Friday, March 29, 2013
a law prof, hits precisely the right tones for those already acquainted with the material. Here's a bit from Milan's "truncated transcript":
SOTOMAYOR: So let me ask a real question. If marriage is a fundamental right, is the state ever allowed to limit it?
KENNEDY: Enough about gays and lesbians. Can we talk about me for a minute? Because I feel a little uncomfortable with this discussion. In fact, I’m kind of feeling like taking my swing-voting ball and going home. Who wants to dig the case?
[note: dig=acronym for Dismissed as Improvidently Granted]
OLSON: Uh. Kinda staggered here. You want to dig the case? We…we spent weeks preparing for this, the entire country is watching, millions of people could have their lives changed, and you want to dig the case?
KENNEDY: I’m just saying. Oh, Olson, you’re all out of time. Nice ending note, though.
Worth a read in its entirety.
[h/t Darren Rosenblum]
Wednesday, March 27, 2013
In the second of the same-sex marriage cases, after yesterday's Proposition 8 argument, the Court heard oral argument today in United States v. Windsor, a grant of certiorari to the Second Circuit opinion holding DOMA unconstitutional and applying intermediate scrutiny to sexual orientation classifications.
Edith Windsor (pictured) argues that DOMA - - - the Defense of Marriage Act - - -violates the equal protection component of the Fifth Amendment. Recall DOMA is not being defended by the Obama Administration, but by BLAG - the Bipartisan Legal Advisory Group - - - at taxpayer expense which reportedly topped $3 million even before today's arguments.
The extended two hour session had several attorneys arguing: LawProf Vicki Jackson, Court-appointed as amicus on the standing issue; Sri Srinivasan, Deputy Solictor General (supporting Windsor on the standing issue); Paul D. Clement on behalf of BLAG; Solicitor General Donald B. Verrilli (supporting Windsor); and Roberta A. Kaplan on Behalf of Windsor.
On the standing issue:
Similar to the Proposition 8 case argued yesterday, the fact that the government is not defending the constitutionality of the law raises a quetions about the Court's power under Article III to decide the issues.
Justice Kagan asked one of the most trenchant questions regarding standing and injury, especially given the Obama Administration's stated belief that DOMA is unconstitutional:
The Government is willing to pay that $300,000, would be happy to pay that $300,000, but whether the Government is happy or sad to pay that $300,000, the Government is still paying the $300,000, which in the usual set of circumstances is the classic Article III injury. Why isn't it here?
But Jackson answered that the federal government had not asked the Court to remedy that injury and that the Article III "case or controversy" requirement is "nested in an adversarial system."Throughout the arguments on standing there was a search for the most controlling precedent - - - with Justice Roberts' asking "is there any case where all the parties agreed with the decision below and we upheld appellate jurisdiction? Any case?" The general consensus seemed to be that Windsor was distinct from the most similar case, INS v.Chadha decided in 1983. (Chadha involved the legislative veto and produced a very fractured set of opinions on the merits). Justice Scalia had some barbs to throw at the present administration, contrasting it to when he was at the Office of Legal Counsel.
On the merits:
The challenge to DOMA is under the equal protection component of the Fifth Amendment, with the Solicitor General arguing that the standard to be applied is intermediate scrutiny and Kaplan arguing that DOMA failed even rational basis scrutiny. Yet the equal protection arguments were embroiled with the federalism and Congressional power to pass DOMA; Justice Kennedy stated that the federalism and equal protection issues were "intertwined." [A good example this intertwinement occurred in the First Circuit opinion that held DOMA unconstitutional.]
For Solicitor General Verrilli, the intertwinement aspect was a cause of consternation and undercut his argument yesterday in the Proposition 8 case that even a state law denying same-sex marriage violated equal protection and that the correct standard was intermediate scrutiny as the Second Circuit held.
The consistency principle of equal protection doctrine - - - that the same standard should apply no matter what classification was benefitted or burdened - - - was also a focus, with hypotheticals about the standard should Congress decide that it would provide federal benefits to same-sex couples even if the state did not recognize their marriages. [The question of who would have standing to challenge such a law did not arise].
Justice Roberts repeatedly brought up the question of animus as part of a rationality with bite inquiry, asking at least twice whether the 84 Senators who voted for DOMA and the President [Clinton] were motivated by animus. Justice Roberts also raised the question of political powerlessness, often an inquiry in determining the level of equal protection scrutiny. Roberts echoed an opinion expressed by Justice Scalia in earlier cases that sexual minorities were anything but politically powerless when he told Roberta Kaplan, representing Edith Windsor, "As far as I can tell, political figures are falling over themselves to endorse your side of the case."
Justice Ginsburg probably uttered the most memorable quote of the day's arguments. In her questioning of Paul Clement, who represented BLAG, she condensed his argument as saying that in granting same-sex marriages, states were nevertheless saying there were really "two kinds of marriage; the full marriage, and then this sort of skim milk marriage." Her remark would be even more noteworthy for people who recall that the scrutiny standard is often traced to the famous footnote 4 in Carolene Products, a case about - - - milk.
Monday, March 11, 2013
Debuting on line today is volume 37:1 of the NYU Review of Law & Social Change, a symposium issue dedicated to Perry v. Brown, now Hollingsworth v. Perry that is scheduled to be heard by the United States Supreme Court in 15 days.
According to the Introduction, the Symposium editors sought to present the issue as a "time capsule," filled with "leading and emerging voices in the LGBTQ movement" as well as other scholars, "reflecting on Perry before the Court has its final say, before anyone gets the benefit of 20/20 hindsight." The comments were "first drafted before the Court had even granted certiorari" on the premise that Perry was already an important case.
