitutional under the Establishment Clause.

The court affirmed the preliminary injunction as appropriately nationwide, but did agree with the government that the injunction should not be issued "against the President himself."  Thus, the injunction was lifted in that regard, although the court noted that while the President was not directly bound, the court assumes "it is substantially likely" that the President would abide by the the court's authoritative interpretation of section 2 of EO-2.

Recall that a Ninth Circuit panel is also considering the constitutionality of EO-2; it heard oral arguments on May 15 in Hawai'i v. Trump.

May 25, 2017 in Courts and Judging, Current Affairs, Establishment Clause, First Amendment, Opinion Analysis, Religion, Standing, Travel | Permalink | Comments (2)

Wednesday, May 24, 2017

Fourth Circuit Says Case Challenging NSA Upstream Surveillance Can Move Forward

The Fourth Circuit ruled yesterday that a case challenging the NSA's upstream surveillance program can move forward. The ruling reverses a district court ruling that dismissed the case for lack of standing, citing Clapper v. Amnesty International. The Fourth Circuit distinguished Clapper, however, and let the case move forward.

In short, the two key differences in Clapper: Wikimedia has more communications with a larger, more comprehensive reach than the plaintiffs in Clapper; and the plaintiffs here learned (and pleaded) more about the nature of the program.

In so ruling, the court followed the Third Circuit's approach in a similar case last year, Schuchardt v. President of the United States.

The case involved two challenges to the upstream surveillance program under Section 702 of the FISA Amendments Act of 2008. (This program authorizes the government, subject to certain controls, to collect and search electronic communications between an overseas target and a person in the US.) In the first challenge, the "Wikimedia challenge," Wikimedia argued that given its size and amount of international communications, and given the nature of the upstream surveillance program, the NSA necessarily collected at least some of its Internet communications. In the second challenge, the "dragnet challenge," plaintiffs argued that the nature of the NSA program alone likely meant that the NSA in fact collects all Internet communications. (The plaintiffs in this case had more information about the nature of the program than the plaintiffs in the earlier Clapper case, so could plead a stronger argument.)

The court ruled that "Wikimedia has plausibly alleged that its communications travel all the roads that a communication can take, and that the NSA seizes all of the communications along at least one of those roads." Moreover, "because Wikimedia has self-censored its speech and sometimes forgone electronic communications in response to Upstream surveillance, it also has standing to sue for a violation of the First Amendment." As to Clapper: "Unlike in Clapper, where the plaintiffs based their theories of standing on prospective or threatened injury and actions taken in response thereto, Wikimedia pleaded an actual and ongoing injury [actual, not speculative, collection of at least some of Wikimedia's communications], which renders Clapper's certainly-impending analysis inapposite here.

But at the same time, the court ruled that the plaintiffs lacked standing to assert the dragnet challenge. In short, the court said that the plaintiffs could not "plausibly establish that the NSA is intercepting 'substantially all' text-based communications entering and leaving the United States." (In contrast, Wikimedia only had to show that the NSA is conducting upstream surveillance on a single backbone link on the Internet connections to the United States, which it did.)

Judge Davis concurred with the result as to the Wikimedia challenge, but dissented as to the dragnet challenge: "However, because I would find that the non-Wikimedia Plaintiffs also have standing, I respectfully dissent in part."

May 24, 2017 in Cases and Case Materials, Courts and Judging, Jurisdiction of Federal Courts, News, Opinion Analysis, Standing | Permalink | Comments (0)

Monday, May 15, 2017

Ninth Circuit Oral Arguments in Hawai'i v. Trump

A panel of the Ninth Circuit - - - Judge Ronald Gould, Judge Richard Paez, and Senior Judge Michael Hawkins - - - heard oral arguments in Hawai'i v. Trump, the appeal from the preliminary injunction against the President's March 6, 2017 Executive Order "Protecting The Nation From Foreign Terrorist Entry Into The United States" (now numbered EO 13,780) (colloquially known as the revised travel ban or "Muslim Ban 2.0").

