Tuesday, May 3, 2022
Here's the draft obtained by Politico, apparently authored and circulated by Justice Alito. Here's the upshot:
We hold that Roe and Casey must be overruled. The Constitution makes no reference to abortion, and no such right is implicitly protected by any constitutional provision, including the one on which the defenders of Roe and Casey now chiefly rely--the Due Process Clause of the Fourteenth Amendment. That provision has been held to guarantee some rights that are not mentioned in the Constitution, but any such right must be "deeply rooted in this Nation's history and tradition" and "implicit in the concept of ordered liberty."
The right to abortion does not fall within this category. Until the latter part of the 20th century, such a right was entirely unknown in American law. Indeed, when the Fourteenth Amendment was adopted, three quarters of the States made abortion a crime at all stages of pregnancy. The abortion right is also critically different from any other right that this Court has held to fall within the Fourteenth Amendment's protection of "liberty." Roe's defenders characterize the abortion right as similar to the rights recognized in past decisions involving matters such as intimate sexual relations, contraception, and marriage, but abortion is fundamentally different, as both Roe and Casey acknowledged, because it destroys what those decisions called "fetal life" and what the law now before us describes as an "unborn human being."
Stare decisis, the doctrine on which Casey's controlling opinion was based, does not compel unending adherence to Roe's abuse of judicial authority. Roe was egregiously wrong from the start. Its reasoning was exceptionally weak, and the decision has had damaging consequences. And far from bringing about a national settlement of the abortion issue, Roe and Casey have enflamed debate and deepened division.
It is time to heed the Constitution and return the issue of abortion to the people's representatives. . . . .
Justice Alito wrote that the ruling doesn't call into question other recognized fundamental rights in cases cited in Roe and Casey. But the ruling could lay the groundwork for overturning more recent cases like Lawrence v. Texas and Obergefell--which, in the language of the opinion, recognize the "right to engage in private, consensual sexual acts" and the "right to marry a person of the same sex," respectively--if the Court ever reassess whether those rights are "deeply rooted" and "implicit in the concept of ordered liberty."
The opinion engages with some of the historical arguments in favor of Roe. But it doesn't engage with this one, by David Gans at the Constitutional Accountability Center. Check it out.
Monday, May 2, 2022
The Supreme Court ruled today in Shurtleff v. City of Boston that the City violated free speech when it refused to permit an organization to fly a religious flag on one of its flagpoles. The ruling is a victory for the organization. Going forward, however, the City can either permit organizations to fly religious flags as part of its third-party-flag-flying program, redesign the program so that flag-flying amounts to government speech, or drop the program entirely and fly only U.S., state, and city flags.
The case raised religious-freedom issues, but only in the context of viewpoint discrimination (by religion) of free speech, not as separate religion-clause questions. Still, three Justices weighed in on the Establishment Clause, one (Justice Kavanaugh) to promote a neutrality approach, and two (Justices Gorsuch and Thomas) to denounce the Lemon test.
The case arose when Harold Shurtleff, director of an organization called Camp Constitution, requested permission to fly a Christian flag on one of the three flagpoles outside Boston City Hall. Although the City had long permitted various outside organizations to fly their own flags on one of the flagpoles, it declined Shurtleff's request out of fear of violating the Establishment Clause. Shurtleff sued, arguing that the denial violated free speech.
The Court today agreed. Justice Breyer wrote for the Court and first said that an outside flag flying on the city's flagpole did not amount to government speech. (The First Amendment does not restrict the government in its own speech. So if the flagpole amounted to government speech, the City would've prevailed against Shurtleff's free speech claim.) The Court looked to three types of evidence, drawn from Pleasant Grove City v. Summum and Walker v. Texas Div., Sons of Confederate Veterans, Inc., to determine whether the flag was government speech: (1) the history of flag-flying at City Hall; (2) the public's likely perception about whose speech (the City, or the private organization) a flag represented; and (3) the extent to which the City "actively shaped or controlled the expression." The Court held that the evidence went both ways, but "[a]ll told, Boston's lack of meaningful involvement in the selection of flags or the crafting of their messages leads the Court to classify the third-party flag raisings as private, not government, speech."
The Court went on to hold that the City's denial amounted to impermissible viewpoint discrimination, on the basis of religion.
The Court pointed out that the City could change its policies going forward and turn its flagpoles into pure government speech, thus dodging any free-speech restrictions on its program.
The ruling was unanimous, but four Justices added their own views. Justice Kavanaugh, writing only for himself, argued that the whole dispute "arose only because of a government official's mistaken understanding of the Establishment Clause." He wrote: "As this Court has repeatedly made clear, however, a government does not violate the Establishment Clause merely because it treats religious persons, organizations, and speech equally with secular persons, organizations, and speech in public programs, benefits, facilities, and the like."
Justice Alito, joined by Justices Thomas and Gorsuch, argued that the Court's three-factor test for determining when speech is government speech was wrong. He pushed for this test: "government speech occurs if--but only if--a government purposefully expresses a message of its own through persons authorized to speak on its behalf, and in doing so, does not rely on a means that abridges private speech."
Finally, Justice Gorsuch, joined by Justice Thomas, took aim at the Lemon test. He said that Boston's conclusion that flying Camp Constitution's Christian flag would violate the Establishment Clause rested on this flawed--and "abandoned"--test.
Friday, March 25, 2022
The Supreme Court today stayed a lower-court injunction against the Defense Department's COVID vaccine mandate for 35 Navy special warfare personnel. The ruling means that the Navy can impose the mandate (or consequences) on servicemembers pending their appeal to the Fifth Circuit.
The case, Austin v. U.S. Navy Seals 1-26, arose when 35 Navy servicemembers assigned to naval Special Warfare Command units sued the Defense Department, arguing that DOD's COVID vaccine mandate violated the Religious Freedom Restoration Act and the Free Exercise Clause. The district court ruled in their favor and entered a preliminary injunction against the mandate. It later declined to stay the injunction, however, and the Fifth Circuit affirmed. The government then sought a "partial stay" of the injunction at the Supreme Court.
Today the Court granted the stay in an unsigned order.
Justice Kavanaugh wrote a concurrence, arguing that the district court's preliminary injunction improperly inserted the court into the military chain of command.
Justice Alito dissented, joined by Justice Gorsuch. He argued that DOD set up an unduly burdensome process for religious exemptions, and that it hadn't granted a single one. He claimed that the military's summary rejection of religious exemptions wasn't narrowly tailored to meet its compelling interest in minimizing serious health risks to Navy personnel, and that the government treated servicemembers who sought medical exemptions more favorably than those who sought religious exemptions.
The Supreme Court earlier this week reversed the Wisconsin Supreme Court's ruling that adopted the governor's proposed state legislative map. The Court held that the state high court didn't adequately scrutinize the map under equal protection and sent the case back to the Wisconsin Supreme Court for a re-do. (The same day, the Court declined to reverse the state court's adoption of the governor's map for the state's congressional districts.)
The ruling is a short-term win for legislative Republicans against the Democratic governor. But because the state supreme court has a chance to reanalyze the governor's proposed map, the result may be the same--adoption of the governor's map.
The case, Wisconsin Legislature v. Wisconsin Elections Commission, arose when the state supreme court directed the governor and the state legislature, who couldn't agree on a map, to propose maps. The governor proposed a map that included a new seventh majority-black district--the current map includes only six--in order to comply with Section 2 of the Voting Rights Act. (Section 2 requires that a state's "political process" must be "equally open to participation" to members of racial minority groups, so that group members have an equal opportunity "to participate in the political process and to elect representatives of their choice.")
The court adopted the governor's map. The legislature then filed for a stay at the Supreme Court, arguing that the map used race in violation of the Equal Protection Clause.
The Court agreed. The Court noted that under equal protection a state's use of race as a "predominant" factor in redistricting must satisfy strict scrutiny. That means that a state must show that its use of race is narrowly tailored to meet a compelling government interest. The Court acknowledged that under Court precedent compliance with the Voting Rights Act is a compelling interest. But still, a state map must be narrowly tailored to comply with the VRA to satisfy strict scrutiny.
The Court held that the map failed this test. It said that the governor didn't sufficiently prove that a seventh majority-black district was necessary to comply with the VRA, or that the court didn't sufficiently assess whether the map was necessary to comply with the VRA. In particular, the Court said that the Wisconsin court failed to determine whether a race-neutral map that didn't include a seventh majority-black district could satisfy the VRA. (If so, the governor's map wouldn't be necessary to comply with the VRA.)
The Court remanded the case to the Wisconsin Supreme Court "to undertake a full strict-scrutiny analysis." This could mean that the court simply collects more evidence, sharpens its analysis, and re-adopts the governor's map. Or it could go in a different direction.
Justice Sotomayor dissented, joined by Justice Kagan. She argued that the Court's action was "unprecedented." That's because "summary reversals are generally reserved for decisions in violation of settled law," but law in this area "is hazy at best." She also claimed that the Court would do better to let an appropriate plaintiff bring a direct equal protection challenge or VRA challenge in the appropriate forum.
Thursday, March 24, 2022
The Supreme Court ruled today that a condemned prisoner was likely to succeed on his claim that prison authorities violated his religious rights when they denied his request to allow his pastor to pray and lay hands on him in the execution chamber.
The preliminary ruling only means that the prisoner's execution without his pastor is temporarily halted. Prison authorities could, of course, allow the pastor to pray and lay hands, and then schedule the execution.
The case, Ramirez v. Collier, arose when condemned prisoner John Ramirez asked prison authorities to allow his pastor to pray and lay hands on him in the execution chamber before and during his execution. Authorities denied the request, and Ramirez sued, arguing that the denial violated the Religious Land Use and Institutionalized Persons Act. Ramirez sought a temporary injunction halting his pastor-less execution.