The Symposium participants were asked to address three queries. Here are the questions and the participants:
The Symposium will also be available as a print issue, but meanwhile having its full contents available before the arguments makes it more valuable as a daily - - - or weekly - - - read.
Tuesday, February 26, 2013
In a 5-4 opinion this morning in Clapper v. Amnesty International USA, the Supreme Court rejected the standing of Amnesty International to challenge domestic surveillance under FISA, the Foreign Intelligence Surveillance Act of 1978 and its amendments, often called FAA (FISA Authorization Amendments).
The ruling puts an end to this challenge to the government's surveillance authority under FISA and ups the ante for any future challenge. The case says that a plaintiff can't bring a challenge by merely alleging likely surveillance; instead, a person has to show literal "certainly impending" surveillance or actual surveillance. Either way, the case is very tough. The problem is that a targeted individual has a real hard time showing that they will be or were subject to FISA surveillance--because it's secret. That's the whole point. But the Court said that the ruling doesn't completely insulate FISA from challenge: a person could challenge it after information obtained from surveillance leads to judicial or administrative proceedings; and an electronic communications service provider could challenge a government directive to assist in FISA-authorized surveillance. Still, even if today's ruling preserves those potential challenges, it almost certainly forecloses any pre-surveillance challenge by a target.
Recall that the Second Circuit held that Amnesty and the other organizations did have standing under Article III. The unanimous panel rejected the government's contentions that the challengers fears were speculative, writing that "importantly both the Executive and the Legislative branches of government believe that the FAA authorizes new types of surveillance, and have justified that new authorization as necessary to protecting the nation against attack, makes it extremely likely that such surveillance will occur."
The Supreme Court reversed. In an opinion by Justice Alito (joined by Chief Justice Roberts and Justices Scalia, Kennedy, and Thomas), the Court wrote that the plaintiffs' claimed injuries were simply too speculative--at each link in the chain:
- First, it's too speculative whether the government will imminently target communications to which the plaintiffs are parties (especially because the plaintiffs have no actual knowledge of the government's targeting practices under the FISA);
- But even if, it's too speculative whether the government would use its FISA authority (as opposed to some other surveillance authority) to listen in on the plaintiffs' communications;
- But even if, it's too speculative whether the FISA court would authorize surveillance on the plaintiffs; and
- Finally even if, it's too speculative whether the government would succeed in surveillance under this authority.
The Court also rejected the plaintiffs' claim that they suffered harm because they already took measures to protect themselves against surveillance. The Court said that plaintiffs can't sidestep the "imminent harm" requirement for standing (which they did not meet, as above) by claiming that they took steps to avoid a possible harm.
Justice Breyer dissented, joined by Justices Ginsburg, Sotomayor, and Kagan. Justice Breyer wrote that "there is a very high likelihood that Government, acting under the authority of [FISA], will intercept at least some of the [plaintiffs' communications.]" Dissent at 6 (emphasis in original). That's because the plaintiffs engage in communications that the government is authorized to intercept, there are strong motives to intercept, the government has intercepted similar communications in the past, and the government has the capacity to intercept. Justice Breyer wrote that this "very high likelihood" is enough: the Court has never used the requirement for "certainly impending" harm according to its literal definition; instead, the Court's used this language more flexibly.
It's not clear whether the Court's ruling necessarily signals a tightening of standing requirements outside this unique context--a challenge to a government action, when, because of the very nature of the action, the target can't know with certainty that he or she has been subject to the government action. Justice Breyer discusses Court cases (at length), including relatively recent cases, that employ a more flexible imminence requirement. The Court did nothing to question the continued vitality of those cases. Indeed, in footnote 5, page 16, Justice Alito wrote that to the extent that a "substantial risk" standard is different than a "clearly impending" standing for the imminence requirement, the plaintiffs here didn't meet either.
RR and SDS
Thursday, February 14, 2013
Writing in The New York Review of Books in 2011, the late Ronald Dworkin described two recently rendered United States Supreme Court cases as "embarrassingly bad." The cases were Arizona Christian School Tuition Organization v. Winn and the then-pending Arizona Free Enterprise Club PAC v. Bennett.
Both were 5-4 decisions and both continue to be controversial, although the Bennett is overshadowed by Citizens United.
Dworkin's article is worth a (re)read.
For those in a more reflective mood, the New York Review of Books has highlighted his 2011 essay "What is a Good Life?" Dworkin wrote:
We are charged to live well by the bare fact of our existence as self-conscious creatures with lives to lead. We are charged in the way we are charged by the value of anything entrusted to our care. It is important that we live well; not important just to us or to anyone else, but just important.
Dworkin's voice will be missed.
February 14, 2013 in Affirmative Action, Campaign Finance, Cases and Case Materials, Current Affairs, First Amendment, Religion, Speech, Standing, Supreme Court (US), Theory | Permalink | Comments (0) | TrackBack (0)
Friday, January 25, 2013
In her amicus brief in United States v Windsor, submitted at the request of the United States Supreme Court, ConLawProf Vicki Jackson (pictured) vigorously argues that BLAG lacks Article III standing. (For our previous discussions of standing in the DOMA and Prop 8 cases this week, see here and here).
