Friday, March 17, 2017
President Trump's EO on sanctuary cities says that "the Attorney General and the Secretary . . . shall ensure that jurisdictions that willfully refuse to comply with 8 U.S.C. Sec. 1373 (sanctuary jurisdiction) are not eligible to receive Federal grants, except as deemed necessary for law enforcement purposes by the Attorney General or the Secretary."
The provision is almost certainly over-broad, in that it conditions apparently all "Federal grants" on compliance with Section 1373, running afoul of both the relatedness prong and the pressure-into-compulsion test for conditioned federal spending.
But is 1373 itself unconstitutional? In particular, does 1373 violate the non-commandeering principle?
Section 1373 reads:
(a) Notwithstanding any other provision of Federal, State, or local law, a Federal, State, or local government entity or official may not prohibit, or in any way restrict, any government entity or official from sending to, or receiving from, the Immigration and Naturalization Service information regarding the citizenship or immigration status, lawful or unlawful, of any individual.
(b) Notwithstanding any other provision of Federal, State, or local law, no person or agency may prohibit, or in any way restrict, a Federal, State, or local government entity from doing any of the following with respect to information regarding the immigration status, lawful or unlawful, or any individual:
(1) Sending such information to, or requesting or receiving such information from, the Immigration and Naturalization Service.
(2) Maintaining such information.
(3) Exchanging such information with any other Federal, State, or local government entity.
(c) The Immigration and Naturalization Service shall respond to an inquiry by a Federal, State, or local government agency, seeking to verify or ascertain the citizenship or immigration status of any individual within the jurisdiction of the agency for any purpose authorized by law, by providing the requested verification or status information.
The provision--which prohibits action (it prohibits prohibitions) by state and local governments, but doesn't require action--is a pretty transparent attempt to try to work around the anti-commandeering principle. (Doing the same thing directly--by requiring state and local officers to report--would obviously violate the anti-commandeering principle.) Does that save it from commandeering?
Jane Chong, in a thoughtful post over at Lawfare, says maybe--or at least "the answer is not as open-and-shut as the experts insist it is."
If she's right--and she makes a good argument--maybe the problem isn't with transparent work-arounds like 1373. Maybe, instead, the problem is with the anti-commandeering principle itself. In light of 1373 (and a similar provision in the Professional and Amateur Sports Protection Act of 1992, which Chong discusses), maybe "anti-commandeering" suffers from the same problem that another Tenth Amendment principle--"areas of traditional government functions"--suffered from between National League of Cities v. Usery and Garcia v. San Antonio Metropolitan Transit Authority: It's unworkable. And maybe the solution is the same as in Garcia: Abandon it, and leave the issue to the political process. (After all, there's nothing in the Tenth Amendment that says anything about commandeering.)
Saturday, March 4, 2017
In his opinion in LaCroix v. Junior, Florida state judge Milton Hirsch confronted the constitutionality of the Executive Order threatening to revoke federal funding for sanctuary cities which as we previously predicted "overreaches."
The judge granted the petition for writ of habeas corpus by a man "incarcerated in the Miami-Dade County correctional system." Although there were no state charges against him, LaCroix had "no prospect of imminent release," because as "often happens" Immigration and Customs Enforcement (“ICE”), the federal agency "responsible for the deportation of those whose presence in this country is unlawful, had filed a detainer or lodged a request with the corrections department, seeking to have the department retain an inmate whom would otherwise be released, because ICE has a basis to inquire further as to the status of the person sought.
Judge Hirsch identified "two inequities" of this practice. First, until ICE takes custody of the person, the county must "house, oversee, and control" people in which it has no ongoing interest and to do so at county expense. Second, "it results in the continued incarceration in county jails of persons neither charged with, nor sentenced for violating, any state or county law, and whose ongoing incarceration by the county is therefore difficult to justify."
Judge Hirsch's opinion outlines the controversies surrounding the county's changing practices, noting that while there had been county detention on behalf of ICE, in 2013 the Dade County Commission changed its policy to effectively ban county jails from honoring ICE requests. However, after the President "threatened to cut federal grants for any counties or cities that don’t cooperate fully with Immigration and Customs Enforcement," Miami-Dade Mayor Carlos Gimenez immediately reversed county policy and ordered county jails to comply with ICE requests.
Judge Hirsch finds that the federal government cannot constrict or commandeer state officials largely relying on Printz v. United States (1997), which held the Brady Handgun Violence Prevention Act's requirement of background checks by state officials unconstitutional pursuant to the Tenth Amendment. Quoting from Justice Scalia's opinion for the Court in Printz, Judge Hirsch concluded that the present situation was "actually easier" to decide: Printz involved something that local law enforcement is often called to do as a matter of local law, but here
however, we deal with an area of the law – the regulation of immigration and deportation – reserved exclusively to the federal government. See U.S. Const. Art. I § 8, clause 4. The Department does not, and as a matter of constitutional law cannot, act in this federal bailiwick. According to its “mission statement,” see http://www.miamidade.gov/corrections/about-corrections.asp, the Department, “serves our community by providing safe, secure and humane detention of individuals in our custody while preparing them for a successful return to the community.” (Emphasis added.) This is wholly unrelated, arguably antithetical, to the mission of ICE, see https://www.ice.gov/overview, which is “to protect America from the cross-border crime and illegal immigration that threaten national security and public safety.” Yet by operation of the recent change in county policy, and the presidential order upon which it is based, county correctional officers and county correctional facilities are made appendages of ICE, obliged to imprison and maintain Petitioner for ICE –
Petitioner and others, perhaps many others, similarly circumstanced. If the use made of local governmental resources in Printz was constitutionally proscribed, the use made of local governmental resources here is surely constitutionally proscribed.
Moreover, although LaCroix is not a government official, the Tenth Amendment's reservation of rights to "the people" is one that can be raised by an individual, as the Court unanimously held in Bond v. United States (2011). (Recall that Carol Anne Bond was similarly successful in her second trip to the United States Supreme Court when it held that the federal government had essentially overreached in prosecuting her for violation using "chemical weapons.")