The Court granted Ramirez that injunction. The Court held that the prison's failure to honor Ramirez's request amounted to a "substantial" burden on his religious exercise, "sincerely based on a religious belief." Moreover, the Court said that the prison's denial wasn't the "least restrictive means" of achieving its stated interests in denying the request. The Court held that the prison's denial thus failed RLUIPA's strict scrutiny test for actions that substantially burden religious exercise.
As the Court noted, this is not a ruling under the Free Exercise Clause.
The Supreme Court ruled today that the Board of Trustees of the Houston Community College System did not violate the First Amendment when it censured a member for misconduct. The ruling is narrow: it only means that an elected body can censure (without further punishment) a member of the body (but not necessarily a non-member) without violating free speech.
The case, Houston Community College System v. Wilson, arose when the HCC Board censured member David Wilson for various antics that were "not consistent with the best interests of the College" and "not only inappropriate, but reprehensible." Wilson sued, arguing that the censure and related actions by the Board violated the First Amendment. The Court only addressed the censure, however, and not related actions.
Justice Gorsuch wrote for a unanimous Court that legislative bodies have a long tradition of censuring members, and that there's "little reason to think the First Amendment was designed or commonly understood to upend this practice." Moreover, the particular facts of this case counseled against Wilson's claim. For one, he was an elected official, and "[i]n this country, we expect elected representatives to shoulder a degree of criticism about their public service from their constituents and their peers--and to continue exercising their free speech rights when the criticism comes." For another, the only adverse action that Wilson suffered was . . . free speech by his colleagues on the Board. "The First Amendment surely promises an elected representative like Mr. Wilson the right to speak freely on questions of government policy." But just as surely, it cannot be used as a weapon to silence other representatives seeking to do the same."
Wednesday, December 8, 2021
The Supreme Court will hear arguments on Wednesday in Carson v. Makin, the case testing whether a state can exclude private schools with an overtly religious educational mission from a state program that provides public funds for private education. Here's my preview, from the ABA Preview of United States Supreme Court Cases, with permission:
Does a state violate the Religion Clauses or Equal Protection Clause of the United States Constitution by prohibiting students participating in an otherwise generally available student-aid program from choosing to use their aid to attend schools that provide religious, or "sectarian," instruction?
Maine’s Constitution requires local governments to provide free public education to the K-12 students in the state. Maine divides its schools across 260 local school administrative units (SAUs), serving nearly 180,000 students.
Maine gives SAUs the option to either operate their own schools “or otherwise provide for students to participate in [kindergarten through grade twelve] as authorized elsewhere” by statute. Me. Rev. Stat. Ann. tit. 20-A, § 1001(8). More than half of the SAUs do not operate their own public schools. For those SAUs, state law provides two options: they can contract with another public or approved private school for some or all of its students, or they can pay tuition for its students at another public school or “the approved private school of the parent’s choice at which the student is accepted.” Me. Rev. Stat. Ann. tit. 20-A, § 5204(4). Maine is careful to say that this is not a typical school-choice or voucher program. Instead, Maine only allows parents who live in SAUs with neither their own public schools nor with contracts with other schools to choose from “a small group of private schools who demonstrate to the State that the educational program they provide is a suitable equivalent to public education.” (Less than 5,000 students live in SAUs that contract with other schools or that pay students’ tuition at a private school.)
Maine law sets certain requirements for approved private schools to receive public funds for tuition. Among other things, any private school approved for the receipt of public funds must be “a nonsectarian school in accordance with the First Amendment of the United States Constitution.” Me. Rev. Stat. Ann. tit. 20-A, § 2951(2). Private schools typically self-identify as sectarian with the Maine Department of Education. But if there’s any question, the Department
considers a sectarian school to be one that is associated with a particular faith or belief system and which, in addition to teaching academic subjects, promotes the faith or belief system with which it is associated and/or presents the material taught through the lens of this faith. While affiliation or association with a church or religious institution is one potential indicator of a sectarian school, it is not dispositive. The Department’s focus is on what the school teaches through its curriculum and related activities, and how the material is presented.
Two sets of parents sued the state, arguing that the exclusion for tuition payments to sectarian schools violated the Free Exercise Clause, the Establishment Clause, and the Equal Protection Clause. One set of parents, David and Amy Carson, send their daughter to Bangor Christian Schools, a sectarian school with an overtly religious educational mission. The other set, Troy and Angela Nelson, currently send their daughter to Erskine Academy, a nonsectarian school, but would like to send her to Temple Academy, a sectarian school also with an overtly religious educational mission. Under state law, the plaintiffs’ SAUs could not pay for tuition at these schools.
The district court ruled in favor of the state, and the United States Court of Appeals for the First Circuit affirmed. This appeal followed.
This case implicates a couple strands of free-exercise jurisprudence. Let’s take a look in order to give some context to the parties’ arguments.
First, under the Free Exercise Clause, a generally applicable government action that is neutral with regard to religion is constitutional, so long as the action is rationally related to a legitimate government interest. That’s a very low-level test, and most government action will almost always pass.
But on the other hand, government action that targets religion, or that is based on anti-religion animus, must be narrowly tailored to meet a compelling government interest. That’s a very stringent test, and most government action will fail.
Next, the two religion clauses give states some limited room to make religion-based choices in designing their public policies. For example, the Court ruled in Locke v. Davey that a state could operate a program that provided scholarships for talented postsecondary students, even if it excluded students who pursued a degree in devotional theology. 504 U.S. 712 (2004). The state in that case adoption the exclusion pursuant to its own state constitution and in order to avoid direct state support of religion. The Court held that the exclusion fell in the “play in the joints” between the two religion clauses. On the one hand, the Court said that the state could include devotional theology students in the scholarship program without violating the Establishment Clause. But on the other hand, it said that the state’s exclusion didn’t violate the Free Exercise. The Establishment Clause didn’t compel the state to exclude devotional theology students, but the Free Exercise Clause didn’t require the state to include them, either. Under the play in the joints, the state could choose.
Finally, the Court more recently has interpreted Locke to say that a state may exclude the religious use of a state benefit, but that it may not exclude an otherwise qualified individual or organization based on religious status. The difference is between how a person or organization uses state resources, and what that person or organization is. For example, the Court ruled in Trinity Lutheran Church of Columbia, Inc. v. Comer, 137 S. Ct. 2012, (2017), that Missouri violated the Free Exercise Clause when it categorically excluded a Lutheran church’s school from a state grant program to resurface school playgrounds. The state excluded the school based only on the school’s affiliation with the church (its status), not because the school would use the funds for a religious purpose (its use).
Most recently, the Court ruled in Espinoza v. Montana Department of Revenue, 140 S. Ct. 2246 (2020), that a state that provides tax credits for contributions to organizations that provided scholarships to private schools must also provide tax credits for contributions for scholarships to private schools controlled by a “church, sect, or denomination.” Again, the state impermissibly excluded religions from its benefits program based only on a school’s religious status, not its religious use of public benefits.
Against this backdrop, the parents argue first that the tuition exclusion for sectarian schools violates the Free Exercise Clause, because it “is neither neutral toward religion nor generally applicable.” They say that the Court “has long held that a law lacking either characteristic is subject to strict scrutiny,” and that the exclusion must fail.
The parents argue next that the First Circuit was wrong to apply the “use/status distinction” to dodge this result. They contend that there is simply no basis for the distinction. They assert that the Framers elected to protect religious “exercise,” and not belief or conscience, and that this covers both use and status. Moreover, they claim that the Court has never used the distinction “as grounds for eluding strict scrutiny of laws that discriminate based on religion.” To the extent that Locke says otherwise, the parents argue that the Court should overrule it.
But even if the Court applies the use/status distinction, the parents argue that Maine’s exclusion must fail. They say that the exclusion “forces students to choose between their free exercise rights and receipt of a public benefit,” that it “discriminates based on religious use and status in equal measure,” and that “it is not narrowly targeted at an essentially religious endeavor,” or use.
The parents argue that because the exclusion discriminates against religion, Maine must proffer an “historic” and “substantial” interest. But they say that Maine’s asserted interests are insufficient. For one, they contend that Maine’s interest in avoiding an Establishment Clause violation by funding sectarian education is legally flawed under Court precedent. For another, they claim that Maine’s interest in ensuring that public funds “support only the rough equivalent of public education” is neither historic nor substantial, and that the exclusion does not support it, in any event.
The parents argue next that the exclusion violates the Establishment Clause. They say that the exclusion lacks a secular purpose, that it has a principal effect of inhibiting religion, and that it requires excessive government entanglement with religion. As to that last point, they contend that the state, in order to enforce the exclusion, “must make intrusive inquiries and judgments regarding the school’s religious curriculum and activities” and, worse, must make judgments about a school’s religious status versus its religious use of public funds.
Finally, the parents argue that the exclusion impermissibly discriminates against religious schools in violation of the Equal Protection Clause. The parents point to the Fourteenth Amendment’s framer’s “concern with ensuring that religious educators supported by the Freedman’s Bureau could continue their efforts to educate the freedmen in the wake of the Civil War.” They say that “[i]t would be perverse” to hold that the Clause means less today than it did to the framers of the Fourteenth Amendment.
Maine counters first that the exclusion does not violate the Free Exercise Clause. Maine contends that this case is really about public education, and that its exclusion is merely designed to ensure that private schools that receive public tuition funds provide an education that substantially equivalent to public education. The state says that “religious education is nothing like a public education”: “An education that includes proselytization and inculcation in specific religious beliefs and supports the exclusion of some children and families is antithetical to a public education.” Maine asserts that while parents are free to provide their children with this kind of religious education, the Free Exercise Clause does not require the state to support it. Maine says that the exclusion is designed only to ensure that private schools that receive state fund provide the equivalent to a secular public education; it is not designed to target religion, or out of any anti-religion animus.