Jackson explains that after Attorney General Holder notified Congress that the Executive would no longer enforce DOMA given its conclusion that the statute was unconstitutional,
the Bipartisan Legal Advisory Group of the House of Representatives (“BLAG”) voted 3-2 to intervene in the litigation to defend the constitutionality of DOMA. As its title suggests, BLAG is an “[a]dvisory” body, that is to be “consult[ed]” by the Speaker of the House, who gives “direction” to the General Counsel of the House, according to Rule II.8 of the Rules of the U.S. House of Representatives during all periods of this litigation.
[citations omitted]. The brief contends:
BLAG lacks standing for at least three reasons. First, BLAG has suffered no injury to a legally cognizable interest beyond the diffuse, generalized interests of all citizens that duly enacted and constitutional laws be enforced; no special prerogatives of BLAG, the House or Congress are threatened. Second, if there were any distinct legislative injury arising from the Executive Branch’s refusal to defend the constitutionality of this statute, that injury would afflict the Congress as a whole. A single house (or part thereof) does not have standing to assert that interest, and the Senate has not intervened. Third, BLAG is not the House, but an “[a]dvisory” body that lacked authority to represent the House when it moved to intervene, noticed its appeal to the Second Circuit, and petitioned this Court for certiorari.
Central to Jackson's argument is INS v. Chadha (1983). She stresses that Chadha concluded that “Congress [was] a proper party to defend [a] measure’s validity where both Houses, by resolution, had authorized intervention in the lawsuit,” and distinguishing the status of intervention in Windsor. Additionally, Jackson analogizes to the primary holding in Chadha on the merits:
In Chadha, this Court emphasized that, when a house of Congress acts, it presumptively acts in a legislative capacity, that is, with “the purpose and effect of altering the legal rights, duties, and relations of persons *** outside the Legislative Branch.” If BLAG’s intervention was a legislative act, it was plainly not done through the bicameralism and presentment procedure required for such acts. If, on the other hand, BLAG’s action was not a “legislative” act, it is hard to square with Chadha’s observation that, “when the Framers intended to authorize either House of Congress to act alone and outside of its prescribed bicameral legislative role, they narrowly and precisely defined the procedure for such action.”
The entire amicus brief casts considerable doubt on the status of BLAG as a proper party before the United States Supreme Court. It is worth a read!
Thursday, January 24, 2013
Suzanne Goldberg (pictured) argues that the proponents of Prop 8 and BLAG supporting DOMA have serious standing problems in her piece Article III Double-Dipping: Proposition 8’s Proponents, BLAG, and the Government’s Interest, available in draft on ssrn.
Recall yesterday we recommended Marty Lederman's extensive discussion of the Article III standing issues in Hollingsworth v. Perry (Perry v. Brown, "the Prop 8 case") and United States v Windsor ("the DOMA case"), it directed the parties to brief and argue the issues of Article III standing. This question of standing arises because both California, initially under Governor Schwarzenegger, then Governor Brown, and the United States, under the Obama Administration, have concluded that the constitutionality of the laws should not be defended (given their conclusion that the laws were unconstitutional). In the case of Prop 8, the trial proceeded with the intervenors, who lost. In the case of DOMA, the statute was defended by BLAG, the Bipartisan Legal Advisory Group of the United States House of Representatives, losing in the District Court and again at the Second Circuit.
Professor Goldberg contends that the Prop 8 proponents and BLAG are in a "Janus-faced" position: they purport to derive their Article III standing by asserting the governments’ interest in defending the challenged marriage laws, even as the governments in both cases, via their chief legal officers, have taken the position that excluding same-sex couples from marriage is unconstitutional. She argues that this inconsistency renders the concept of the government interest incoherent for Article III standing purposes. She further argues that the Prop 8 proponents and BLAG lack a direct stake in the litigation because they lack enforcement powers. If the Court were to reach the merits, it would essentially be issuing an advisory opinion.
Goldberg's essay is worth a read as a cogent argument for the lack of standing.
Wednesday, January 23, 2013
When the United States Supreme Court granted certiorari in Hollingsworth v. Perry (Perry v. Brown, "the Prop 8 case") and United States v Windsor ("the DOMA case"), it directed the parties to brief and argue the issues of Article III standing.
This question of standing arises because both California, initially under Governor Schwarzenegger, then Governor Brown, and the United States, under the Obama Administration, have concluded that the constitutionality of the laws should not be defended (given their conclusion that the laws were unconstitutional). In the case of Prop 8, the trial proceeded with the intervenors, who lost. In the case of DOMA, the statute was defended by BLAG, the Bipartisan Legal Advisory Group of the United States House of Representatives, losing in the District Court and again at the Second Circuit.
This is an unusual, if not unique, state of affairs. Usual discussions of Article III standing focus on the plaintiffs rather than losing defendants who are now appellants or petitioners.
All of the posts - - - seven! - - - are worth a read, but perhaps most interesting is Lederman's discussion of the outcome of any Court decision denying standing in the Prop 8 case.
Tuesday, January 22, 2013
The D.C. Circuit ruled today that a disabled veteran had standing to challenge in federal court the Drug Enforcement Agency's decision not to downgrade marijuana from a Schedule I drug. Even so, the court ruled against him on the merits. The ruling means that DEA's decision not to downgrade marijuana stands, and marijuana continues to be a Schedule I drug.
The case, Americans for Safe Access v. DEA, arose when the Coalition to Reschedule Cannabis petitioned the DEA to reschedule marijuana and downgrade it from a Schedule I drug. The DEA declined, and the petitioners sought APA review in federal court. Once in court, the petitioners' Article III standing became an issue, and the D.C. Circuit ordered argument on it.