Judge Hirsch's analysis of Tenth Amendment precedent is on solid ground. The opinion is carefully crafted and closely reasoned. But Judge Hirsch does evoke the larger political contexts in at least two respects.
First, Judge Hirsch raises and discounts the term "sanctuary city." He writes that although the term has a "Biblical sound to it" (explaining in a footnote the more precise Biblical meaning), and thus has some rhetorical force,
Miami is not and never was a “sanctuary city,” and the issue raised by the petition at bar has nothing to do with affording “sanctuary” to those unlawfully in this country. It has everything to do with the separation of powers between the state and federal governments as reflected in the Tenth Amendment to, and in the very structure of, the United States Constitution.
Nevertheless, near the end of the opinion, Judge Hirsch repeats his conclusion that "Miami is not, and has never been, a sanctuary city," and then adds:"But America is, and has always been, a sanctuary country." He quotes one of his own previous opinions and includes a footnote quoting Emma Lazarus, The New Colossus and discussing the dedication of the Statue of Liberty.
Second, Judge Hirsch raises the specter of unbridled Executive power. He notes that although the "presidential edict at issue here seeks to bring about the conscription of the corrections department, and employs powerful financial pressure to do so," the Spending Power is vested in Congress under Art. I §8 cl. 1 rather than the Executive. Additionally:
No doubt the limitations imposed by the Tenth Amendment, like so many limitations imposed by the Constitution, are a source of frustration to those who dream of wielding power in unprecedented ways or to unprecedented degrees. But America was not made for those who dream of power. America was made for those with the power to dream.
It does not seem too far of a stretch to read this as a critique of the current President.
The case is sure to be appealed. But whatever happens on appeal in this case, there is similar litigation throughout the nation, including the lawsuit by San Franscisco.
Tuesday, January 31, 2017
San Francisco filed suit today against President Trump over his executive order stripping sanctuary cities of federal grants.
San Francisco argues that the EO violates the anti-commandeering rule, that its funding provision turns persuasion into compulsion, and that the funding threat includes federal money that has nothing to do with immigration enforcement--all in violation of federalism principles in the Tenth Amendment.
Recall the EO's federal-funding-for-compliance provision:
the Attorney General and the Secretary, in their discretion and to the extent consistent with law, shall ensure that jurisdictions that willfully refuse to comply with 8 U.S.C. Sec. 1371 (sanctuary jurisdictions) are not eligible to receive Federal grants, except as deemed necessary for law enforcement purposes by the Attorney General or the Secretary.
8 U.S.C. Sec. 1373(a), in turn, prohibits local governments from "sending to, or receiving from, [federal immigration officials] information regarding the citizenship or immigration status . . . of any individual."
As an initial matter, San Francisco argues that it actually complies with 1373, because it doesn't prohibit officials from communicating with the feds regarding "citizenship or immigration status," even though it restricts communications on other matters.
The City goes on to argue that 1373, taken together with the EO, commandeers state and local governments in violation of the anti-commandeering rule, because it regulates "States in their sovereign capacity," "limit[s] state authority to regulate internal affairs and determine the duties and responsibilities of state employees," and "ultimately forc[es] States to allow their employees to use state time and state resources to assist in the enforcement of federal statutes regulating private individuals." Moreover, the EO "commandeers state and local governments, violating the Tenth Amendment to the United States Constitution by, inter alia, compelling them to enforce a federal program by imprisoning individuals subject to removal at the request of the Federal government when those individuals would otherwise be released from custody."
As to preenforcement review, San Francisco argues that it "faces the imminent loss of federal funds and impending enforcement action if it does not capitulate to the President's demand that it help enforce federal immigration law. At least one jurisdiction has already succumbed to this presidential fiat." (The complaint also outlines the many other harms the city says it suffers, and will suffer, under the EO.)
Wednesday, January 25, 2017
President Trump's EO today threatening to revoke federal funding for sanctuary cities runs right up against NFIB v. Sebelius, the Supreme Court's Obamacare decision, penned by Chief Justice John Roberts. In other words: It is unconstitutional.
Recall that the Court in NFIB ruled that Obamacare's Medicaid expansion violated federalism principles, because Obamacare threatened a state that declined to expand Medicaid with a potential loss of all federal Medicaid funding. Chief Justice Roberts wrote that the provision was "a gun to the head" of states, and that the threatened loss of Medicaid funding "is economic dragooning that leaves the States with no real option but to acquiesce in the Medicaid expansion." The Court "saved" the provision, however, by ruling that the federal government could withhold the additional Obamacare funding for Medicaid expansion from any state that declined to expand Medicaid under Obamacare. It just couldn't withhold all Medicaid funding.
Enter Trump's policy on sanctuary cities. President Trump's EO says that it's the policy of Executive Branch to "[e]nsure that jurisdictions that fail to comply with applicable Federal law do not receive Federal funds, except as mandated by law." So far, so good, if NFIB is part of law, as it is.
But the EO goes on to say that "the Attorney General and the Secretary . . . shall ensure that jurisdictions that willfully refuse to comply with 8 U.S.C. Sec. 1373 (sanctuary jurisdictions) are not eligible to receive Federal grants, except as deemed necessary for law enforcement purposes by the Attorney General or the Secretary."
This goes much farther than Obamacare's Medicaid expansion: The EO threatens to revoke all federal funding to a jurisdiction, with just a small caveat, and with no overriding "except as mandated by law" clause.
If Obamacare was a "gun to the head," this is much more. (Maybe a nuclear bomb to the head?) Moreover, most of the federal funding at stake has nothing to do with immigration, pretty clearly violating the "germaneness" or "relatedness" requirement from South Dakota v. Dole.
Whatever one thinks about NFIB, or even the animating federalism principles that the Court applied, President Trump's EO goes much, much farther. And whatever one thinks about sanctuary cities, President Trump's approach is quite clearly out of constitutional bounds.