Maine argues that the Court has recognized that a state need not extend a public-benefits program for religious use, even if a state cannot deny participation in a public-benefits program based on religious status. The state claims that its system and criteria fall on the “use” side, and that its system and criteria fall in the permissible play-in-the-joints between the two religion clauses.
But even if the Court treats the exclusion as targeting religion, Maine argues that it satisfies strict scrutiny. The state says that it has a compelling government interest in providing a secular public education. And it claims that the exclusion is narrowly tailored to achieve this interest, because it only excludes religious uses of public funds, consistent with its interest in providing a secular public education.
As to the Establishment Clause, Maine argues that the parents’ approach is wrong, and “would turn that clause on its head.” That’s because Maine’s exclusion is designed to prevent the use of public funds for religious practices, not to promote religion. The state says that “[a]ny Establishment Clause concerns weigh heavily” in its favor, as the exclusion, if anything, helps to avoid Establishment Clause violations.
Maine argues that the same arguments that the exclusion does not violate the Free Exercise Clause also mean that the exclusion does not violate the Equal Protection Clause.
Finally, Maine argues that the parents lack standing. The state says that “it is speculative whether a favorable ruling will result in the relief they seek,” because the evidence suggests that their preferred schools might not accept public funds. Maine claims that if the schools won’t accept public funds, any relief that the Court could grant would not redress their alleged injury, because the children would not be able to attend the schools at public expense, anyway.
(The government, as amicus in support of Maine, makes substantially similar arguments.)
The Court in recent years has dramatically expanded religious liberties and the role of religion in public life. In rulings favoring religion over anti-discrimination laws, requiring state and local governments to treat religious organizations on par with secular organizations (even when that means that the government must support religion), and creating extraordinary exceptions for religions to broadly applicable and religiously neutral laws, the Court has moved incrementally, but manifestly, to expand religious liberties.
This case gives the Court a chance to expand religious liberties once more, or to cabin the expansion. In this case, it’ll likely come down to the use/status distinction. On the one hand, the Court could expand religious liberties by abandoning the use/status distinction altogether, or to blur the distinction by ruling that Maine’s exception applies to the religious private schools’ status (not use). This is not far-fetched. After all, the distinction is relatively new, since Trinity Lutheran, and, as Justice Neil Gorsuch argued in Trinity Lutheran and Espinoza, the line between status and use can be murky.
On the other hand, the Court could cabin the expansion by drawing a hard line between use and status, and ruling that that Maine’s exception applies to religious private schools’ use of the funds (not their religion status). This isn’t far-fetched, either; indeed, the facts support it: Maine introduced evidence that it applies the exemption only to schools that promote a faith or belief system, or teach the material through faith. If so, the Court’s ruling here would buck the Court’s larger trend toward greater religious liberties and a larger role for religion in public life.
Finally, Maine gave the Court a potential off ramp with its standing argument. The Court could rule that the parents lack standing for the reasons Maine says. This seems unlikely, though: Maine pitched this argument in its brief in opposition to the parents’ petition for certiorari, and the Court decided to take the case, anyway.
Wednesday, December 1, 2021
The Supreme Court will hear oral arguments today in Dobbs v. Jackson Women's Health Organization, the case testing Mississippi's ban on abortion after 15 weeks of pregnancy . . . and Roe v. Wade itself. Here's my argument preview, from the ABA Preview of United States Supreme Court Cases, with permission:
In 2018, Mississippi enacted the Gestational Age Act. The Act prohibits doctors from performing an abortion on a woman who is more than 15 weeks pregnant. (In determining the length of a pregnancy, the clock starts running at a woman’s last menstrual period, or “LMP.” As a result, the parties sometimes say that the Act bans abortions after “15 weeks LMP.”)
The Act contains two exceptions. The first one allows doctors to perform an abortion on a woman more than 15 weeks pregnant in the case of a “medical emergency.” The Act defines a “medical emergency” as a situation where, because of a woman’s physical condition or illness, a doctor must perform an abortion in order to save the woman’s life or to prevent “a serious risk of substantial and irreversible impairment of a major bodily function.”
The second exception allows doctors to perform an abortion on a woman more than 15 weeks pregnant in the case of a “severe fetal abnormality.” The Act defines a “severe fetal abnormality” as “a life-threatening physical condition that, in reasonable medical judgment, regardless of the provision of live-saving medical treatment, is incompatible with life outside the womb.”
A doctor who “intentionally or knowingly” violates the Act is subject to license suspension or revocation.
On the same day that the Act took effect, Jackson Women’s Health Organization (JWHO) and one of its doctors sued. JWHO is the only abortion provider in Mississippi; it performs abortions up to the 16th week of a woman’s pregnancy. JWHO argued that the Act violated the fundamental right to abortion under Roe v. Wade, 410 U.S. 113 (1973), and Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833 (1992), and sought an injunction against its enforcement.
The district court granted a permanent injunction, and the United States Court of Appeals for the Fifth Circuit affirmed. This appeal followed.
For almost 50 years, since Roe v. Wade, the Supreme Court has recognized that a woman has a fundamental right to an abortion. For almost 30 years, since Casey, the Court has said that a state can regulate abortion before a fetus is viable outside the womb only insofar as the state regulation does not create an “undue burden” on a woman’s right to an abortion. After viability, a state may ban abortion entirely, but the state still has to provide an exception for the life or health of the woman.
Mississippi’s ban on abortion after 15 weeks of pregnancy runs headlong into this framework, or at least tests its limits. That’s because fetal viability occurs around 22 to 24 weeks of pregnancy, and an outright ban before that time (at 15 weeks of pregnancy) plainly creates an “undue burden,” at least for some women.
Mississippi takes on this framework directly and argues that the Constitution does not protect a woman’s right to abortion. It claims that Roe and Casey “are grievously wrong, unworkable, damaging, and outmoded,” and that the Court should overrule them. The state says that because the Constitution does not protect a right to abortion, the Court should scrutinize its Act under mere “rational basis review,” the low-level, deferential standard that the Court uses to analyze state regulations of economic matters and interests that are not fundamental. Under this standard, Mississippi asserts that the Court should uphold its ban, because the ban is rationally related to the state’s interests in “protecting unborn life, women’s health, and the medical profession’s integrity.”
But even if the Court declines to overturn Roe and Casey and continues to recognize the fundamental right to abortion, the state argues that the Court should reject Casey’s viability benchmark. The state says that the “viability rule has no constitutional basis, it harms state interests, and it produces other severe negative consequences.”
Mississippi offers two alternatives to the viability line: the Court could rule that the Act survives any level of scrutiny (including the most rigid “strict scrutiny”) and put off a determination of what specific level of review applies; or the Court could “clarify the undue-burden standard” and hold that the Act does not create an undue burden. Under this latter option, Mississippi asserts that the Court could interpret the undue-burden standard to mean that a state could prohibit pre-viability abortions if the state restriction does not erect a substantial obstacle to “a significant number of women” seeking abortions. Under this approach to the undue-burden standard, Mississippi contends that its Act does not create an undue burden, because JWHO only performs abortions up to sixteen weeks of pregnancy, and “so the Act reduces by only one week the time in which abortions are available in Mississippi.”
JWHO counters first that the Court should not overturn Roe and Casey. JWHO says that the Court in Casey already considered all the arguments that Mississippi makes for overturning Roe—and rejected them. As a result, it claims that “Casey is precedent on top of precedent,” and that the case for retaining Roe and Casey has only grown stronger in the nearly 30 years since Casey, and the Court’s repeated reaffirmations of the fundamental right to pre-viability abortion.
Moreover, JWHO asserts that there is no reason to revisit Roe and Casey or the viability benchmark. JWHO says that a woman today still has “the personal autonomy and bodily integrity interests that underpin” the fundamental right to abortion, and that the viability line protects those interests “in a principled and workable way.” JWHO also contends that nothing has changed in the fundamental liberty interest that Roe and Casey protect. It says that if anything, “the years since Casey have only reinforced the importance of access to legal abortion for gender equality.” For all these reasons, JWHO contends that there is no reason to revisit Roe and Casey or the viability benchmark.
JWHO argues that Mississippi’s proffered alternatives to the viability benchmark are unworkable, and only “confirm that the Court was right in Casey to retain the viability line.” It says that lower courts could not administer any standard other than the “undue burden” standard “against the inevitable cascade of state abortion bans that would follow if the Court” changes the standard. And it claims that the state’s version of the “undue burden” standard would, as a practical matter, eviscerate Roe and Casey.
(The government weighs in to support JWHO and makes substantially similar arguments.)
Dobbs is almost certainly the most important case this Term, and probably the most important case in the last several Terms, or even decades. That’s because it puts front and center a nearly 50-year-old precedent that is a principal focal point in constitutional law and politics. Political conservatives have fought for decades to gain a majority on the Court that is willing to overturn Roe v. Wade, while political progressives have fought to preserve it. At the same time, Roe v. Wade has served as an organizing principle in national, state, and even local politics for both the right and the left.
That said, Roe really is a super-precedent. The Court has reaffirmed it time and again, and flatly rejected strong calls to overturn it, including in Casey, where the Court laboriously considered, and rejected, all the arguments against it. In fact, the Court reaffirmed the Casey framework twice in the last five years, first in Whole Woman’s Health v. Hellerstadt, 136 S. Ct. 2292 (2016), and just last year in June Medical v. Russo. 140 S. Ct. 2103 (2020). Those cases were close, to be sure, but the rulings still stand.