The two-judge majority held that one petitioner, Michael Krawitz, a disabled veteran, had standing--and therefore that the case could move to the merits. Krawitz received pain management treatment from the VA. But as part of the program, the VA required him to sign a "Contract for Controlled Substance Prescription" that would have prohibited him from using medical marijuana. Krawitz refused to sign and turned to a non-VA physician in Oregon to obtain the referral forms required to participate in that state's medical marijuana program. Pursuant to VA policy, the VA did not pay for this. (VA policy prohibits VA providers from completing forms seeking recommendations or opinions regarding a vet's participation in a state marijuana program.)
The court ruled that Krawitz had standing--that he showed sufficient harm, causation, and redressability to get his foot in the door in federal court. Harm was easy: the court said that Krawitz's out-of-pocket expenses constituted sufficient harm. Causation and redressability were a little harder. The lynchpin for the court was that the DEA classification was the definitive classification for the federal government, including other agencies like the VA, creating a tight enough relationship between the DEA classification and the VA policy. Thus when the VA required Krawitz to sign that he'd forego medical marijuana and refused to pay for it, it did so because the DEA listed marijuana as a Schedule I drug; that's causation. And if Krawitz were to win on the merits--and get DEA to downgrade marijuana--the VA would follow suit and drop its requirement that pain management patients forego medical marijuana; that's redressability. All this means that the VA wasn't some random third-party intervenor breaking the causation and redressability chain between the DEA and Krawitz; instead, the VA policy was driven by the DEA classification. Here's how the court explained it:
Congress made clear when it passed the [Controlled Substances Act] that the [DEA's] scheduling decisions should serve as the federal government's "authoritative statement" on the legitimacy of particular narcotics and dangerous drugs. . . . When the DEA classified marijuana as a Schedule I drug, pursuant to its delegated authority under the CSA, it announced an authoritative value judgment that surely was meant to affect the policies of third-party federal agencies.
Unsurprisingly, the VA has heeded the DEA's judgment regarding marijuana, thus making the question of causation relatively easy in this case.
. . .
The only reason the VA cites for implementing [its policy on marijuana] is the classification of marijuana as a Schedule I drug. Therefore, were marijuana rescheduled to reflect its potential for medical use, the VA would have no expressed reason to retain [its policy] and VA clinicians would likely be subject to a non-discretionary duty to complete Krawitz's state medical marijuana forms.
Op. at 18-20.
(Judge Henderson wrote in dissent that Krawitz's standing arguments came too late.)
But even as the court ruled in favor of standing, it ruled against the petitioners on the merits. It held that the DEA's decision not to reclassify marijuana wasn't arbitrary and capricious--in particular, that substantial evidence supported the agency's determination that studies showing a "currently accepted medical use" do not exist.
Thursday, January 3, 2013
The Supreme Court of the United States has updated its website to include a page entitled "Filings in the Defense of Marriage Act and California’s Proposition 8 cases," or "DOMPRP8."
The disclaimer is worth a look:
Disclaimer: We have provided a link to this site because it has information that may be of interest to our users. The Supreme Court of the United States does not necessarily endorse the views expressed or the facts presented on this site.
Monday, December 31, 2012
The Seventh Circuit ruled last week in Richards v. NLRB that the petitioners lacked standing to challenge President Obama's 2012 recess appointments to the NLRB. The ruling means that this challenge to the recess appointments is dismissed. We posted on another challenge, in the D.C. District, with links to other posts on those recess appointments, here.
The Seventh Circuit case arose out of a dispute over unions' rule that required non-union employees to file an annual objection to opt out of paying dues for the unions' non-collective-bargaining activities. (Non-union members that are part of a union's collective bargaining unit can be charged dues for a union's collective bargaining, but they cannot be required to pay dues for non-collective-bargaining activities, like political activities.) Non-members filed unfair labor practice charges against the unions, arguing that the annual renewal requirement violated the unions' duty of fair representation by placing an undue burden on objectors. They sought an order striking the policies and a refund for non-members who at one time objected but failed to renew their objections. The petitioners did not seek a refund for themselves, because they renewed their objections every year.
The NLRB granted the order striking the annual renewal requirement, but denied the refund for other non-members.
While the case was pending at the NLRB (on the petitioners' motion for reconsideration), on January 4, 2012, President Obama made three recess appointments to the Board, without which the Board would have lacked a quorum. The NLRB later denied the petitioners' motion for reconsideration.
The petitioners argued that President Obama's appointments were invalid, and therefore that the NLRB's action on reconsideration was invalid. They said that the Recess Appointments Clause allowed the President to make recess appointments only during intersessions of Congress (any recess between the two annual sessions of Congress, generally starting in December and ending on January 3, when the next session starts), not intrasessions of Congress (any recess during an annual session of Congress). They also said that the Senate didn't consider itself in recess when President Obama made the appointments. (It was in pro forma sessions.)
The Seventh Circuit dismissed the case for lack of standing and didn't reach the merits. The court ruled that the plaintiffs already got all the relief they asked for and all they qualified for--that they suffered no injuries from NLRB decisions that could be remedied on appeal. In particular, the court said that the NLRB already struck the annual renewal requirement, and that the petitioners didn't qualify for a refund because they renewed their objections annually and didn't pay the non-collective-bargaining assessment.
The court also ruled that the plaintiffs didn't have standing to seek postage fees they paid for their annual objection renewals, because they didn't raise this claim at the NLRB.