Arguing for the DOJ in favor of the United States was Acting Solicitor General Jeffrey Wall, who also argued the same position a week ago in the Fourth Circuit en banc argument in Trump v. International Refugee Assistance Project (IRAP).  Indeed, there were specific references in the Ninth Circuit argument to that argument with regard to the scope of the injunction in Hawai'i v. Trump.  The argument spent a fair amount of time on the statutory claims, which were a basis of Maryland District Judge Theodore Chuang's injunction on appeal to the Fourth Circuit, but were not the basis of the injunction by Hawai'i District Judge Derrick Watson, who ruled on the basis of the Establishment Clause.  The issue of standing also peppered the arguments.  Wall's argument in the Ninth Circuit seemed less emphatic about the "presumption of regularity" entitled to the President than the argument last week, perhaps because of intervening events. Wall certainly did, however, hammer the Government's point that the deferential standard of Kleindienst v. Mandel (1972) should apply.  And although it was not specifically referenced, the dissent from en banc review in a Ninth Circuit precursor case, Washington v. Trump, which largely rested on Mandel, implicitly shaped the arguments.

For his part, arguing for Hawai'i, Neal Katyal, formerly with the Department of Justice, stressed that the Ninth Circuit's panel opinion in Washington v. Trump should be the model.  Katyal argued that the EO was unprecedented.

The video of the argument is worth watching, not only for its explication of the issues, but also as examples of excellent appellate advocacy.

 

However, there was a quite odd interchange regarding Neal Katyal's previous litigation stances.  At around 52:03 in the video above, Senior Judge Hawkins said to Katyal, "You have argued in the past to give deference to the Executive in immigration matters." After Katyal's acknowledgement, Judge Hawkins refers to an amicus brief in United States v. Texas and reads a passage.  The brief to which Hawkins seems to have been referring is Brief of Former Commissioners of the United States Immigration and Naturalization Service as Amici Curiae In Support Of Petitioners and the portions seem to be from page 12 of the brief, supporting the Congressional grant of wide authority to make decisions regarding deferred action in immigration deportations.  After Katyal's response, Judge Hawkins made a second reference: "You also wrote a brief in Flores-Villar."  The brief to which Hawkins refers is Katyal's brief as Acting Solicitor General for the Respondent United States in Flores-Villar v. United States, involving a mother-father differential for unwed parents.  Judge Hawkins reads the following passage without the case references or citations:

[T]he United States’ “policy toward aliens” is “vitally and intricately interwoven with * * * the conduct of foreign relations,” a power that likewise is vested in the political Branches. Harisiades v. Shaughnessy, 342 U.S. 580, 588-589 (1952). “Any rule of constitutional law that would inhibit the flexibility of the political branches of government to respond to changing world conditions should be adopted only with the greatest caution.” Mathews v. Diaz, 426 U.S. 67, 81 (1976).

Katyal responds that when he was with the United States Government he tried to convince the United States Supreme Court of this, but the Court "did not bite."  Recall that Flores-Villar was a 4-4 affirmance of the Ninth Circuit.

Certainly, both United States v. Texas, which has usually surfaced in the context of a state's standing, and Flores-Villar are somewhat pertinent immigration cases involving the scope of judicial deference.  Nevertheless, specific references to an individual attorney's briefs does seem unusual.

 

May 15, 2017 in Congressional Authority, Courts and Judging, Current Affairs, Due Process (Substantive), Establishment Clause, Executive Authority, First Amendment, Oral Argument Analysis, Recent Cases, Standing | Permalink | Comments (0)

Tuesday, April 25, 2017

Court Temporarily Halts Trump's Sanctuary Cities Order

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).

April 25, 2017 in Cases and Case Materials, Executive Authority, News, Opinion Analysis, Ripeness, Separation of Powers, Standing | Permalink | Comments (0)

Wednesday, April 19, 2017

CREW Files Amended Emoluments Complaint

The Center for Responsibility and Ethics in Washington sought to tighten standing by adding plaintiffs to its complaint against President Trump for violations of the Emoluments Clause. We previously posted on the case here.

CREW's standing to sue was sure to be an early issue, even a roadblock, in the case. So the organization added plaintiffs ROC United, a nonprofit corporation with restaurant members and a restaurant owner in its own right, and an individual who books events for Washington hotels. Both new plaintiffs argue that President Trump, by doing and gaining business at his own hotels and restaurants in violation of the Emoluments Clause, is harming their bottom line by taking away business.

The move is designed the tighten standing. In order to sue in federal court, a plaintiff has to show that they suffered an actual or imminent concrete and particularized injury, that the defendant's alleged actions caused the injury, and that their requested relief would redress their injury. The amended complaint almost surely satisfies these requirements, but we're still likely to see a motion to dismiss for lack of standing.