But with Justice Amy Coney Barrett’s replacement of Justice Ruth Bader Ginsburg (and Justice Brett Kavanaugh’s earlier replacement of Justice Anthony Kennedy), the Court today has six justices who would almost certainly rule that the Constitution does not protect a fundamental right to abortion. Still, that doesn’t ensure that the Court will rule that the Constitution does not protect a fundamental right to abortion. That’s because two or more of those six may vote to uphold Roe and Casey under principles of stare decisis, even if they disagree with Roe and Casey on the merits. (Chief Justice John Roberts already telegraphed some support for stare decisis in this context when he famously voted to overturn Louisiana’s abortion restrictions in June Medical based on the Court’s ruling in a similar case in Hellerstadt—even though he dissented in Hellerstadt. It’s not obvious that his approach to stare decisis in June Medical will carry over to Roe and Casey, however.)
If so, Mississippi is ready with its two alternatives. These would allow the Court to validate the fundamental right to abortion but abandon the undue-burden test, the viability line, or both. The Court could nominally affirm Roe and maybe even Casey, while in reality taking large chunks out of them. Given the Court’s incremental approach to overturning other long-standing precedents, this is a real possibility.
One final note. The Court already this Term heard oral arguments in two other critical abortion cases, U.S. v. Texas and Whole Woman’s Health v. Jackson, both arising out of Texas’s unprecedented restriction on abortion. Those cases are obviously related to this one insofar as they address a state’s restriction on the fundamental right to abortion. But the core issue in those cases is procedural, not (necessarily) substantive—whether the plaintiffs can sue to stop Texas from implementing the law.
Wednesday, November 10, 2021
The Supreme Court will hear arguments this morning in a case testing Austin's sign code, which allows digitization of on-premises signs, but not of off-premises signs. Here's my preview, from the ABA Preview of United States Supreme Court Cases, with permission:
Does Austin’s city code, which distinguishes between on-premises signs (which may be digitized) and off-premises signs (which may not), constitute an impermissible content-based regulation of speech, in violation of the First Amendment?
Case at a Glance
The Austin Sign Code allows sign owners to digitize their on-premises signs (those that are located at the same site as the business or activity to which they relate). But it forbids owners from digitizing their off-premises signs (those that are not located at the same site as the business or activity to which they relate). Applying those regulations, the City denied permission to two corporations to digitize their off-premises signs.
Government speech regulations that are based on the content of the speech are subject to strict scrutiny, and are presumptively invalid, under the First Amendment. But it’s not always clear when a government regulation is content based. The Court sought to clarify this in Reed v. Town of Gilbert, 576 U.S. 155 (2015). In Reed, the Court held that a government speech regulation is based on content if the plain text of the regulation discriminates by the content of speech, or if the government cannot justify the regulation without reference to the content. Applying the first part of test, the Fifth Circuit held that Austin’s sign regulations were content based, because a person would have to read the sign (and its content) in order to determine whether the sign was on premises or off premises.
Is Austin’s distinction between on-premises signs and off-premises signs facially unconstitutional under Reed?
The City of Austin regulates signs within its jurisdiction based on their location. Under City regulations, the owner of an “on-premises” sign—a sign that advertises a business or activity that is located on the site where the sign is located—can digitize the sign. But the owner of an “off-premises” sign—a sign that “advertises a business, person, activity, good, products, or services not located on the site where the sign is installed”—cannot. Austin says that these rules protect the aesthetic value of the City and protect public safety.
In April and June 2017, Reagan National Advertising of Austin and Lamar Advantage Outdoor Company filed separate applications to digitize their off-premises billboards. The City denied the applications, citing its sign policy.
Reagan sued the City in state court. Reagan argued that Austin’s sign policy amounted to content-based discrimination of speech, and that it was facially unconstitutional. Austin removed the case to federal court, based on the federal constitutional question.
Then, in August 2017, Austin amended its Sign Code. The amended Code defines an “off-premise sign” as “as sign that displays any message directing attention to a business, product, institution, or other commercial message which is generally conducted, sold, manufactured, produced, offered, or occurs elsewhere than on the premises where the sign is located.” The regulations define an “on-premise sign” as “a sign that is not an off-premise sign.”
The amended Code also includes a new provision, dealing with non-commercial signs. It reads:
(A) Signs containing noncommercial speech are permitted anywhere that signs regulated by this chapter are permitted, subject to the same regulations applicable to the type of sign used to display the noncommercial message. No provision of this chapter prohibits an ideological, political, or other noncommercial message on a sign otherwise allowed and lawfully displayed under this chapter.
(B) The owner of any sign allowed and lawfully displayed under this chapter may substitute noncommercial speech in lieu of any other commercial or noncommercial speech, with no permit or other approval required from the City solely for the substitution of copy.
(C) This section does not authorize the substitution of an off-premise commercial message in place of a noncommercial or on-premise commercial message.
In October 2017, Lamar joined Reagan’s suit as a plaintiff. The district court ruled for the City, but the United States Court of Appeals for the Fifth Circuit reversed. This appeal followed.
The Court has long held that government regulations of speech that discriminate based on the content of the speech are subject to strict scrutiny and presumptively invalid. But determining whether a speech regulation discriminates based on content turns out to be much harder than it would seem. For decades, lower courts struggled with this.
In particular, in order to assess the question, lower courts before 2015 applied two different, and sometimes inconsistent, tests to determine whether a law restricted speech based on its content. One test looked to the plain text of a law or regulation and asked whether it discriminated on its face, based on the content or subject-matter of the speech. The other test looked to the purpose of the law or regulation and asked whether the government could justify its restriction “without reference to the content of [the] speech.” Hill v. Colorado, 530 U.S. 703 (2000).
Then, in 2015, the Court sought to clarify the confusion. The Court in Reed v. Town of Gilbert 135 S. Ct. 2218 (2015), adopted a two-part test to determine when a speech regulation is based on content. First, courts must read the text of the regulation to determine whether it distinguishes between speech based on its content, or message. Under Reed, a speech regulation that discriminates based on content on its face is automatically subject to strict scrutiny and presumptively invalid. This holds even if the regulation is based on a content-neutral purpose.
Next, if the facial text of the regulation is content-neutral, courts must examine the purpose of the regulation. If the regulation “cannot be ‘justified without reference to the content of the regulated speech,’” or if the government adopted the regulation “because of disagreement with the message [the speech] conveys,” then the court must treat the regulation as content based. Such a regulation is subject to strict scrutiny, and it is presumptively invalid.
The parties frame their arguments around Reed.
Austin argues first that its distinction between on-premises signs and off-premises signs is content neutral on its face. The City says that its distinction draws on a long, well recognized, and validated (even “ubiquitous”) tradition in zoning and sign-code practices, in which all levels of government distinguish in different ways between on-premises and off-premises signs. It claims that this traditional distinction is based upon the substantial government interests in regulating off-premises signs (like highway billboards), which pose especial traffic, safety, and even aesthetic concerns. Austin contents that digital billboards only add to those concerns. On the other hand, the City claims that on-premises signs are generally smaller, less distracting, and well-integrated into the existing property; it says that they also “implicate the compelling interest of businesses and property owners to advertise their goods and services on their own property.”
Austin contends that laws and regulations distinguishing between off-premises and on-premises signs, including its own, are content neutral. According to the City, that’s because the distinction is based on a sign’s location, not its content, subject, or viewpoint. It says that its sign regulation “singl[es] out no subject or viewpoint as a regulatory target.”
Austin argues next that the Fifth Circuit wrongly applied Reed in striking this provision of its Sign Code. The City claims that the lower court interpreted Reed to require a “read the sign” test, where a sign regulation is content-based if a person must read the sign itself in order to know if the regulation applies. But Austin contends that Reed does not support this test. It points to Justice Samuel Alito’s concurrence in Reed, joined by Justices Anthony Kennedy and Sonia Sotomayor, which provided examples of “some rules that would not be content based,” including “[r]ules distinguishing between signs with fixed messages and electronic signs with messages that change” and “[r]ules distinguishing between on-premises and off-premises signs”—exactly the rules at issue in this case.
Moreover, Austin contends that Reed’s reasoning itself refutes the Fifth Circuit’s read-the-sign test. The City claims that Reed relied on cases holding that laws were content neutral even when a person would have to read the sign to determine the law’s content-neutrality. Austin claims that Court cases instead turn on whether speech regulations “single out topics or subjects for distinct regulations” and thus “favor or disfavor particular topics or viewpoints.” The City says that the Fifth Circuit’s rule, which “would subject virtually all distinctions in sign regulation to strict scrutiny,” would perversely lead to less speech, because government officials, to avoid this, “may regulate with a far broader brush, thus suppressing more speech.” Alternatively, the City claims, courts would dilute strict scrutiny in order to uphold sensible laws (“like house-number identifications or event-related sign regulation”), thus undermining the law and creating further uncertainty.
Finally, Austin argues that its sign regulations are subject to intermediate scrutiny, and that they pass. It claims that because its regulations are content neutral, the proper test is intermediate scrutiny, not strict scrutiny. And it says that its regulations are sufficiently tailored to meet its important interests in safety and aesthetics. Alternatively, the City claims that because it validly rejected the plaintiffs’ requests to digitize their signs under the commercial-speech doctrine (which also uses intermediate scrutiny), the plaintiffs can only argue that the regulations are unconstitutionally overbroad (with respect to commercial speech). Austin says that the plaintiffs never raised this argument, and the evidence doesn’t support it.
The government weighs in as amicus to support Austin, emphasizing many of the same points. In particular, the government echoes the City’s arguments that its regulations are content neutral, and that they easily satisfy intermediate scrutiny. The government also claims that any “constitutional infirmities” in the regulations do not justify striking the regulations on their face.
The plaintiffs counter that Austin’s regulations are content based on their face, because they “depend on the communicative content of the signs—specifically whether they advertise activities on the premises . . . .” They point to the language of the regulation defining off-premises signs: those signs that “advertise a business, person, activity, goods, products, or services not located on the site where the sign is installed.” They say that this definition turns on a sign’s content. Moreover, the plaintiffs contend that the regulations’ consideration of the location of the signs (a concededly content-neutral consideration) does not save them; instead, it merely makes the regulations a content-based restriction on speech, not an all-out ban. According to the plaintiffs, the regulations still turn on the content of a sign.