December 31, 2012 in Appointment and Removal Powers, Cases and Case Materials, Executive Authority, Jurisdiction of Federal Courts, News, Opinion Analysis, Separation of Powers, Standing | Permalink | Comments (0) | TrackBack (0)
Sunday, December 23, 2012
Judge Emmet G. Sullivan (D.D.C.) on Friday dismissed Common Cause v. Biden, the legal challenge to the Senate's filibuster rule. Recall that Judge Sullivan heard oral arguments in the case earlier this month, and that standing was front and center. it wasn't surprising then that Judge Sullivan's ruling on Friday turned on standing, and on separation of powers.
The ruling ends the case, unless and until the plaintiffs appeal. It seems unlikely that the D.C. Circuit would rule differently. In any event, if the Senate Democrats succeed in reforming the filibuster at the beginning of the next Congress, the case may become moot.
Judge Sullivan ruled that the plaintiffs lacked standing. As to the House members: he wrote that he was "not persuaded that their alleged injury--vote nullifcation--falls into a narrow exception enunciated by the Supreme Court in Raines v. Byrd." Op. at 2. As to the other plaintiffs: they failed to "demonstrate that this Court can do anything to remedy the alleged harm they have suffered: the inability to take advantage of the opportunity to benefit from proposed legislation [the DREAM Act] that was never debated, let alone enacted." Op. at 2.
On separation of powers, Judge Sullivan said that Article I reserves to each House the power to determine its own rules, and there's nothing in the Constitution constraining the Senate from allowing debate to continue absent a super-majority vote. "[A]bsent a rule's violation of an express constraint in the Constitution or an individual's fundamental rights, the internal proceedings of the Legislative Branch are beyond the jurisdiction of this Court." Op. at 3.
December 23, 2012 in Cases and Case Materials, Congressional Authority, Courts and Judging, Jurisdiction of Federal Courts, News, Opinion Analysis, Political Question Doctrine, Separation of Powers, Standing | Permalink | Comments (0) | TrackBack (0)
Thursday, December 13, 2012
The Court's grant of certiorari last week in two same sex marriage cases included the question of standing in both.
The standing issues atypically arise not from the original plaintiffs' qualifications under Article III of the Constitution, but flow from the governments' decision not to defend the constitutionality of the challenged government action: California's refusal to defend Proposition 8 in Perry v. Brown and the Obama Administration's decision not to defend DOMA in Windsor (and in previous cases beginning in February 2011).
The inimitable Linda Greenhouse shares her analysis of the standing issues, admitting she is fascinating by the "procedural game the Supreme Court is playing in the same-sex marriage cases."
Greenhouse writes in the NYT Opinionator that her original thought was that the Court could be using "the jurisdictional issue as a kind of safety valve for a deeply polarized court."
But on reflection, that theory doesn’t really make sense, because a finding of no jurisdiction under these circumstances would call into question the court’s ability to deal with other instances of changed government positions, and would be inconsistent with the action the court took just last week in the prison immunity case. Further, a finding of no jurisdiction would amount to a huge grant of power to the executive branch at the expense of Congress, enabling the president to cut off further judicial review any time a law that he never liked in the first place is declared unconstitutional by a lower court. While executive power certainly has its fans on the court, including Chief Justice Roberts and Justice Antonin Scalia, I’d be surprised if that sweeping proposition could capture five votes.
Greenhouse then provides some her own hypothesis - - - and it is certainly worth a read.
Monday, December 10, 2012
Judge Emmet G. Sullivan (D.D.C.) heard oral arguments on Monday on the defendant's motion to dismiss in Common Cause v. Biden, the case challenging the Senate's filibuster rule. We posted on the case back in May, when it was filed. Roll Call summarized the arguments here. Common Cause has a case resource page here.
Recall that Common Cause filed the case along with four Democratic House members arguing that the Senate's cloture rule, Rule XXII, which requires 60 votes to end debate on a matter, violates the constitutional background principle of majority rule. Common Cause argued that the Senate filibustered the DREAM Act, harming certain aliens. See our May post for more on the particular arguments and for background on the filibuster.
According to Roll Call, the arguments today focused on standing: whether the House Dems had it (based on the Senate holding up their favored legislation on filibusters), and whether Common Cause's clients had it (based on their claim that the Senate would have passed the DREAM Act but for the filibuster). Roll Call reports that Judge Sullivan was deeply engaged and asked for further briefing because the lawsuit raised "complicated issues." But even if the plaintiffs get past standing, they'll certainly face other hurdles before Judge Sullivan will ever rule on the merits--the political question doctrine and the Senate's authority to determine its own rules, just to name a couple. (Anticipating these objections, Common Cause says that if a court can review an Act passed by the Senate, it can certainly review a Senate rule.)
The oral arguments come in the midst of increasing talk of filibuster reform in the 113th Congress. We covered the issues and linked to resources when there was similar talk at the beginning of the 112th Congress.
Tuesday, December 4, 2012
California's SB 1172, slated to become effective January 1 and prohibiting licensed therapists from performing what is known variously as sexual conversion therapy, reparative therapy, or sexual orientation change efforts (SOCE) on minors under the age of 18. Senior District Judge William Shubb, in an opinion issued late yesterday in Welch v. Brown, has issued a temporary injunction of the statute.
Considering the claims of two therapists and one potential therapist who had undergone SOCE as an adult, Judge Shubb first held that the plaintiffs did not have third party standing to assert the claims of minors or parents. As to the therapists, however, Judge Shubb held that their First Amendment claims were entitled to strict scrutiny which they were unlikely to survive on the merits.