April 19, 2017 in Cases and Case Materials, Courts and Judging, Jurisdiction of Federal Courts, News, Standing | Permalink | Comments (0)

Wednesday, March 29, 2017

Hawai'i District Judge Extends Injunction Against Muslim Travel Ban 2.0

In an opinion and order in Hawai'i v. Trump, United States District Judge Derrick Watson has granted the motion to convert the previously issued Temporary Restraining Order  against the President's March 6, 2017 Executive Order "Protecting The Nation From Foreign Terrorist Entry Into The United States" (now numbered EO 13,780) (colloquially known as the revised travel ban or "Muslim Ban 2.0") into a Preliminary Injunction.  This has the effect of extending the time frame of the injunction as well as making appeal likely.

Judge Watson incorporated the rationales as stated in the previous TRO as we previously discussed, but elaborated on several matters.  First, Judge Watson again considered the standing issues and again concluded that both the state of Hawai'i and the individual plaintiff, Dr. Ismail Elshikh, had standing.

On the likelihood of success on the merits, Judge Watson again set out the classic Establishment Clause test articulated in Lemon v. Kurtzman (1971) and again concluded that the first prong requiring the government action to have a primary secular purpose was not met.

650px-Seal_of_the_State_of_Hawaii.svgJudge Watson declared that "As no new evidence contradicting the purpose identified by the Court has been submitted by the parties since the issuance of the March 15, 2017 TRO, there is no reason to disturb the Court’s prior determination" (emphasis in original).

Instead, the Federal Defendants take a different tack. They once more urge the Court not to look beyond the four corners of the Executive Order. According to the Government, the Court must afford the President deference in the national security context and should not “‘look behind the exercise of [the President’s] discretion’ taken ‘on the basis of a facially legitimate and bona fide reason.’” Govt. Mem. in Opp’n to Mot. for TRO 42–43 (quoting Kliendienst v. Mandel, 408 U.S. 753, 770 (1972)), ECF No. 145. No binding authority, however, has decreed that Establishment Clause jurisprudence ends at the Executive’s door. In fact, every court that has considered whether to apply the Establishment Clause to either the Executive Order or its predecessor (regardless of the ultimate outcome) has done so.

(emphasis in original).  The footnote to this passage includes citations to the recently decided Sarsour v. Trump (Virginia District Judge upholds EO 2) and Int’l Refugee Assistance Project (IRAP) v. Trump  (Maryland District Judge enjoins part of EO 2). Judge Watson adds

The Court will not crawl into a corner, pull the shutters closed, and pretend it has not seen what it has.

While future Executive action could cure the defects, the attempt by this second EO to merely sanitize the first EO was not sufficient. 

Judge Watson declined to narrow the TRO's scope and the injunction is a nationwide one including sections 2 and 6. The judge stated he was

cognizant of the difficult position in which this ruling might place government employees performing what the Federal Defendants refer to as “inward-facing” tasks of the Executive Order.
Any confusion, however, is due in part to the Government’s failure to provide a workable framework for narrowing the scope of the enjoined conduct by specifically identifying those portions of the Executive Order that are in conflict with what it merely argues are “internal governmental communications and activities, most if not all of which could take place in the absence of the Executive Order but the status of which is now, at the very least, unclear in view of the current TRO.” Mem. in Opp’n 29. The Court simply cannot discern, on the present record, a method for determining which enjoined provisions of the Executive Order are causing the alleged confusion asserted by the Government. 

In other words, the federal government cannot complain about the injunction's breadth if the government does not take steps necessary to narrow it. Quoting the Ninth Circuit panel on the original EO in Washington v. Trump, Judge Watson stated that "even if the [preliminary injunction] might be overbroad in some respects, it is not our role to try, in effect, to rewrite the Executive Order.”

Judge Watson's order and opinion set the stage for the case to be appealed to the Ninth Circuit, even as IRAP v. Trump is beginning to proceed in the Fourth Circuit.

March 29, 2017 in Establishment Clause, Executive Authority, Family, First Amendment, Opinion Analysis, Race, Religion, Standing | Permalink | Comments (0)

Saturday, March 25, 2017

Virginia District Judge Upholds Muslim Travel Ban 2.0

In his opinion in Sarsour v. Trump, United States District Judge for the Eastern District of Virginia Anthony Trenga denied the Plaintiffs' motion for Temporary Restraining Order or Preliminary Injunction.

At issue is the President's March 6, 2017 Executive Order "Protecting The Nation From Foreign Terrorist Entry Into The United States" (now numbered EO 13,780), which is colloquially known as the revised travel ban or "Muslim Ban 2.0." 

Recall that the original EO, 13769, issued January 27, 2017, also entitled "Protecting The Nation From Foreign Terrorist Entry Into The United States," was enjoined by the Ninth Circuit in Washington v. Trump,; our backgrounder on the issues is here.  The President withdrew the initial EO and the Ninth Circuit denied the sua sponte motion for en banc review, but in a somewhat unusual step there was a substantive dissenting opinion authored by Judge Jay Bybee.