Monday, November 28, 2016
Judge Christopher R. Cooper (D.D.C.) today rebuffed state arguments that a new Treasury rule governing state escheat claims of title and for payment of U.S. Treasury bonds did not violate the Constitution. The ruling ends this case (unless and until appealed) and means that the Treasury rule, designed to ensure that state judgments on the abandonment and ownership of Treasury bonds are accurate, stays in place.
The ruling is a blow to states like Kansas that sought to make it easier to show that a Treasury bond was abandoned, and that the state owned it, and therefore could redeem it.
The case came on the heels of some regulatory and judicial back-and-forth on the issues of whether and how states could take title to Treasury bonds under state escheat laws, redeem the bonds, and keep the proceeds. At one point in the back-and-forth, Kansas adopted a title-escheatment statute, which conveyed title of abandoned bonds to the state. Treasury agreed to redeem bonds in the state's possession, but, under its regs, not those escheated bonds not in its possession. So Kansas sued.
As that case was pending, Treasury enacted new regs. The new regs gave Treasure the "discretion to recognize an escheat judgment that purports to vest a state with title to a [matured by unredeemed] savings bond . . . in the state's possession" when there is sufficient evidence that the bond has been abandoned. But the rule does not recognize "[e]scheat judgments that purport to vest a state with title to bonds that the state does not possess." In short, in order for a state to claim payment, the rule provides that (1) states must have possession of the bonds, (2) they must have "made reasonable efforts to provide actual and constructive notice of the state escheatment proceeding" and an opportunity to respond to all interested parties, and (3) there must be sufficient evidence of abandonment.
Kansas and others sued again, this time arguing that the new rule was arbitrary and capricious in violation of the APA, that it violates the Appointments Clause and the Tenth Amendment, and that it illegal confers the power to review state court judgments to a federal agency.
As to Appointments, the plaintiffs argued that the Treasury official who signed and promulgated the rule, Fiscal Assistant Secretary David A. Lebryk, appointed as an inferior officer, exercised authority as a principal officer in violation of the Appointments Clause. The court disagreed, pointing to the Fiscal Assistant Secretary's work, including the work on the new rule, which "is directed and supervised at some level by others who were appointed by Presidential nomination with the advice and consent of the Senate."
As to review of state judgments, the plaintiffs argued that the new rule permits Treasury to judge the due process and sufficiency-of-evidence in state court proceedings under the three prongs listed above. But the court said that "[t]wo bodies of law are at issue: a state law of escheat and a federal law of bond ownership," and that "[s]tate court judgments are final regarding the former, but Treasury--by operation of the Supremacy Clause and pursuant to its statutorily-delegated authority--may promulgate rules to define the latter." The court also said that Treasury's due process review is not aimed at implementing constitutional protections (as an appellate court might), "but at facilitating reliable determinations of abandonment."
Finally, as to the Tenth Amendment, the court said that Treasury promulgated the rule pursuant to statutory authority from Congress, enacted within Congress's constitutional authority, and so the rule raised no Tenth Amendment problem.
(The court also rejected the plaintiffs' APA claim.)
Wednesday, September 21, 2016
Twenty-one states, led by Texas, sued the federal government this week over the Labor Department's new overtime rule. The complaint, which argues that the rule violates the Tenth Amendment and principles of state sovereignty, puts Garcia, long a thorn in the side of states'-righters, on the chopping block.
The suit challenges DOL regulations under the Fair Labor Standards Act that raise the threshold exemption for overtime pay. This means that employers now have to pay overtime to employees who earn up to $47,476, up from $23,660. (The FLSA only exempts "managerial" positions from the overtime requirement. DOL has long used a salary test as a proxy for "managerial" in its regulations, however.) The rule applies to both private-sector employers and states.
The states argue that the new rule will cost them money and require them to reshuffle spending priorities, interfering with their state sovereignty and violating the Tenth Amendment.
The Supreme Court at one time would have agreed. The Court ruled in National League of Cities v. Usery in 1976 that the FLSA minimum-wage requirement violated the Tenth Amendment for exactly these reasons. But less than a decade later, when it became clear that this approach couldn't work across the myriad federal regulations that applied to states in their non-sovereign capacity, the Court walked back. It ruled in Garcia v. San Antonio Metropolitan Transit Authority (1985) that the FLSA did not violate the Tenth Amendment, and that states had plenty of protection against federal overreach through the ordinary political process.
Now the plaintiffs in this latest lawsuit explicitly argue that Garcia should be overruled. They say that subsequent developments in the law have undermined the case, and that it's time to go back to National League of Cities.
The complaint speaks in terms of the additional burden to the states of the new DOL regulation, but its logic extends to any federal standard (like minimum wage, maximum hours, worker safety, etc.) imposed on the states. As a result, the case, if ultimately successful, would work a sea change in federal-state relations as they've existed since 1985, potentially across policy areas. That seems unlikely given the current composition of the Court. But who knows what might happen after the election.
The states also argue that the new regulation exceeds DOL authority under the FLSA, because the FLSA sets the overtime requirement based on job type ("managerial"), but the DOL regs set the requirement based on salary. This claim may have more traction (in the Fifth Circuit, at least, and possibly before the Supreme Court). It's similar to the core claim in the last state effort, also led by Texas, to challenge administrative action as a violation of the Constitution and the Administrative Procedures Act--in that case, the DAPA program. An evenly divided Supreme Court left in place the Fifth Circuit's ruling that DAPA violated the APA.
Friday, August 28, 2015
The Ninth Circuit yesterday upheld federal laws criminalizing sexual assaults in facilities where federal inmates are held by agreement with state and local governments. The ruling is a baby-step extension of United States v. Comstock, the Court's 2010 case holding that Congress had authority under the Necessary and Proper Clause to authorize civil detention of "sexually dangerous" federal prisoners beyond their term of imprisonment. It's a baby-step beyond Comstock, because these laws have the added feature that they operate within state and local detention facilities--where the federal government contracts to hold federal inmates.