The plaintiffs assert that this interpretation reflects the correct reading of Reed. That case, they say, “made clear that a law may be subject to strict scrutiny either because it draws facial distinctions based on content or because it is motivated by an impermissible content-based purpose.” The plaintiffs contend that Austin’s regulations fall squarely into the first category. They claim that Justice Alito’s examples are not to the contrary: a regulation that defines “off-premises” by its distance from a building, for example, is still content neutral; but a regulation that also depends on a sign’s content (as here) is content based. Contrary to the City, the plaintiffs contend that this is consistent with the Court’s prior opinions, and will not lead to courts striking laws that regulate speech based on its medium. They write, “A regulation is content-based when it depends on the content of the message expressed through a particular medium, not when it regulates the medium itself.”
Having established that strict scrutiny applies, the plaintiffs contend that Austin’s regulations fail. They say that even assuming that Austin’s interests in safety and protecting aesthetics are compelling government interests, the regulations are not narrowly tailored, because Austin “has provided no reason to think that digitizing the limited number of . . . off-premises signs would be more problematic than the unrestricted digitization of on-premises signs, which the [City] currently permits.” In other words, the plaintiffs say that Austin’s interests apply equally to on-premises signs, but Austin does not similarly restrict on-premises signs. The plaintiffs assert, contrary to the City, that this does not mean that all other premises regulations must fail, only that they cannot distinguish based on the content of the sign (as Austin’s do).
The plaintiffs argue next that even if the Court were to apply intermediate scrutiny, Austin’s regulations would fail. They say that the City has better tailored ways to achieve its interests in safety and aesthetics. For example, they contend that the City could simply “limit the frequency of message changes for both on-premises and off-premises signs” in order to meet the City’s concern about “periodically changing” off-premises signs that could threaten safety and aesthetics.
Finally, the plaintiffs argue that the City is wrong to say that their claims fail under the commercial-speech doctrine. The plaintiffs contend that their signs contain both commercial and non-commercial speech, and that the challenged regulations distinguish between off-premises and on-premises signs for both commercial speech and non-commercial speech. Based on these two facts, the plaintiffs assert that the commercial-speech test simply does not apply. In any event, for the same reasons as above, the plaintiffs claim that the regulations fail the commercial-speech test, intermediate scrutiny.
While Reed sought to clarify the approach that courts must use in determining whether a government speech regulation is content based, the case instead generated mass confusion among the lower courts and often led to results that are inconsistent with the Court’s own pre-Reed precedents.
As most relevant here, lower courts have adopted very different approaches to Reed’s first question, whether the government regulation is content based on its face. For example, while the Fifth Circuit has adopted a broad understanding of Reed, reflected in its read-the-sign approach, other circuits have adopted narrower understandings that might tolerate regulations like Austin’s.
The confusion and uncertainty around Reed maybe shouldn’t surprise us. After all, the Reed Court itself seemed a little uncertain about its ruling. That’s why Justice Alito wrote his concurrence, joined by Justices Kennedy and Sotomayor, providing a list of longstanding and traditional content-neutral speech regulations that Reed would not overturn. Among these, Justice Alito explicitly included premises regulations, like Austin’s. The fact that the Fifth Circuit expressly distinguished Austin’s actual premises regulations from Justice Alito’s idealized premises regulations only further illustrates the confusion over Reed’s first question.
This case will (hopefully) provide some clarity and guidance. Still, this is no easy feat. The Court can readily see how a fixed, determinate rule, like the Fifth Circuit’s read-the-sign rule, may give courts clear guidance, but could also apply in an overly rigid way to strike speech regulations that don’t really have anything to do with the content of the speech. At the same time, the Court also understands that a more flexible rule—for example, one that looks to the purpose behind a government speech regulation—may more accurately reveal a government’s intent to discriminate by content, but is also much harder to measure with certainty, and may invite governments to implement content-based regulations under the guise of facial content neutrality.
Some of the amici offer suggestions. For example, the Knight Center and Professor Genevieve Lakier suggest that the Court adopt a more nuanced approach, in the form of a multi-factor test. Under this approach, courts would determine whether a regulation is content based by looking at the two questions in Reed, along with several other considerations that can help reveal when a government regulation actually discriminates by content. Look for the Court to road test these ideas, and others, at oral argument, as it seeks to clarify Reed and bring determinacy to the doctrine.
Monday, November 8, 2021
The Supreme Court will hear oral arguments this morning in a case testing the interplay between the state secrets privilege and the Foreign Intelligence Surveillance Act. Here's my argument preview, from the ABA Preview of United States Supreme Court Cases, with permission:
Does Section 1806(f) of the Foreign Intelligence Surveillance Act, which requires certain judicial procedures when the government seeks to protect evidence in certain cases in the national security, displace the state-secrets privilege?
Case at a Glance
For at least 14 months between 2006 and 2007, the FBI operated a surveillance program within the Muslim community in Southern California in order to identify potential terrorists. Members of the community sued, arguing that the program and its agents engaged in illegal searches, and that the program and its agents illegally targeted members of the community because of their religion. The government moved to dismiss the claims under the state-secrets privilege.
The state-secrets privilege is an evidentiary privilege with constitutional underpinnings that allows the government to move to block certain evidence that could threaten the national security. At the same time, Section 1806(f) of the Foreign Intelligence Surveillance Act prescribes a judicial process in certain circumstances for determining whether evidence could threaten the national security. This case tests the interplay of the state-secrets privilege and Section 1806(f).
Does Section 1806(f) displace the state-secrets privilege?
For at least 14 months between 2006 and 2007, the FBI operated a surveillance program in Southern California called Operation Flex. According to the FBI, the purpose of the program “was to determine whether particular individuals were involved in the recruitment and training of individuals in the United States or overseas for possible terrorist activity.” According to the plaintiffs, the “central feature” of the program was to “gather information on Muslims.”
As part of the program, the FBI engaged Craig Monteilh to be a confidential informant. Monteilh’s supervisors, FBI Special Agents Kevin Armstrong and Paul Allen, instructed him to gather information on Muslims, particularly religious Muslims and individuals who might influence young Muslims.
In July 2006, Monteilh started attending the Islamic Center of Irvine (ICOI) in order to gather information. Monteilh attended daily prayers, classes, and special events; declared his desire to convert to Islam; and adopted the name Farouk al-Aziz. He also visited at least seven other mosques in Orange County, and infiltrated the local Muslim community in other ways, too.
On instructions from Armstrong and Allen, Monteilh secretly recorded nearly all of his interactions and took extensive hand-written notes. Monteilh ultimately gave the FBI “hundreds of phone numbers; thousands of email addresses; background information on hundreds of individuals; hundreds of hours of video recordings of the interiors of mosques, homes, businesses, and associations; and thousands of hours of audio recordings of conversations, public discussion groups, classes, and lectures.”
In early 2007, Armstrong and Allen instructed Monteilh to start asking more direct questions about the community’s willingness to engage in violence. Monteilh told several members of the community that he believed that he had a duty as a Muslim to take violent action and that he had access to weapons.
Several IOCI members reported Monteilh to community leaders, and one of them, in turn, called the FBI and instructed concerned members to call the Irvine Police Department. The IOCI sought and received a restraining order against Monteilh.
In October 2007, the FBI released Monteilh. His identity as an informant was revealed in February 2009, as part of a criminal prosecution for naturalization fraud of one of the IOCI member who initially reported Monteilh. The FBI, Monteilh, and others subsequently confirmed that Monteilh worked for the FBI. While the FBI disclosed some information about Monteilh’s activities, it maintains that “certain specific information” must remain secret in the interest of national security.
In September 2011, three members of the local Muslim community sued as a putative class. (Plaintiff Sheikh Yassir Fazaga was an imam at the Orange County Islamic Foundation; plaintiffs Ali Uddin Malik and Yasser AbdelRahim are practicing Muslims who regularly attend services at the ICOI.) They alleged that the FBI and its agents violated a variety of constitutional and statutory provisions, falling into two broad categories: unconstitutional search claims and religious-freedom claims. The plaintiffs’ religion claims allege that the defendants violated the First Amendment Religion Clauses, equal protection, the Privacy Act, the Religious Freedom Restoration Act (RFRA), the Foreign Intelligence Surveillance Act (FISA), and the Federal Tort Claims Act (FTCA).
The government moved to dismiss the case on a variety of grounds. As relevant here, the government invoked the state-secrets privilege and moved to dismiss the religion claims (but not the search claims) on that ground. (The state-secrets privilege protects evidence that, if revealed, could threaten the national security.) The government argued that the religion claims could not proceed without risking disclosure of certain evidence protected by the privilege. In support of its claim, the government submitted public and classified declarations by Department of Justice leaders.
The district court dismissed the plaintiffs’ FISA claim against the government on other grounds, and allowed the plaintiffs’ FISA claim against individual agents to go forward.
In a separate order addressing the government’s motion to dismiss under the state-secrets privilege, the court dismissed all of the plaintiffs’ remaining religion claims and the Fourth Amendment search claim (even though the government did not seek dismissal of the search claim under the state-secrets privilege). In so ruling, the court relied “heavily” on the government’s classified declarations and supplemental memorandum.
The court did not use the procedure for review of the evidence set out in Section 1806(f) of the FISA, which prescribes an in camera, ex parte process for courts to use when the government claims that “disclosure [of particular evidence] in a case or an adversary hearing would harm the national security of the United States.” The court said that Section 1806(f) did not apply to non-FISA claims. (Remember that the government moved to dismiss only the non-FISA religion claims based on the state-secrets privilege. The court addressed the FISA claims separately.)