Recall also that regarding the March 6, 2017 EO ("Muslim Travel Ban 2.0"), two other federal district judges issued injunctions before the EO became effective.  In Hawai'i v. Trump, United States District Judge Derrick Watson issued a TRO of sections 2 and 6 of the EO based on the likelihood of plaintiffs to prevail on their Establishment Clause challenge.  In International Refugee Assistance Project (IRAP) v. Trump, Maryland District Judge Theodore Chuang issued a preliminary injunction of section 2(e) of the EO based on the likelihood of plaintiffs to prevail on their statutory claim under the Immigration and Nationality Act and their constitutional claim under the Establishment Clause.Judge Trenga disagrees with both Hawai'i v. Trump and IRAP v. Trump, although the opinion does not engage in a substantial dialogue with these opinions. 

Linda Sarsour
Linda Sarsour, plaintiff via

For example, on the statutory claim in Sarsour v. Trump, Judge Trenga concludes after reviewing "the text and structure of the INA as a whole, and specifically, the practical, operational relationships" of the provisions, that the nondiscrimination restrictions of §1152 do not "apply to the issuance or denial of non-immigrant visas or entry under §1182(f).  In a footnote, Judge Trenga acknowledges that the judge in IRAP v. Trump "attempted to reconcile these seemingly contradictory provisions," and simply adds, "There, the court concluded that Section 1152 bars the President from discriminating on the basis of nationality in the issuance of immigrant visas only." (footnote 12).  Judge Trenga characterized the Immigration and Nationality Act (INA) as a "legislative rabbit warren that is not easily navigated," but his ultimate conclusion seems to be based on a broad view of Executive authority. Judge Trenga writes that the he "also has substantial doubts that Section 1152 can be reasonably read to impose any restrictions on the President’s exercise of his authority under Sections 1182(f) or 1185(a)."

Similarly, on the Establishment Clause claim Judge Trenga accorded the Executive broad deference.  Unlike the judges in both Hawai'i v. Trump and IRAP v. Trump, Judge Trenga found that the facial neutrality of "EO-2" was determinative.  Judge Trenga held that past statements - - - or the EO-2 statements (described in a footnote as including the President's statement that EO-2 was a "watered-down version" of EO-1, and Presidential Advisor Stephen Miller's statements) - - - have not "effectively disqualified him from exercising his lawful presidential authority":

In other words, the substantive revisions reflected in EO-2 have reduced the probative value of the President’s statements to the point that it is no longer likely that Plaintiffs can succeed on their claim that the predominate purpose of EO-2 is to discriminate against Muslims based on their religion and that EO-2 is a pretext or a sham for that purpose. To proceed otherwise would thrust this Court into the realm of “‘look[ing] behind’ the president’s national security judgments . . . result[ing] in a trial de novo of the president’s national security determinations,” Aziz, 2017 WL 580855, at *8, and would require “a psychoanalysis of a drafter’s heart of hearts,” all within the context of extending Establishment Clause jurisprudence to national security judgments in an unprecedented way.

Likewise, on the Equal Protection claim, Judge Trenga concluded that although the EO would have a differential impact on Muslims, it was facially neutral.  The Judge relied on an earlier Fourth Circuit case, Rajah v. Mukasy (2008) and articulated the standard as requiring merely a rational national security basis for an immigration measure to survive an Equal Protection Clause challenge.  And again, Judge Trenga accorded the Executive wide discretion: "These are judgments committed to the political branches - - - not to the courts."

In sum, Judge Trenga's opinion aligns with the Ninth Circuit dissent from en banc review by Judge Bybee and is in opposition to the other district judges who have rendered opinions on the second EO which have enjoined its enforcement.  

March 25, 2017 in Courts and Judging, Current Affairs, Equal Protection, Establishment Clause, Executive Authority, Fifth Amendment, First Amendment, Opinion Analysis, Race, Religion, Standing, Travel | Permalink | Comments (0)

Wednesday, March 15, 2017

Hawai'i District Judge Issues TRO Against Muslim Travel Ban 2.0

United States District Judge Derrick Watson has issued a Temporary Restraining Order in Hawai'i v. Trump against the President's March 6, 2017 Executive Order "Protecting The Nation From Foreign Terrorist Entry Into The United States" (now numbered EO 13,780), which is colloquially known as the revised travel ban or "Muslim Ban 2.0."  Recall that the original EO, 13769, issued January 27, 2017, also entitled "Protecting The Nation From Foreign Terrorist Entry Into The United States," and now enjoined by the Ninth Circuit in Washington v. Trump, as well as subject to an injunction in Virginia in Aziz v. Trump (note that the state of Virginia intervened). Our backgrounder on the issues is here.  Recall also that Judge Watson allowed Hawai'i to amend its original complaint challenging the previous EO. 