In so doing, Judge Shubb rejected the argument that lesser standards under the First Amendment should apply given that the regulation was directed at a profession. Additionally, the judge rejected the argument that the regulation was directed at conduct rather than speech, holding that because "at least some forms" of SOCE involve "talk therapy," speech was the central issue.
Supporting the conclusion that strict scrutiny was the correct standard, Judge Shubb focused on the legislative history of SB1172: the "Legislature’s findings and declarations convey a consistent and unequivocal message that the Legislature found that SOCE is ineffective and harmful."
Below is a video of the legislative floor statement of the bill's sponsor, Senator Ted Lieu, and the subsequent vote:
For Judge Shubb, because "a mental health provider’s pursuit of SOCE is guided by the provider’s or patient’s views of homosexuality, it is difficult, if not impossible, to view the conduct of performing SOCE as anything but integrally intertwined with viewpoints, messages, and expression about homosexuality." Thus, Judge Shubb concluded that the statute was undoubtedly subject to strict scrutiny.
In addition to Ninth Circuit precedent, Judge Shubb relied heavily upon the Supreme Court's 2011 decision in Brown v. Entertainment Merchants Ass’n, finding unconstitutional California's violent video game sale to minors prohibition. Quoting from Entertainment Merchants, Judge Shubb stressed that SB1172 cannot survive strict scrutiny "unless the state demonstrates an “'actual problem’ in need of solving” and “a direct causal link” between SOCE and harm to minors. While protecting minors was a compelling state interest, Judge Shubb faulted the legislative findings:
evidence that SOCE “may” cause harm to minors based on questionable and scientifically incomplete studies that may not have included minors is unlikely to satisfy the demands of strict scrutiny.
Judge Shubb also faulted the "underinclusiveness" of the statutory scheme:
Here, SB 1172 prohibits only mental health providers from engaging in SOCE and, as defendants have pointed out, unlicensed individuals who do not qualify as “mental health providers” under the bill can engage in SOCE. If SOCE is harmful and ineffective, the harm minors will endure at the hands of unlicensed individuals performing SOCE is equal, if not greater,than the harm they would endure from mental health providers performing SOCE. In fact, the California Legislature has previously “recognized the actual and potential consumer harm that can result from the unlicensed, unqualified or incompetent practice of psychology.” [citation omitted] The limited scope of SB 1172 therefore suggests that it is likely underinclusive in its application only to mental health providers.
Given Judge Shubb's reasoning, it is likely that he will issue a permanent injunction and equally likely that the decision will be appealed to the Ninth Circuit.
Sunday, November 18, 2012
Judge Reggie Walton (D.D.C.) on Friday granted plaintiffs a temporary injunction in Tyndale House Publishers, Inc. v. Sebelius stopping the Secretary from enforcing HHS regs under the Affordable Care Act that require health insurance plans to provide contraception coverage against a self-insured Christian publishing house. Judge Walton wrote that the plaintiffs were likely to succeed on their Religious Freedom Restoration Act claim and that they met other requirements for a temporary injunction. The ruling, should it stand, paves the way for self-insured plaintiff-corporations to challenge the contraception requirement under the RFRA.
Tyndale House Publishers is a small Christian publishing house that operates under a Christian "statement of belief and policy" outlining its religious beliefs. It doesn't offer its employees an outside health insurance plan; instead, it's self-insured and thus pays directly for its employees' health benefits. Mark Taylor, the other named plaintiff, is Tyndale's president and CEO.
The plaintiffs balked at HHS regs, enacted under the ACA, that, with certain exemptions for religious organizations, require employers to provide contraception as part of their employee health insurance plans. Importantly, they complained only about "drugs (e.g., Plan B, ella) or devices (e.g., intrauterine devices) that can cause the demise of an already conceived/fertilized human embryo." They filed suit, arguing that the regs violated the RFRA; the Free Exercise, Establishment, and Free Speech Clauses of the First Amendment; the Fifth Amendment Due Process Clause; and the Administrative Procedures Act.
The RFRA forbids the government from "substantially burden[ing] a person's exercise of religion even if the burden results from a rule of general applicability" unless the government can "demonstrate that application of the burden to the person (1) is in furtherance of a compelling government interest; and (2) is the least restrictive means of furthering that compelling government interest." 42 U.S.C. Sec. 2000bb-1(a), (b).
Judge Walton first concluded that the plaintiffs had standing. He wrote that Tyndale had standing under EEOC v. Townley Eng'g & Mfg. Co., 859 F.2d 610 (9th Cir. 1988), which held that a corporation has standing to assert the free exercise rights of its owners. Alternatively, Tyndale had third-party standing to assert its primary owner's free exercise rights.
As to the substance, Judge Walton wrote that Tyndale showed a "substantial burden," because
the contraceptive coverage mandate similarly places the plaintiffs in the untenable position of choosing either to violate their religious beliefs by providing coverage of the contraceptives at issue or to subject their business to the continual risk of the imposition of enormous penalties for its noncompliance.
Op. at 22. Judge Walton distinguished O'Brien v. HHS (E.D. Mo. 2012) (holding that the plaintiff did not suffer a substantial burden, because it provided employee health insurance through a group plan), because here the self-insured plaintiff, Tyndale, would pay directly for its employees' contraception (and not indirectly, through a group plan). Judge Walton explained:
The court dismissed the plaintiffs' RFRA claim [in O'Brien], holding that the plaintiffs had failed to show that the contraceptive coverage mandate substantially burdened their religious exercise. Describing the burden at issue as the "funds, which plaintiffs will contribute to a group health plan, [that] might, after a series of independent decisions by health care providers and patients covered by [the company's] plan, subsidize someone else's participation in an activity that is condemned by plaintiffs' religion," the court reasoned that the burden on the plaintiffs' religious exercise was simply too attenuated to qualify as "substantial." . . .