The Ninth Circuit reversed. The appellate court held that the Section 1806(f) procedure “displaces the dismissal remedy of the common law state secrets privilege as applied to electronic surveillance generally.” It ruled that the district court therefore should have used the Section 1806(f) procedures to evaluate the evidence and determine whether the state-secrets privilege applied. It directed the lower court, on remand, to apply Section 1806(f)’s ex parte and in camera procedures to “review any ‘materials relating to the surveillance as may be necessary,’ including material over which the Attorney General asserted the state secrets privilege, to determine whether the electronic surveillance was lawfully authorized and conducted.” The Ninth Circuit wrote that the lower court, in making this determination under Section 1806(f), could disclose to the plaintiffs “portions of the application, order, or other materials relating to the surveillance” if disclosure was “necessary to make an accurate determination.”
The FBI then brought this appeal.
Section 1806(f) of the FISA directs a court to apply certain procedures whenever the government claims that disclosure of evidence in certain types of cases could threaten the national security. In particular, the Section requires the court to “review in camera and ex parte the application, order, and such other materials relating to the surveillance as may be necessary to determine whether the surveillance of the aggrieved person was lawfully authorized and conducted.” The Section goes on to say that “the court may disclose to the aggrieved person, under appropriate security procedures and protective orders, portions of the application, order or other materials relating to the surveillance only where such disclosure is necessary to make an accurate determination of the legality of the surveillance.”
The state-secrets privilege, in contrast, is an evidentiary privilege, with constitutional, separation-of-powers roots, that allows the government to protect evidence in proceedings when the government certifies that the evidence, if revealed, could threaten the national security. At the outside, the privilege allows the government to move to dismiss an entire case, if the putatively protected evidence is so central to the case that the case cannot move forward without it.
The case asks whether the Section 1806(f) process “displaces” the state-secrets privilege. This question, in turn, depends on the scope and operation of the state-secrets privilege and the interplay between the two.
The government argues first that the Ninth Circuit erred in ordering the district court to apply the Section 1806(f) procedure in the first place. The government points out that Section 1806(f) is available in only three limited situations defined in the Section itself, and that none of these includes a civil action like the plaintiffs’ case. The government says that the Ninth Circuit wrongly shoehorned this case into two of those three situations. First, the government contends that the Ninth Circuit erroneously considered the government’s motion to dismiss the case as notice of the government’s intent “to enter into evidence or otherwise use or disclose” the privileged information “against an aggrieved person,” thus satisfying one of the three situations that trigger a Section 1806(f) process. The government says that this misconstrues the state-secrets privilege, which is designed to protect information, not signal its disclosure and use. Second, the government asserts that the Ninth Circuit wrongly considered the plaintiffs’ request for relief in its civil suit as a “motion or request * * * to discover, obtain, or suppress evidence or information obtained or derived from electronic surveillance,” another of the three situations that trigger a Section 1806(f) process. The government contends that the plaintiffs’ prayer for relief in their civil case is simply not a “motion.”
Moreover, the government argues that the Ninth Circuit erred in applying the Section 1806(f) procedure. The government claims that the Ninth Circuit “reasoned that Section 1806(f) provides a mechanism for litigating a civil plaintiff’s claims to final judgment.” (Remember that the Ninth Circuit’s remand order directed the district court to “review any ‘materials relating to the surveillance as may be necessary,’ including material over which the Attorney General asserted the state secrets privilege, to determine whether the electronic surveillance was lawfully authorized and conducted.”) But the government says that “nothing in Section 1806(f) suggests that it was intended to be used to litigate, ex parte and in camera, the merits of a case.” Instead, the government contends that a Section 1806(f) proceeding culminates only in a grant or denial of a motion related to the admissibility of evidence, not a “review any ‘materials relating to the surveillance as may be necessary,’ including material over which the Attorney General asserted the state secrets privilege, to determine whether the electronic surveillance was lawfully authorized and conducted.”
The government argues next that Section 1806(f) does not displace the state-secrets privilege. It says that nothing in FISA even mentions the state-secrets privilege, much less suggests that FISA displaces it. And it says that Section 1806(f) is perfectly compatible “with the continued vitality of the privilege.” The government contends that even if there were any doubt, the government should interpret Section 1806(f) as not displacing the privilege.
Finally, the government argues that the state-secrets privilege has constitutional roots and is an essential aspect of presidential power. It claims that any congressional effort to displace or abrogate the privilege must therefore include a clear statement, and neither Section 1806(f) nor any other provision of FISA does.
The plaintiffs counter first that the state-secrets privilege does not support dismissal of their case. They contend that the state-secrets privilege, like other evidentiary privileges, supports the exclusion of evidence from a case so that no party can use it. But the plaintiffs say their religion claims don’t depend on secret evidence. And in any event, they contend that the government seeks both to exclude secret evidence and to use that evidence in its own defense in support of dismissal. They claim that the government’s effort both to exclude and to use the evidence is inconsistent with the very nature of a privilege (which is designed to entirely exclude evidence from a case).
Moreover, they assert that the government, in so arguing, improperly conflates the state-secrets evidentiary privilege with a categorical bar to litigation, which the Court has only applied in “government-contracting lawsuits where the “very subject matter’ of the suit is secret.” The plaintiffs say that they never contracted with the government, and never assumed the risk that they would forfeit judicial review of any contract, and so the categorical bar does not apply. The plaintiffs contend that the district court improperly dismissed their case, and that it should have simply excluded any privileged evidence and allowed the case to move forward.
The plaintiffs argue next that even if the state-secrets privilege would support dismissal, Section 1806(f) displaced it in cases involving electronic surveillance. They contend that Section 1806(f) applies here, because the government seeks to “use” secret information in its defense to the plaintiffs’ religion claims, and because the plaintiffs are “aggrieved persons” who asked, through their prayer for relief in their complaint, to “obtain” information that the government illegally gathered. Contrary to the government, they say that they therefore satisfy the threshold requirements for Section 1806(f).
The plaintiffs claim that the government’s arguments to the contrary are not supported by Section 1806(f)’s plain text, which, they say, is not limited to procedural motions. Moreover, they contend that the government’s reading would render meaningless Section 1810 of FISA, which creates a civil damages remedy for victims of unlawful electronic surveillance. They explain: “Defendants’ argument would leave the government free to win dismissal of virtually any Section 1810 suit simply by asserting that the underlying conduct was secret—whether or not it was lawful—thus nullifying the civil damages remedy Congress created to ensure surveillance remains constrained by law.”
The plaintiffs argue, contrary to the government, that FISA does, in fact, clearly displace the state-secrets privilege. They say that while FISA does not use the phrase “state secrets privilege,” it nevertheless refers to the privilege when it uses the phrase “national security,” which raises exactly the same concerns. The plaintiffs contend that this poses no constitutional problem, as the government argues, because Congress has clear authority to displace the state-secrets privilege as part of its authority to regulate surveillance and establish evidentiary rules for civil litigation over that surveillance. Moreover, the plaintiffs assert that displacement raises no constitutional problem for individual government agents, because FISA itself, in Section 1806(g), requires that any remedies must be “in accordance with the requirements of law,” including the Constitution.
Finally, the plaintiffs argue that the government’s position raises serious constitutional problems. They say that the government, by seeking both to protect secret information and to use that information in its own defense, effectively deprives the plaintiffs of “any judicial determination of whether the Government broke the law.” This aggrandizes the power of the executive at the expense of the judiciary and Congress, and leaves the plaintiffs without a judicial remedy.
On the face of it, this case asks an extremely narrow and hyper-technical question—whether Section 1806(f) of the FISA displaces the state-secrets privilege. But in order to answer that question, the Court will likely have to address a much bigger issue, that is, the scope and operation of the state-secrets privilege.
In particular: How should courts treat and evaluate the government’s assertion of the state-secrets privilege over information that the government obtained through surveillance?
The government adopts a muscular view of the privilege. It emphasizes the privilege’s constitutional roots; argues that Congress cannot displace it or channel its operation through ordinary legislation like Section 1806(f); and contends that the courts must broadly defer to the government’s assertion of the privilege, and even dismiss cases when the government claims that they cannot be litigated without revealing privileged information that could threaten the national security. In other words, the government claims that courts must take the government’s say-so when it invokes the privilege, based only on the government’s affidavits in support, and without independently assessing—even ex parte and even in camera—the putatively protected material. And because of the privilege’s constitutional roots, the government claims that Congress cannot displace, or even channel, this deference through ordinary legislation. At risk of stating the obvious, the government’s interpretation of the privilege puts a tremendous amount of power in the hands of the executive branch to conceal particular evidence and even shut down cases entirely. (The government doesn’t have a particularly reassuring track record in this regard. In the very case where the Court established the modern privilege, United States v. Reynolds, 345 U.S. 1 (1953), the government turned out to have misled the courts about its need to invoke the privilege to protect the national security.)
The plaintiffs, for their part, proffer a much narrower view of the privilege. They emphasize the privilege’s common-law roots, and argue that Congress can, and did, displace it through Section 1806(f). But this approach could lead to the disclosure of secret information, even if only to a judge, alone in chambers, exercising discretion in a Section 1806(f) process, and thus threaten national security. This approach could also lead to the disclosure of secret information to other parties, as a judge might determine necessary, even further threatening national security.
The Court may have to decide between these approaches (or a third, middle way) and address the scope of the privilege for the first time since Reynolds.