Sabil Mujahid brought the facial claim against the federal statutes, arguing that they exceeded Congress's authority and ran afoul of the Tenth Amendment. The provisions criminalized sexual assault "in any prison, institution, or facility in which persons are held in custody by direction of or pursuant to a contract or agreement with the Attorney General." By its plain terms, the provision outlaws sexual assault by non-federal inmates in these facilities, too, but Mujahid is a federal inmate, and the court limited its ruling to federal inmates.
The court, applying Comstock, flatly rejected Mujahid's claims. In short:
Like the civil commitment statute in Comstock, [these statutes] are not facially unconstitutional; they are "a 'necessary and proper' means of exercising the federal authority that permits Congress to create federal criminal laws, to punish their violation, to imprison violators, to provide appropriately for those imprisoned, and to maintain the security of those who are not imprisoned but who may be affected by the federal imprisonment of others. See Comstock.
As I said, the court specifically did not rule on the statutes as applied to state inmates in these same facilities. That question may raise more complicated issues (but just slightly).
Friday, June 5, 2015
The D.C. Circuit this week upheld a key authority of the EPA for enforcing the Clean Air Act against federalism and congressional authority challenges. The per curiam ruling rejected other challenges to EPA action, as well, and means that the case is dismissed. The ruling leaves intact the EPA's authority to designate geographic areas as noncompliant with the Clean Air Act and to take certain enforcement actions.
The federalism challenge in the case, Mississippi Commission on Environmental Quality v. EPA, sought to exploit the plurality's ruling in NFIB, where the Court held that Obamacare's Medicaid expansion couldn't condition a state's entire Medicaid grant on the ACA's Medicaid expansion. But the court rejected that argument, easily distinguishing Medicaid expansion and the EPA's actions here, as described below.
The case tested EPA's authority to designate certain geographic areas as noncompliant with the Clean Air Act's National Ambient Air Quality Standards. A variety of plaintiffs lodged complaints, but only two, Wise County, Texas, and the Texas Commission on Environmental Quality, raised constitutional claims. They argued that the EPA's designation of Wise County as a nonattainment area violated the Tenth Amendment and due process, and exceeded congressional authority under the Commerce Clause.
The court rejected these arguments. The court ruled that the Clean Air Act "authorizes the EPA to promulgate and administer a federal implementation plan of its own if the State fails to submit an adequate state implementation plan." The court said that's not commandeering, because the federal government isn't requiring the state or state officers to implement the federal plan.
The court also ruled that the Clean Air Act's sanctions for noncompliance--re-direction of a portion of federal highway funds to federal programs that would improve air quality--were not unduly coercive under NFIB. That's because they don't come close to the size of a state's federal Medicaid grant, and because it wasn't a new program that came as a surprise to the states. Indeed, the condition has been on the books (and states have taken advantage of it) for decades.
The court said that the Clean Air Act's delegation of authority to the EPA to designate areas as noncompliant is well within Congress's Commerce Clause authority. The court said that dirty air blows across state lines, causing a substantial effect on interstate commerce, and that the activities in Wise County that led to the dirty air themselves have a substantial effect on interstate commerce.
Finally, the court rejected a due process claim that the EPA administrator for Region 6 was biased. The court said that the administrator's past professional activities and statements did not rise to the level of an "unalterably closed mind" or an inability or unwillingness "to rationally consider arguments."
As mentioned, the court rejected other arguments against the EPA's authority, too, mostly under the APA.
Wednesday, June 3, 2015
A New York appellate court has held that an "undocumented" immigrant can be admitted to the state bar and the practice of law in its opinion in In the Matter of Application of Cesar Adrian Vargas.
The court considered whether Vargas (pictured right), an "undocumented" immigrant who does posses documents authorizing him to be in the United States and to work under the Deferred Action for Childhood Arrivals (DACA) policy, could be admitted to the New York bar. The court determined that under state law he could. Importantly, the court also determined that pursuant to the Tenth Amendment, this state law should prevail.
The statutory landscape is somewhat complex. As the court explains most succinctly:
[The issue is] whether such an individual is barred from admission to the practice of law by a federal statute, 8 USC § 1621, which generally prohibits the issuance of state professional licenses to undocumented immigrants unless an individual state has enacted legislation affirmatively authorizing the issuance of such licenses. This presents an issue of first impression in New York and, in terms of the applicability of 8 USC § 1621 and its compatibility with the Tenth Amendment of the United States Constitution, an issue of first impression nationwide.
We hold that a narrow reading of 8 USC § 1621(d), so as to require a state legislative enactment to be the sole mechanism by which the State of New York exercises its authority granted in 8 USC § 1621(d) to opt out of the restrictions on the issuance of licenses imposed by 8 USC § 1621(a), unconstitutionally infringes on the sovereign authority of the state to divide power among its three coequal branches of government. Further, we hold, in light of this state’s allocation of authority to the judiciary to regulate the granting of professional licenses to practice law (see Judiciary Law § 53), that the judiciary may exercise its authority as the state sovereign to opt out of the restrictions imposed by section 1621(a) to the limited extent that those restrictions apply to the admission of attorneys to the practice of law in the State of New York.
In essence, the court holds that a federal statute cannot constitutionally require that only a legislative enactment of a state will satisfy the statute's opt-out provision.
While the court noted that it is "unusual" for a state court to pass judgment on the constitutionality of a federal statute, it is not unprecedented.
The court found that the Tenth Amendment is implicated because "although Congress has left the ultimate determination whether to extend public benefits, including professional licensure, to the states, it has, at the same time, prescribed the mechanism" - - - exclusively legislative - - - "by which the states may exercise that authority." But in New York, the legislature has "determined that the state judiciary is the sovereign authority vested with the responsibility for formulating the eligibility qualifications and processes governing the admission of attorneys and counselors to the practice of law." Thus, the court concludes that the legislative limitation in the federal statute "cannot withstand scrutiny under the Tenth Amendment."