Judge Watson's more than 40 page opinion first engages in an explanation of the facts giving rise to the litigation.

HawaiiDetailedMapNext, Judge Watson concludes there is Article III standing.  He finds that Hawai'i has standing based on its proprietary interests (and thus there was no need to reach the parens patriae standing theory).  The first proprietary interest is the state's financial and intangible interests in its universities, very similar to the interests the Ninth Circuit found sufficient in Washington v. Trump, involving the previous EO.  The second proprietary interest was to the state's "main economic driver: tourism."  Additionally, Judge Watson concludes that Dr. Elshikh, added as a plaintiff in the amended complaint has standing, specifically addressing the Establishment Clause claim in which injury can be "particularly elusive." Moreover, his claim is ripe.

As to the likelihood of success on the merits prong of the TRO requirement, Judge Watson concluded that the plaintiffs "and Dr. Elshikh in particular" are likely to succeed on the merits of the Establishment Clause claim (and thus the court did not reach the other claims).

Judge Watson acknowledged that the EO does not facially discriminate for or against any particular religion, or for or against religion versus non-religion. There is no express reference, for instance, to any religion nor does the Executive Order—unlike its predecessor—contain any term or phrase that can be reasonably characterized as having a religious origin or connotation.

Nevertheless, the court can certainly look behind the EO's neutral text, despite the Government's argument to the contrary, to determine the purpose of the Government action.  Judge Watson stated that the record before the court was "unique," including "significant and unrebutted evidence of religious animus driving the promulgation" of the EO and its "related predecessor."  Judge Watson then provided excerpts of several of Trump's statements, and rejected the Government's caution that courts should not look into the "veiled psyche" and "secret motives" of government decisionmakers:

The Government need not fear. The remarkable facts at issue here require no such impermissible inquiry. For instance, there is nothing “veiled” about this press release: “Donald J. Trump is calling for a total and complete shutdown of Muslims entering the United States.[]” SAC ¶ 38, Ex. 6 (Press Release, Donald J. Trump for President, Donald J. Trump Statement on Preventing Muslim Immigration (Dec. 7, 2015), available at https://goo.gl/D3OdJJ)). Nor is there anything “secret” about the Executive’s motive specific to the issuance of the Executive Order:
Rudolph Giuliani explained on television how the Executive
 Order came to be. He said: “When [Mr. Trump] first announced
 it, he said, ‘Muslim ban.’ He called me up. He said, ‘Put a
commission together. Show me the right way to do it legally.’”
SAC ¶ 59, Ex. 8.
On February 21, 2017, commenting on the then-upcoming revision to the Executive Order, the President’s Senior Adviser, Stephen Miller, stated, “Fundamentally, [despite “technical” revisions meant to address the Ninth Circuit’s concerns in Washington,] you’re still going to have the same basic policy outcome [as the first].” SAC ¶ 74.

In a footnote, Judge Watson lists "many more" examples.

Moreover, Judge Watson engaged with the plaintiffs' arguments that the EO was contextual, including pointing out that the security rationales listed in the EO included an incident involving an Iraqi national when Iraq was no longer included in the EO; the delayed timing of the EO; and the focus on nationality rather than residence.  But Judge Watson noted that while such "assertions certainly call the motivations behind the Executive Order into greater question, they are not necessary to the Court's Establishment Clause determination."

Judge Watson does note that context could change and that the Executive is not forever barred, but as it stands the purpose of the EO is one that has a primary religious discriminatory purpose and will most likely not survive the Establishment Clause challenge.

Having found a likelihood of success on the merits of the Establishment Clause claim, Judge Watson easily found there was irreparable harm and that a temporary restraining order was appropriate.

Judge Watson's injunction against Sections 2 and 6 of the EO applies "across the Nation."  Should an emergency appeal be sought, Judge Watson's order already denies a stay of the TRO, but does direct the parties to submit a briefing schedule for further proceedings.

March 15, 2017 in Courts and Judging, Establishment Clause, Executive Authority, First Amendment, Opinion Analysis, Race, Religion, Standing | Permalink | Comments (0)