Here, the plaintiffs provide direct coverage to Tyndale employees through a self-insured plan in which "Tyndale acts as its own insurer." This difference in the manner in which coverage is provided is significant because while the company in O'Brien contributes to a health insurance plan which ultimately pays for the services used by the plan participants, Tyndale itself directly pays for the health care services used by its plan participants, thereby removing one of the "degrees" of separation that the court deemed relevant in O'Brien.
Op. at 23-24.
Judge Walton also concluded that the government's compelling interests in promoting public health and providing employed women with access to health care on par with employed men wouldn't be undermined by exempting Tyndale (and therefore weren't necessary here), because the government already exempts a number of other employers. He noted that Tyndale objected only to certain kinds of contraception--Plan B, ella, and intrauterine devices--and provided some other contraceptive coverage through its health plan, and that requiring Tyndale to provide the full range of contraceptives wasn't necessary to achieve public health and equality between female and male employees.
Monday, November 5, 2012
A three-judge panel of the D.C. Circuit ruled in In re Navy Chaplaincy that Navy chaplains have standing to lodge their Establishment Clause claims against the Navy's chaplain promotion policies. The court also ruled that the lower court issued insufficient factual findings for it to review the chaplains' likelihood of success on the merits in evaluating their motion for a preliminary injunction. The court thus reversed the lower court ruling and remanded for further findings. In short, the ruling means that the case will go back to the lower court for additional findings related to one of the chaplains' Establishment Clause claims on their motion for a preliminary injunction.
The chaplains argued that Navy policies violated the Establishment Clause in two ways. First, they argued that the Navy improperly delegated government authority over promotion decisions to a religious entity by allowing chaplains themselves to make promotion decisions without sufficient, secular standards. Next, they argued that the Navy's promotion procedure--small selection boards, secret votes, and the appointment of the Chief of Chaplains as president--have resulted in denominational discrimination and, if not, will likely result in such discrimination in the future.
The district court ruled that the chaplains lacked standing (because they alleged future speculative harms, not imminent harms) and that they were unlikely to succeed on either substantive claim. It thus dismissed the case and alternatively rejected the chaplains' motion for a preliminary injunction.
The D.C. Circuit reversed. It ruled that the chaplains had standing, because they challenged actual policies that the Navy planned to use in the future, and because at least some chaplains will probably appear before selection boards in the near future. Comparing the case to City of Los Angeles v. Lyons the court wrote, "Unlike in other cases, like Lyons, where plaintiffs speculated about the very existence of the unwritten discriminatory practices at issue, here the Navy acknowledges that the challenged policies and procedures not only exist, but will continue to govern the conduct of future selection boards." Op. at 9.
The court agreed with the district court that the chaplains were unlikely to succeed on their first substantive claim--the one about delegation of authority to a religious entity without standards. (The court wrote that there were standards, making this case a "far cry from the 'standardless' delegation scheme at issue in [Larkin v. Grendel's Den, Inc.]." Op. at 14. But the court said that the lower court didn't issue sufficient facts for it to evaluate the second claim--the one about the likely discriminatory effects of the promotion procedure. It thus remanded the case for findings on this claim.
Monday, October 29, 2012
The Supreme Court heard oral arguments today in Clapper v. Amnesty International, the case testing the plaintiffs' standing to challenge the government's vastly expanded surveillance authority under the FISA Amendments Act, or the FAA. We posted on the lower court ruling that a group of attorneys, journalists, and human rights organizations had standing to challenge the FAA here.
The plaintiffs always faced a unique standing problem in challenging the FAA: The very nature of government surveillance says that those surveilled cannot know that they've been surveilled, or harmed, especially when the real targets of the surveillance are the plaintiffs' overseas clients and contacts (and not immediately the plaintiffs themselves). As a result, the plaintiffs had to argue two kinds of harm to satisfy standing requirements: (1) that they've had to take current measures to ensure against FAA surveillance and (2) that their communications are imminently going to be surveilled (given the nature of them).
The government, on the other hand, argued that any harm is purely speculative and the result of the plaintiffs' own doing (and not the authority under the FAA), and that any harm could have occurred, anyway, but under a different surveillance authority. (This last argument says that the plaintiffs' harm isn't sufficiently traceable to the FAA, and that a judgment on the FAA wouldn't redress the plaintiffs' harm. Causation and redressibility are two other requirements for standing, in addition to harm.)
The Court seemed skeptical of the government's claims at arguments today. Justices Ginsburg, Breyer, Sotomayor, and Kagan grilled SG Verrilli on his arguments, and Justices Sotomayor and Kagan seemed especially troubled that the government's position would leave the plaintiffs without any effective way to challenge surveillance under the FAA. Chief Justice Roberts and Justice Scalia chimed in with concerns about the government's argument that it might conduct surveillance of the plaintiffs' communications under a different authority, leaving the plaintiffs unable to show causation or redressibility. (It wasn't clear that their concerns with the government's position extended beyond that particular argument, though.) And finally Justice Kennedy seemed especially troubled with the government's position on the attorney-plaintiffs: the government said that any decision by the attorney-plaintiffs not to communicate with overseas clients for fear of surveillance was caused by rules of professional responsibility, and not by the threat of FAA surveillance. (Justice Kennedy's concern is one to watch. This harm--attorney-plaintiffs curtailing communication with clients for fear of surveillance--is the most acute and well defined harm in the case. It's also one that will resonate best with this group of nine lawyers. And it's important that Justice Kennedy raised it: He may provide the key vote.)