The court analogized to Gregory v. Ashcroft (1991) in which the United States Supreme Court relied on the Tenth Amendment to reject a federal age discrimination claim by state judges to Missouri's mandatory retirement age of 70.
Although Gregory addressed the state’s interest in determining who holds office, the State of New York has no less an interest in determining which of its branches of government is empowered to exercise the discretion authorized by section 1621(d) to determine who may be licensed as an attorney and counselor-at-law. Indeed, the role of New York courts in regulating attorneys is deliberate, well-considered, and time-tested. There are sound reasons why, in New York, the responsibility for attorney admissions is vested in the state’s judiciary rather than in other branches or departments of government. As Judge Benjamin Cardozo declared nearly 90 years ago, an attorney is “an officer of the court, and, like the court itself, an instrument or agency to advance the ends of justice.”
The court then cites the "variety of rules governing the admission and conduct of attorneys" that the New York judicial branch formulates and oversees: the Rules of Professional Conduct; the State Board of Law Examiners; the 50-hour pro bono requirement for new attorney admissions; the licensure of legal consultants; the admission of counsel pro hac vice; the payment of biennial attorney registration fees; the parameters of attorney advertising; the requirements for attorney-client retainer agreements; and the imposition of discipline upon attorneys who violate the state’s ethics rules.
For the court, the "ability, indeed the right, of the states to structure their governmental decision-making processes as they see fit is essential to the sovereignty protected by the Tenth Amendment." Thus, the federal statute cannot limit the decision regarding noncitizen licensure to only one branch of a state's government.
While equal protection and other constitutional arguments were raised in the case, the court's interpretation of the federal statute and its own conclusion regarding the applicant's suitability for bar admission obviated consideration of those arguments.
[full disclosure: Vargas is a graduate of CUNY School of Law].
Friday, May 8, 2015
First, Florida Governor Rick Scott sued the federal government for halting federal LIP funding for the state. Now, according to The Hill, he's turning to state hospitals to figure out how to replace federal LIP funds with a make-shift state program.
Here's one governor who really doesn't want to expand Medicaid.
As we previously explained, HHS told Florida that it would lose federal Low Income Pool, or LIP, money, designed to pay back hospitals for uncompensated care for low-income individuals, because HHS deemed Medicaid a better way to pay for low-income health care. But that would require Florida to expand Medicaid under Obamacare. HHS's move prompted Governor Scott to sue HHS, arguing that the threat to halt LIP funding amounted to coercion to expand Medicaid in violation of NFIB v. Sebelius. (It doesn't. NFIB said that the ACA's structure, which allowed HHS to halt all a state's Medicaid funding if a state declined to expand Medicaid to reach those at or below 133% of the federal poverty line, was unduly coercive. Losing LIP funding is a far cry from that structure. And that's even assuming that HHS's move to halt Florida's LIP funding is a kind of penalty for Florida's decision not to expand Medicaid (and it's not at all clear that it is).)
Perhaps recognizing that the suit was a nonstarter, now Governor Scott is looking inward, to Florida, to fund its own LIP-like program. He's asked state hospitals to submit proposals for sharing profits to cover the costs of a state-run program.
Wednesday, April 29, 2015
Florida Governor Rick Scott filed suit yesterday against the federal government arguing that its move to take away the state's Low Income Pool money compels the state to expand Medicaid under the Affordable Care Act--all in violation of the anti-commandeering principle and the "gun to the head" principle in NFIB v. Sebelius.
We posted on Florida's LIP and the constitutional issues here. The Center for Budget and Policy Priorities just put out a very helpful backgrounder here.
In short, LIP is a federal program that pays health-care providers for uncompensated care for the poor. Medicaid, and the ACA's Medicaid expansion, pays directly for health care for that same population.
The lawsuit argues that the federal government threatened to take away the state's LIP money unless the state expands Medicaid under the ACA--and that this amounts to unconstitutional coercion in violation of federalism principles and the Tenth Amendment under NFIB.
But the case is a sham. The federal government doesn't appear to be strong-arming Florida into expanding Medicaid as much as it appears to prefer to spend money directly on health insurance for the poor instead of paying for uncompensated care for them. That's a policy choice that the federal government can make. States have no entitlement to LIP money, or to any particular federal approach to providing health care for the poor. And when the feds take away LIP funds, Florida's choice is clear: figure out a way to cover care for the poor, or don't.
Governor Scott claims that this isn't a real choice, because the state can't afford to let the poor go without health insurance. If that's right, he can implement his own program, or he can expand Medicaid. This hardly seems like compulsion.
The case is obviously politically, and not constitutionally, motivated, and probably has little chance of success on the merits. "Probably," because so many thought the same thing about NFIB, before the Court got a hold of it.
There's another commonality with NFIB: Governor Scott hired Paul Clement to represent him.
Monday, February 9, 2015
Supreme Court Denies Stay of Alabama Same-Sex Marriage While Alabama Supreme Court Chief Justice Continues the Argument
Over a dissenting opinion by Justice Thomas, joined by Justice Scalia, the Court denied the application for a stay in Strange v. Searcy. Recall that in January, Alabama District Judge Callie V.S. Granade entered an injunction against the enforcement of the state's constitutional amendment and statutes banning same-sex marriage and the recognition of same-sex marriages from other states.
The controversial Chief Judge of the Alabama Supreme Court Roy Moore has reacted negatively to the federal court opinion, including penning a letter to the Governor arguing that the state should not - - - and need not - - - comply with the federal order. That letter prompted an ethics complaint filed against Roy Moore from the Southern Poverty Law Center arguing that:
Chief Justice Roy Moore has improperly commented on pending and impending cases; demonstrated faithlessness to foundational principles of law; and taken affirmative steps to undermine public confidence in the integrity of the judiciary. For all these reasons, we respectfully request that this Judicial Inquiry Commission investigate the allegations in this complaint and recommend that Chief Justice Moore face charges in the Court of the Judiciary.
assist weary, beleaguered, and perplexed probate judges to unravel the meaning of the actions of the federal district court in Mobile, namely that the rulings in the marriage cases do not require you to issue marriage licenses that are illegal under Alabama law.