I say “may” because the Court has an off ramp, maybe even two, and could dodge harder questions about the scope of the state-secrets privilege, at least for now. For one, the Court could simply rule that the plaintiffs’ case does not qualify for the Section 1806(f) process, as the government argues, and dodge the harder question whether Section 1806(f) displaces the state-secrets privilege. If so, the Court could simply reverse the Ninth Circuit and remand for further proceedings (which would presumably include consideration of the government’s assertion of the state-secrets privilege). For a second, the Court could rule on the displacement question without fully expounding the state-secrets privilege. If so, the Court could rule on the merits and, if it ruled for the government, remand the case for further proceedings (which again would presumably include consideration of the government’s assertion of the state-secrets privilege). Either way, the Court could avoid the harder questions about the scope of the state-secrets privilege. But either way, the case would almost certainly come back to the Court.
One final note. This is one of two cases this Term to raise issues related to the state-secrets privilege. (That’s extraordinary, by the way. But it’s also much needed, given that the Court hasn’t said anything serious about the privilege since Reynolds.) The other case is United States v. Zubaydah, argued on October 6, and previewed in the last issue of Preview. Zubaydah raises different questions about the privilege. But between the two cases, the Court this Term has a singular opportunity to define the scope of the privilege and state determinatively how it shall operate in the courts.
Tuesday, November 2, 2021
The Supreme Court will hear oral arguments tomorrow in a critical Second Amendment case testing New York's requirement that an applicant for a public carry license demonstrate "proper cause." Here's my argument preview, from the ABA Preview of United States Supreme Court Cases, with permission:
Case at a Glance
Robert Nash and Brandon Koch both had licenses under New York law to carry a firearm outside the home for hunting and target shooting. They both asked licensing officers to expand their licenses to permit them to carry their firearms for self-defense. In each case, the licensing officer declined, although the officer permitted Koch to carry a firearm when traveling to and from work. Nash, Koch, and the New York State Rifle & Pistol Association sued, arguing that the denials and limitations violated the Second Amendment.
The Supreme Court has ruled in recent times that the Second Amendment protects an individual right to keep arms within the home for self-defense. But at the same time, it also said that the Second Amendment does not prohibit longstanding, traditionally accepted regulations of firearms. This case tests whether New York’s “proper cause” requirement for carrying a firearm outside the home for self-defense falls within those longstanding, traditionally accepted regulations, and, if not, whether it sufficiently serves New York’s interests in reducing crime and gun violence.
Does New York’s “proper cause” requirement for carrying a firearm outside the home for self-defense fall within the longstanding, traditionally accepted regulations that categorically comport with the Second Amendment, and, if not, does it sufficiently serve New York’s interests?
Under New York law, a person qualifies for a license to carry a concealed firearm outside the home if the person can show that “proper cause exists” for the license. The New York Penal Code does not define “proper cause,” but state courts have interpreted it to mean that an applicant must “demonstrate a special need for self-protection distinguishable from that of the general community or of persons engaged in the same profession.” Klenosky v. N.Y. City Police Department, 428 N.Y.S.2d 256 (N.Y. App. Div. 1980). In other words, an applicant must show a “particularized” need to carry a gun, not just a “generalized desire.”
New York courts have developed “a substantial body of law instructing licensing officials on the application of [the proper-cause] standard.” Kachalsky v. County of Westchester, 701 F.3d 81 (2d Cir. 2012). The standard “requires consideration of all relevant factors,” including “the occupation, the background and the place of work” of the applicant
In most counties, a state-court judge acts as the licensing official and makes the determination; in New York City and two surrounding counties, a local police commissioner or a sheriff serves this function. The licensing official must consider all relevant factors bearing on the applicant’s “proper cause,” including the applicant’s occupation, background, and place of work, and the location where the applicant proposes to carry. An applicant can submit evidence in support of their applications; they can even submit new information to establish eligibility after a denial. An unsuccessful applicant can appeal the denial to state court.
Robert Nash and Brandon Koch both had licenses under New York law to carry a firearm outside the home for hunting and target shooting. They both asked licensing officers to lift those restrictions and to expand their licenses to permit them to carry their firearms for self-defense. Nash cited a spate of recent robberies in his neighborhood and his firearm safety training. Koch cited “his extensive experience in the safe handling and operation of firearms and the many safety training courses he had completed.”
After holding hearings, the licensing officer in each case declined to remove the restrictions, but clarified that Nash and Koch could carry arms for self-defense in certain locations. In particular, the officer wrote “that the restrictions DO ALLOW you to carry concealed [firearms] for purposes of off road back country, outdoor activities similar to hunting, for example fishing, hiking & campaign etc.” In addition, the officer wrote to Nash “that the restrictions are intended to prohibit” Nash from carrying arms for self-defense in places “typically open to and frequented by the general public.” The officer wrote to Koch that he “may also carry to and from work,” suggesting that Koch demonstrated adequate individualized safety concerns for a limited license to carry.
Nash, Koch, and the New York State Rifle & Pistol Association sued, arguing that New York’s standard violated the Second Amendment. The district court dismissed the case, and the United State Court of Appeals for the Second Circuit summarily affirmed. This appeal followed.
The Supreme Court has only ruled twice in recent times on the Second Amendment. In the first case, District of Columbia v. Heller, 554 U.S. 570 (2008), the Court ruled that the Second Amendment protects an individual fundamental right to keep a firearm in the home for self-defense. In the second case, McDonald v. City of Chicago, 561 U.S. 742 (2010), the Court held that under the Fourteenth Amendment this right applied equally against the states.
While the Court in these cases held that the Second Amendment includes an individual right to keep a firearm in the home, it did not say much about the scope of that right, or the range of permissible government regulations. The Court only said that the right, like other fundamental rights, is “not unlimited,” and that nothing in the Second Amendment would call into question “longstanding measures” like laws forbidding firearms in sensitive places, restrictions on the commercial sale of firearms, bans on dangerous and unusual weapons, and laws that prohibit certain people (like felons and people with mental disabilities) from possessing firearms.
The lower courts picked up on the focus on text, history, and tradition in Heller and McDonald and coalesced around a two-part test. The first part asks “whether the regulated activity falls within the scope of the Second Amendment.” Ezell v. City of Chicago, 846 F.3d 888 (7th Cir. 2017). A law does not infringe on the Second Amendment if it falls within one of the “presumptively lawful regulatory measures” identified in Heller (and mentioned above), if it regulates conduct that is historically outside the scope of the Second Amendment, or if it falls within a category of longstanding, accepted regulations of firearms. This step requires courts to examine the history and tradition of government regulation of the activity in question.
If the historical evidence suggests that the regulated activity is not categorically unprotected by the Second Amendment, or if the historical evidence is inconclusive, then the courts determine whether the government regulation (the means) sufficiently serve the government’s purpose (the ends). For those laws that regulate the “core” of the Second Amendment (the right to keep and bear arms within the home for self-defense), the courts apply “strict scrutiny,” the most rigorous test known to constitutional law, and almost certainly strike the law. For those regulations that fall outside the “core” of the Second Amendment (laws that touch on the right to keep and bear arms, but don’t directly prohibit a person from keeping a firearm in the home for self-defense), courts apply “intermediate scrutiny.” Under this test, the government regulation must be substantially related to an important government purpose. Some regulations pass; others don’t.
Against this backdrop, the plaintiffs argue first that the Second Amendment includes a fundamental right to carry a firearm outside the home for self-defense, and that New York’s “proper cause” standard violates this right. In support, the plaintiffs point to the plain text of the Second Amendment. They say that the text protects the right not only “to keep” arms in the home, but also to “bear arms” outside of the home. They contend that this makes sense, given that their need for self-defense extends outside the home.
The plaintiffs also point to the history of the Second Amendment. They assert that the English right to bear arms (which spawned the Second Amendment) protected a right “to carry ordinary arms for a range of lawful purposes, chief among them self-defense.” They claim that this right only grew when it migrated to the United States. They contend that “[c]arrying arms was commonplace in early America, and it was regarded as an exercise of the fundamental, inherent right to every individual to defend himself.” The plaintiffs say that our experience after the Civil War (when we adopted the Fourteenth Amendment, which, the Court later ruled, applied the Second Amendment to the states) confirms this. In particular, they claim that federal officials “insisted that securing [freedmen’s] Second Amendment rights was critical to ensuring that they could protect themselves” from racially motivated atrocities, and that this “belief was premised on the understanding that the Second Amendment guaranteed the right to carry arms outside the home for self-defense.”
The plaintiffs argue that New York’s “proper cause” standard violates this right. They claim that the standard effectively reserves the right for those “happy few” who can satisfy the rigorous standard, but denies it to all others. They also contend that the loose standard puts too much discretion in the hands of officials who determine whether an applicant satisfies it. They say that the requirement cannot meet “any of the standards of scrutiny that the Court has applied to enumerated constitutional rights”—either strict scrutiny or intermediate scrutiny—and that it is therefore unconstitutional.
New York counters that the text, history, and tradition around the Second Amendment show that New York’s requirement comports with the Second Amendment, and that the conditions on Nash’s and Koch’s licenses are valid. The state says that the Second Amendment right to keep and bear arms for self-defense does not mean that individuals can carry firearms anywhere and anytime; instead, “[l]ike all constitutional rights, the right to carry firearms incorporates the limitations embedded within the ‘historical understanding of the scope of the right.’” Moreover, the state claims that government officials have historically enjoyed broad discretion to determine when and where a person can carry a firearm, “and to restrict the carrying of concealable firearms, particularly in populous areas.” And it contends that its current law “is less restrictive than its historical antecedents, and thus does not violate any historically rooted constitutional norms.” New York asserts that many historical public-carry laws would not have allowed Nash and Koch to carry their firearms in public as widely as the state did here. The state writes that “no jurisdiction would have allowed what petitioners seek: the right to carry a handgun everywhere (or virtually everywhere)—including the crowded and populous areas of cities and towns—based on speculation that a confrontation warranting the use of deadly force might suddenly arise.” The state says that because its “proper cause” standard falls squarely within the range of traditional restrictions on the right to bear arms, it categorically complies with the Second Amendment.