In all, the government's argument came across as overly formalistic, especially considering the very high stakes for the plaintiffs. The Court's questions seemed to highlight that.
On the other side, there was some back-and-forth on just how certain government surveillance must be to create a sufficiently likely harm--"certainly impending," or "substantial risk." Chief Justice Roberts pushed for the former (and higher) standard, while Justice Kennedy pointed out that in those cases where we knew the government act was occurring (as here) the standard was the lower "substantial risk." Justice Alito asked whether the plaintiffs might manufacture their own standing (and thus work an end-run around a higher "certainly impending" standard) by alleging current preventative measures as the harm--just as the plaintiffs did here. As to the threat of surveillance and the plaintiffs' precautions against that threat, Chief Justice Roberts wondered whether that wasn't a harm in every case, e.g., in an ordinary criminal case when a criminal defense attorney seeks to get information from his or her client. (The attorney wouldn't use e-mail or phone; he or she would talk in person.) Finally, Justice Scalia asked whether the FISA court didn't serve as a check on Fourth Amendment violations.
If the government's argument was overly formalistic, the plaintiffs' claimed harms might have seemed too vague to some on the Court, especially if the Court adopts the higher "certainly impending" standard for the plaintiffs' claimed future harms.
Arguments today revealed what we already knew about this case: It'll be close. But on balance, the Court seemed to favor standing.
Thursday, October 4, 2012
The Eighth Circuit ruled in Kinder v. Geithner that a private individual and Missouri's Lieutenant Governor (acting in his personal capacity) lacked standing to challenge the universal coverage provision of the Affordable Care Act.
The Supreme Court, of course, settled the issue last summer. But that didn't stop the plaintiffs here (who filed before the Court ruled)--even if they couldn't identify the relief they sought (after the Court ruled). The Eighth Circuit side-stepped these problems, though, and ruled instead that the plaintiffs lacked standing. The ruling means that the case is dismissed.
One plaintiff, Samantha Hill, wrote in her complaint that the ACA forced her to purchase a health plan that she didn't want. In particular, Hill claimed that she wanted to buy only a high-deductible, "catastrophic" health plan, but that the ACA allowed a person to buy such a plan only if that person were under 30 years old and certified that his or her premiums amounted to more than eight percent of his or her household income.
The court ruled that Hill misread the statute. The ACA allows a person under 30 or a person whose premiums amount to more than eight percent of household income to purchase a catastrophic plan. Hill was under 30, and the Act therefore allowed her to buy a catastrophic plan. No injury.
(The court rejected Hill's several creative readings of her own complaint to get around this result. In the end, it seems, one of two things happened: somebody mis-read an "and" for an "or" in the ACA; or somebody wrote a pretty sloppy complaint.)
The court rejected LG Morris's claim, because he never said he'd be affected by the universal coverage requirement: he's already insured. No injury.
If the case weren't dismissed for lack of standing, it obviously would have been dismissed on the merits, after the Court's ruling in NFIB v. Sebelius.
Tuesday, September 11, 2012
In its opinion in McCormack v. Hiedeman today, a panel of the Ninth Circuit considered the constitutionality of Idaho's "unlawful abortion" statutes, making it a felony for any woman to undergo an abortion in a manner not authorized by statute. McCormack had been charged with a felony by the prosecutor Mark Hiedeman based on her procurement of abortion "medications" over the internet. While a state magistrate had dismissed the charge without prejudice, the prosecutor had not determined whether or not to re-file a criminal complaint. McCormack brought an action in the federal district court challenging the constitutionality of the Idaho statutes. The district judge granted a preliminary injunction against the statutes' enforcement.
At the heart of the constitutional inquiry was whether or not a pregnant woman could be constitutionally held criminally liable under an abortion statute. The prosecutor essentially argued that criminalizing nonphysicians performing abortions is consistent with Roe v. Wade and Planned Parenthood v. Casey.
The Ninth Circuit, however, agreed with the district judge that imposing criminal sanctions on a pregnant woman imposes an "undue burden" under Casey. The "undue burden" resulted because the statute required the woman to police the abortion providers' actions or risk criminal sanctions herself:
If a woman terminates her pregnancy during the first trimester but fails to ask the physician whether the office has made “satisfactory arrangements with one or more acute care hospitals within reasonable proximity thereof providing for the prompt availability of hospital care as may be required due to complications or emergencies that might arise,” she would be subject to a felony charge if the physician has not made such arrangements. Idaho Code § 18-608(1). If a woman finds a doctor who provides abor- tions during the second trimester of a woman’s pregnancy, but the doctor fails to tell the pregnant woman that the abortion will be performed in a clinic as opposed to a hospital, the pregnant woman would be subject to felony charges. Idaho Code § 18-608(2). Or, as is the case here, if a woman elects to take physician prescribed pills obtained over the internet to end her pregnancy, which is not authorized by statute, she is subject to felony charges. Idaho Code §§18-608(1)-18- 608(3).
The court also found McCormack's economic situation and the lack of abortion providers in her area to contribute to the "undue burden."
The Ninth Circuit panel found McCormack had standing, but narrowed the district court's injunctive relief to apply only to McCormack since there had been no class certification.
For pregnant women facing prosecutions under abortion statutes, the Ninth Circuit's opinion is an important and persuasive statement on the unconstitutionality of criminal sanctions.
[image: The Prisoner, artist unknown, circa 1907, via]