Judge Moore's argument that the state need not comply with federal decisions has prompted some commentators to make comparisons to Alabama's position during the Civil Rights Era, including a thoughtful WaPo piece by ConLawProf Ronald J. Krotoszynski Jr. at University of Alabama Law School.
The dissenting opinion from Justice Thomas (joined by Scalia) did not mention Judge Moore by name, but did include a decisive nod to some of Moore's arguments:
Today’s decision represents yet another example of this Court’s increasingly cavalier attitude toward the States. Over the past few months, the Court has repeatedly denied stays of lower court judgments enjoining the enforcement of state laws on questionable constitutional grounds. *** It has similarly declined to grant certiorari to review such judgments without any regard for the people who approved those laws in popular referendums or elected the representatives who voted for them. In this case, the Court refuses even to grant a temporary stay when it will resolve the issue at hand in several months.
Perhaps more importantly, Justice Thomas notes that the constitutionality of same-sex marriage is now before the Court, but yet
the Court looks the other way as yet another Federal District Judge casts aside state laws without making any effort to preserve the status quo pending the Court’s resolution of a constitutional question it left open in United States v. Windsor, 570 U. S. ___ (2013). This acquiescence may well be seen as a signal of the Court’s intended resolution of that question.
Justice Thomas is not the only one considering whether the Court's denial of a stay and thus allowing same-sex marriages to proceed in Alabama is a "signal" of the Court's leanings in DeBoer v. Snyder.
February 9, 2015 in Cases and Case Materials, Courts and Judging, Current Affairs, Due Process (Substantive), Equal Protection, Family, Federalism, Fourteenth Amendment, Full Faith and Credit Clause, Interpretation, News, Opinion Analysis, Recent Cases, Supremacy Clause, Supreme Court (US), Tenth Amendment | Permalink | Comments (0) | TrackBack (0)
Wednesday, January 28, 2015
Ohio AG Mike DeWine this week sued the federal government for levying an assessment against the state under the ACA's Transitional Reinsurance Program. DeWine argues that the federal assessment on the state violates the text of the ACA (which, he says, doesn't authorize the government to levy this assessment on the states), the Tenth Amendment, the anti-commandeering principle, and intergovernmental tax immunity.
Under the Transitional Reinsurance Program, the federal government collects a contribution from health insurers and self-insurers (or their administrators) in order to off-set the costs of high-risk individuals in the individual health insurance market and thus to stabilize premiums in the individual market. Part of the proceeds also goes to the general fund of the Treasury. The contributions are in effect from 2014 through 2016.
AG DeWine claims that the federal government wrongfully assessed his state $5.3 million. (Ohio self-insures its employees.) He claims that the ACA didn't authorize this, and that it violates various federalism principles in the Constitution:
71. Had Congress applied this tax directly against State and local governments, which it did not, such a tax would violate the "residuary and inviolable sovereignty" that the United States Constitution leaves to the several States in our federalism system . . . .
72. Especially here, where the tax is not imposed as a "user fee" on States or local governments and where the tax is specifically designed to raise more revenue for the federal government than will be allocated to the reinsurance program (with certain amounts of the tax revenues indeed designed as monies that "may not be used for the program established under this section," 42 U.S.C. Sec 18061(b)(4)), such a direct tax against the State and its instrumentalities would breach our federal Constitution's vertical separation of powers.
73. The federal government lacks authority under the United States Constitution to levy such broad-based, revenue-generating taxes against the States and their instrumentalities.
Monday, July 28, 2014
Affirming the federal district judge's decision in February, a panel of the Fourth Circuit in a divided opinion has held in Bostic v. Schaefer that Virginia's same-sex marriage prohibitions are unconstitutional.
violate the Due Process and Equal Protection Clauses of the Fourteenth Amendment to the extent that they prevent same-sex couples from marrying and prohibit Virginia from recognizing same-sex couples’ lawful out-of-state marriages.
At various times, the court blends Due Process and Equal Protection analysis and precedent, but both spring from its conclusion that "marriage" is a fundamental right and that "marriage" includes same-sex marriage. After discussing Loving v. Virginia, Zablocki v. Redhail, and Turner v. Safley, the court notes:
These cases do not define the rights in question as “the right to interracial marriage,” “the right of people owing child support to marry,” and “the right of prison inmates to marry.” Instead, they speak of a broad right to marry that is not circumscribed based on the characteristics of the individuals seeking to exercise that right. The Supreme Court’s unwillingness to constrain the right to marry to certain subspecies of marriage meshes with its conclusion that the right to marry is a matter of “freedom of choice,” Zablocki, 434 U.S. at 387, that “resides with the individual,” Loving, 388 U.S. at 12. If courts limited the right to marry to certain couplings, they would effectively create a list of legally preferred spouses, rendering the choice of whom to marry a hollow choice indeed.
The court's use of "couplings" implicitly addresses a portion of the oft-called slippery slope argument that is raised by Judge Paul Niemeyer in his dissent: what would prevent this rationale from extending to polygamy? The dissent also invokes incest, accusing the majority of "dictionary jurisprudence" when it (re)defines marriage to include same-sex marriage. But of course, the definitional conundrum plagues the dissent as well, when it argues that certain qualities are "foundational" to marriage and other qualities are "irrelevant." For the dissent, this is the "biological link between procreation and marriage," a link that does exist in the polygamous and incestuous marriages the dissent disapproves.
For the majority, after finding marriage a fundamental right deserving of strict scrutiny, the five governmental interests argued as supporting the marriage laws not surprisingly fail to pass constitutional muster:
- (1) Virginia’s federalism-based interest in maintaining control over the definition of marriage within its borders,
- (2) the history and tradition of opposite-sex marriage,
- (3) protecting the institution of marriage,
- (4) encouraging responsible procreation, and
- (5) promoting the optimal childrearing environment.
More surprising is that although these interests are raised by the parties the court calls the "Proponents" of the Virginia marriage laws, there is little in the court's opinion that analyzes their standing to appeal. The court does analyze the standing of the plaintiffs to sue the defendants George Schaefer III (in his official capacity as Clerk of Court for Norfolk Circuit Court) and Janet Rainey (in her official capacity as State Registrar of Vital Records). And since these parties were indeed defendants, there may be little need for an extensive analysis of appellate standing as was necessary in the same-sex marriage cases decided by the United States Supreme Court in June 2013. Nevertheless, recall that the (new) Virginia Attorney General had decided during the district court litigation that the Virginia laws were unconstitutional and filed a notice of change of position; however the laws continued to be enforced.
The Fourth Circuit thus joins the Tenth Circuit in holding that a state's same-sex marriage ban violates the Fourteenth Amendment. While these circuit court opinions are divided, the dozen or so federal district judges who have considered the issue have been unanimous in reaching the same conclusion.
July 28, 2014 in Courts and Judging, Due Process (Substantive), Equal Protection, Family, Fourteenth Amendment, Fundamental Rights, Opinion Analysis, State Constitutional Law, Tenth Amendment | Permalink | Comments (0) | TrackBack (0)
Thursday, January 30, 2014
The Fourth Circuit ruled this week in Montgomery County, Maryland v. Federal National Mortgage Association that Fannie Mae and Freddie Mac enjoy statutory immunity certain state and local taxes--and that this congressionally granted immunity is not unconstitutional.
The ruling is a rejection of some of the more aggressive states'-rights theories that we've heard in other contexts. It underscores federal supremacy, even in the area of state and local taxes. It's not a surprising ruling, but the court's flat rejection of certain of the plaintiffs' states-rights arguments is notable.
The case arose out of Fannie's and Freddie's refusal to pay state and local transfer and recording taxes on foreclosed properties that they sought to sell. Fannie and Freddie cited their federal statutory exemption, which exempts Fannie and Freddie generally from state and local taxes, "except that any real property of [either entity] shall be subject to State, territorial, county, municipal, or local taxation to the same extent as other real property is taxed."
The court distinguished between property taxes (not exempt under the statute) and transfer taxes (exempt) and ruled that Fannie and Freddie were exempt under the plain language.
But that's not the interesting part. The court also ruled that Congress had authority to grant the exemption, and that it didn't run afoul of federalism principles.
The court rejected the plaintiffs' contention that Fannie's and Freddie's property sales were local in nature, and therefore outside Congress's Commerce Clause authority. "In this case, the overall statutory schemes establishing Fannie Mae and Freddie Mac are clearly directed at the regulation of interstate economic activity." The court also rejected the novel contention that the sweep of congressional authority here should be judged under a strict scrutiny standard (and not traditional rational basis review), because the exemption intruded into an area of state sovereignty. "The Counties' analogy to the Fifth and Fourteenth Amendments fails because there is not independent constitutional protection for the States' right to tax."
The court also rejected the plaintiffs' contentions that the exemption violated federalism principles. The court said that the exemption didn't commandeer states or state officials, that it didn't violate the Tenth Amendment (because Congress acted within its Commerce Clause authority), and that Congress can exempt non-government entities like Fannie and Freddie.
Tuesday, December 3, 2013
Opponents of the Affordable Care Act, or Obamacare, have set off a new wave of challenges to the Act, according to today's NYT. Among these: the religious challenges to the contraception mandate; cases challenging President Obama's extension of the employer mandate deadline; and challenges to the IRS rule providing a subsidy to purchasers of health insurance on the federal exchange.
As to that last one: plaintiffs in a spate of cases argue that Section 1401(a) of the ACA provides that purchasers of health insurance on a state exchange, but not the federal exchange, get a federal subsidy; yet the IRS issued a rule that extends the federal subsidy (in the form of a tax credit) to purchasers on the federal exchange. This, they say, violates the Administrative Procedures Act and the Tenth Amendment.
Why the Tenth Amendment? Opponents say that under the ACA an employer who declines to extend coverage has to pay a penalty if and when the federal government gives the employer's employees a subsidy for purchasing health insurance on a state exchange. Opponents say that the IRS rule extends this federal subsidy, and also the employer penalty, when the employer's employees purchase health insurance on the federal exchange. According to opponents, that undermines the state's policy decision not to open a state exchange in the first place. Or, as Indiana put it in paragraph 10 of its complaint in State of Indiana v. IRS:
[The IRS rule] contravenes the text of the ACA, thwarts Indiana's ability to execute State policy sparing employers from Employer Mandate penalties, induces Plaintiffs to reduce the hours of certain employees, including part-time and intermittent employees, to avoid having to provide all such employees with minimum essential coverage, and requires Plaintiffs to file onerous reports with the IRS detailing insurance coverage decisions. It thereby violates both the Administrative Procedure Act and the Tenth Amendment, and the Court should permanently enjoin Defendants from putting it into effect.
Later, in paragraph 17, it says:
In light of the IRS Rule, the State will be forced to reduce the hours of several part-time or intermittent employees in order to avoid the "assessable payment" or employer penalty of the ACA.
According to the Notice of Final Rulemaking, the IRS considered and rejected claims that the ACA itself limits subsidies to purchasers on state exchanges when it took comments on the proposed rule. The IRS said:
The statutory language of section 36B and other provisions of the Affordable Care Act support the interpretation that credits are available to taxpayers who obtain coverage through a State Exchange, regional Exchange, subsidiary Exchange, and the Federally-facilitated Exchange. Moreover, the relevant legislative history does not demonstrate that Congress intended to limit the premium tax credit to State Exchanges.
Friday, August 23, 2013
The United States Department of Justice sued the State of Texas in federal court seeking to halt the state's voter ID law and to subject the state to ongoing court monitoring under the Voting Rights Act.
The case comes in response to the Texas Attorney General's announcement that the state would move to implement its restrictive voter ID law. The law, SB 14, was denied preclearance under Section 5 of the Voting Rights Act by a three-judge federal court. But the Supreme Court struck Section 5 this summer in Shelby County v. Holder, and vacated the lower federal court's denial of preclearance of SB 14 (and a federal court's denial of preclearance in another case, involving Texas redistricting plans), leaving Texas open to enforce SB 14. (Our coverage of Shelby County is here.) The state AG announced within hours of the Shelby County ruling that the state would move to enforce it. Now the Justice Department has sued to stop it.
DOJ argues that SB 14 violates Section 2 of the VRA both because it was enacted with a discriminatory intent and because it would have a discriminatory effect on the state's Hispanic population. DOJ seeks declaratory and injunctive relief, and continuing federal court monitoring of the state through a preclearance requirement under the "opt-in" provision in Section 3(c) of the VRA. (AG Holder previously announced that he'd seek an opt-in preclearance requirement for Texas in the redistricting case.)
Texas AG Greg Abbott responded to the suit in a press release and gave a glimpse of his defense--the Tenth Amendment.
Just two months ago the U.S. Supreme Court struck down federal preapproval of state election laws. The Court emphasized that the Tenth Amendment empowers states--not the federal government--to regulate elections. The Obama administration continues to ignore the Tenth Amendment and repeated Supreme Court decisions upholding states' authority to enforce voter identification and redistricting laws.
Sunday, June 23, 2013
The Cato Institute hosted a discussion last week featuring Nicholas Quinn Rosenkranz, Judge Alex Kozinski, and Roger Pilon on Bond v. United States, the case involving federal prosecution of a defendant for spreading harmful chemicals on the property of her best friend, after learning that the friend was pregnant by her husband. Our most recent post is here. (Prosecution is under the Chemical Weapons Convention Implementation Act, enacted to enforce the terms of the Chemical Weapons Convention, a valid U.S. treaty.)
Cato's discussion is titled Can a Treaty Increase the Power of Congress? That's also the way Cato framed the issue in its amicus brief. Bond, however, in seeking cert., asked somewhat more subtle questions: whether the Court whether structural limits in the Constitution restricted congressional authority to enact legislation, and whether the Chemical Weapons Convention Implementation Act might be interpreted so as to avoid this question. Catos' brief in the case is here; Rosenkranz's related HLR article is here.
Friday, May 3, 2013
Kansas thumbed its nose at the federal government and its current and future gun laws recently in SB 102, the Second Amendment Protection Act, which declares federal gun laws unenforceable in the state.
In particular, SB 102 says that the state legislature "declared" that firearms and accessories "manufactured commercially or privately and owned in Kansas and that remain within the borders of Kansas . . . have not traveled in interstate commerce" and therefore are not subject to federal regulation, including any federal registration requirement, under the Commerce Clause. In short, the law seeks to insulate firearms and accessories that are made and kept only within the state from federal regulation under the Commerce Clause. This reading of the Clause would deny the federal government authority to regulate activities that have a substantial effect on interstate commerce--a well settled congressional authority. (The law also says that component parts imported from other states don't transform an otherwise Kansas-made firearm into an item in interstate commerce.) To that extent, the law seems well tailored to test this long-standing aspect of congressional Commerce Clause authority--the power to regulate intrastate activities that have a substantial effect on interstate commerce. If so, that's unlikely to go anywhere. (Even in last summer's ACA/individual-mandate case, the Court gave no indication that it would wholly reconsider Congress's power to regulate activities that have a substantial effect on interstate commerce.)
More, SB 102 outlaws enforcement of federal law--even by federal law enforcement. Enforcement of federal law is a felony in Kansas, but the legislature gave federal law enforcement officials this gift: Kansas won't arrest or detain them prior to, or during the pendancy of, any trial for a violation. In other words, the charge, trial, and conviction are all just part of the political theater surrounding this obviously invalid law.
(In addition to the substantive portions of the law, SB 102 also includes the usual statements for this kind of law--statements about the Tenth Amendment (in support of a robust idea of states' rights) and the Second Amendment (as an absolute bar to any gun regulation). It also has a section on the Ninth Amendment.)
Attorney General Eric Holder shot back, reminding the state of the Supremacy Clause, and concluding that "the United States will take all appropriate action, including litigation if necessary, to prevent the State of Kansas from interfering with the activities of federal officials enforcing federal law."
Governor Brownback responded, arguing that the measure enjoyed wide bi-partisan support in the state. He said that this meant that "[t]he people of Kansas have clearly expressed their sovereign will. It is my hope that upon further review, you will see their right to do so."
Monday, January 21, 2013
The Court granted certiorari Friday in Bond v. United States - - - again.
Recall that the first time the Court heard Carol Anne Bond's case, it held that she did indeed have standing to assert a Tenth Amendment argument against her charge for violating 18 U.S.C. § 229(a), enacted by Congress to implement the United States’ treaty obligations under an international arms-control agreement, the Chemical Weapons Convention, that prohibits nation-states from producing, stockpiling, or using chemical weapons. Bond, a biologist, used her expertise to spread injurious chemicals on the property of her former best friend, after learning that the friend was pregnant by Bond’s husband. Although Bond was prosecuted in state court, she continued her campaign against her former friend and she was eventually prosecuted in federal court.
On remand, the Third Circuit held that the Chemical Weapons Convention "falls comfortably within the Treaty Power's traditional subject matter limitation" and thus the implementing Act is "within the constitutional powers of the federal government under the Necessary and Proper Clause and the Treaty Power, unless it somehow goes beyond the Convention." While the Circuit did find the prosecution of Bond puzzling, there was also much puzzlement over the statement in Missouri v. Holland that “[i]f [a] treaty is valid there can be no dispute about the validity of the statute [implementing that treaty] under Article 1, Section 8, as a necessary and proper means to execute the powers of the Government."
It seems the Supreme Court is ready to clarify - - - or attempt to - - - Missouri v. Holland's famous statement.
[image of Methyldichloroarsine via]