But even if the Court were to scrutinize the “proper cause” standard, New York argues that it passes intermediate scrutiny, the appropriate test for this regulation. The state says that it has “compelling interests in reducing violent crime and gun violence,” and that the “proper cause” standard “substantially furthers those urgent goals, as a wealth of empirical studies confirm.” Moreover, it claims that the standard offers flexibility to allow “individuals to carry handguns in times and places for which they have established a non-speculative need for armed self-defense, hunting, or target shooting,” allowing officers to tailor restrictions specifically to meet the state’s interests.
Finally, New York argues that if the Court has any doubt whether the “proper cause” standard meets intermediate scrutiny, or any doubt about the evidence to support the intermediate scrutiny analysis (like the numbers and percentages of public-carry permits granted), then the Court should remand the case for further proceedings. According to the state, “On remand, New York could demonstrate the falsity of petitioners’ unsupported allegation that New York’s licensing regime flatly prohibits law-abiding citizens from carrying handguns in public for self-defense.”
The government filed an amicus brief in support of New York, and made substantially similar arguments. In addition, the government pointed to federal laws as examples of the types of gun regulations that legislatures may adopt, consistent with the Second Amendment.
This is only the third case to come to the Court since 2008 testing the metes and bounds of the Second Amendment. And given that the Court said very little about the Second Amendment in those earlier cases, this case will almost certainly give us much more information—including whether and how the Second Amendment applies outside the home (a question that splits the lower courts), and a determinate framework for judging Second Amendment questions.
In other words, this case will determine whether and how the Second Amendment applies outside the home, telegraph the Court’s approach to state and federal gun regulations across the board, and direct the lower courts in judging all gun regulations. All that’s to say, the stakes are, well, high.
The Court has a range of options. First, at one extreme, the Court could simply rule that New York’s “proper cause” requirement falls within the longstanding, traditionally accepted regulations that are categorically exempt from the Second Amendment. Next, as a middle position, the Court could rule that the “proper cause” requirement falls within the Second Amendment’s ambit, and that it either survives or fails at some level of scrutiny, probably intermediate scrutiny. (The Court could decline to rule on the application of intermediate scrutiny and, as New York suggests, remand the case to the lower courts for more fact-finding on this question.) Finally, at the other extreme, the Court could rule that the right to carry a firearm outside the home for self-defense falls squarely within the “core” of Second Amendment rights, and that New York’s “proper cause” requirement fails.
It seems unlikely that this Court will go with the first extreme, and much more likely that it will go with the middle position or the last extreme. Such a ruling—especially that last extreme—could give substantial support to gun-rights advocates in challenging all manner of state and federal restrictions on firearms. Whatever the Court does, though, its ruling will deeply impact the policy and politics of gun regulations and the Second Amendment going forward.
The Supreme Court will hear oral arguments this morning in Houston Community College System v. Wilson, the case testing whether an elected body violates the First Amendment when it censures one of its members for the member's critical and disruptive public speech. Here's my Preview, from the ABA Preview of United States Supreme Court cases, with permission:
Case at a Glance
In 2013, David Wilson was elected as a trustee on the Houston Community College System (HCC) Board, the governing body for the HCC. During his tenure, Wilson engaged in a variety of public activities that were highly critical of the Board and his fellow trustees. The Board adopted a resolution that censured Wilson and limited certain privileges that he enjoyed as a member. Wilson sued, arguing that his censure violated free speech.
Elected legislative bodies in the United States have long exercised the power to censure members for their inappropriate or disruptive behavior or speech. As a general matter, bare censure does not violate free speech, because it does not chill or restrict the censured member’s speech. But Wilson contends that the Board impermissibly censured him for speech “outside the legislative sphere,” and that his censure impermissibly included punishment, because it limited certain privileges that he enjoyed as a member.
Can an elected legislative body, consistent with the First Amendment, censure a member for speech outside the legislative sphere and with restrictions on legislative privileges?
In 2013, David Wilson was elected as a trustee on the Houston Community College System (HCC) Board, the governing body for the HCC. Wilson served as one of nine trustees on the Board, each of whom represented a single-member district for a six-year term and served without compensation.
During his tenure, Wilson engaged in a variety of public activities that were highly critical of the Board and his fellow trustees. For example, he arranged robocalls and spoke out on a local radio station in opposition to the Board’s decision to fund a campus in Qatar. He sued HCC in state court after the Board allowed a member to vote on a measure by videoconference. He separately sued HCC and the trustees in state court after the Board allegedly excluded him from an executive session. (In all, Wilson filed four lawsuits against HCC, costing HCC nearly $300,000 in legal fees.) And he hired a private investigator to confirm that one of the trustees actually resided in the district she represented, and to investigate HCC itself. He published his various grievances on a website, where he referred to his fellow trustees and HCC by name.
On January 18, 2018, the Board adopted a resolution censuring Wilson for his behavior. The resolution said that Wilson acted in a manner “not consistent with the best interests of the College or the Board, and in violation of the Board Bylaws Code of Conduct.” The resolution noted that the censure was the “highest level of sanction available” again Wilson.
The resolution instructed Wilson to “immediately cease and desist from all inappropriate conduct.” It further provided that Wilson was “ineligible for election to Board officer positions for the 2018 calendar year,” that he was “ineligible for reimbursement for any College-related travel” for the 2017-2018 fiscal year, and that he would have to seek Board approval to gain access to any funds in his Board “community affairs” account. It warned that “any repeat of improper behavior by Mr. Wilson will constitute grounds for further disciplinary action by the Board.”
Wilson then amended his first state-court complaint to include claims against HCC and the trustees for violating his free-speech rights under the First Amendment. He sought $10,000 in damages for mental anguish, $10,000 in punitive damages, and attorney’s fees. HCC and the trustees removed the case to federal court, on the ground that the case now involved a federal question.
The district court ruled that Wilson could not demonstrate an actual injury, and dismissed the case for lack of standing. The U.S. Court of Appeals for the Fifth Circuit reversed and remanded the case for further proceedings. The court wrote, based on circuit precedent, that “a reprimand against an elected official for speech addressing a matter of public concern is an actionable First Amendment claim . . . .” Wilson v. Houston Community College System, 955 F.3d 490 (5th Cir. 2020).
In the meantime, Wilson resigned his seat for HCC’s District 2, and ran as a candidate for HCC’s District 1. He lost in a run-off election.
This appeal followed.
As a general matter, the First Amendment protects speech against government action that restricts, punishes, or chills speech. But in general, it does not protect action that merely responds to speech with, well, more speech.
Applying those general principles, some courts have held that an elected body’s mere reprimand of a member, or other members’ mere reprimand of a member, without more, does not violate the First Amendment. That’s because the legislative body or its members simply responded to another member’s speech with more speech of its own (the reprimand). The Fifth Circuit, in contrast, held that the Board’s mere reprimand of Wilson through censure may violate the First Amendment. (Remember, the Fifth Circuit did not rule on the merits; it only remanded the case for further proceedings on Wilson’s First Amendment claim.)
The parties therefore dispute whether the Board’s censure of Wilson (with or without the censure’s restrictions on his privileges as a member) was punitive. If it was, then the First Amendment applies; if not, it doesn’t.
But Wilson adds a twist. Distinguishing the circuit courts that have held that mere reprimand through censure, without more, does not violate the First Amendment, Wilson adds that an elected body may merely censure a member for speech “within the legislative sphere,” that is, while conducting legislative business, but not for speech outside that sphere.
Against this backdrop, HCC argues first that the Board’s censure resolution amounted to permissible “peer criticism” that “may be voiced by other members individually or by a majority speaking for the body as a whole.” Either way, HCC contends that its resolution did not suppress or chill Wilson’s speech, “compel him to espouse the majority’s views,” or impede his performance of his job. (HCC’s argument hinges on the theory that the Board’s censure resolution was a mere reprimand, without punishment or sanction.) It therefore did not violate the First Amendment.
HCC argues next that its censure resolution is well supported by historical tradition, going back to the Founding, and even before. It says that the English parliament censured members as early as the sixteenth century for speech outside official parliamentary proceedings, often in ways that included discipline beyond bare censure; that this power migrated to colonial assemblies, and, later, state legislatures and Congress; and that censure in response to members’ speech is widely practiced today among local elected bodies.
HCC argues that recognizing a First Amendment claim in response to a bare censure resolution (as the Fifth Circuit did in this case) “would perversely halt that speech-rich local practice.” According to HCC, that’s because a “legislative censure is important government counter-speech on a matter of public concern.” In other words, censure adds to aggregate valuable speech in a public debate; it doesn’t impede speech. Because “the Constitution safeguards . . . the right of both sides to be heard,” HCC contends that disputes between elected members and a legislative body should be resolved by the voters.
The government weighs in as amicus to elaborate on the history and tradition of censure resolutions; to put a finer point on the argument that an elected body’s censure resolution amounts to government speech; and to emphasize that the Court need not address tougher issues outside the Question Presented (for example, when an elected body disciplines a member for speech beyond bare censure). (The government seems to go farther than HCC, in that it argues that an elected body can even discipline or punish a member, including by censure.)
Wilson counters first by conceding that a legislative body may censure a member’s speech “within the legislative sphere,” that is, on the chamber floor, in legislative hearings, or in legislative reports, for example. But he says that a legislative body may not censure or otherwise punish a member’s speech “outside the legislative sphere.” He claims, contrary to HCC, that mere censure, without more, is punitive, and thus an impermissible response to speech outside the legislative sphere. He claims that historical evidence, modern precedents, and contemporary practice all confirm this. He points to examples from the Founding Era, more recent court rulings (including Supreme Court rulings that have “held in other contexts that formal censures can violate the First Amendment”), and contemporary authorities on parliamentary procedure. He writes that “[m]any such bylaws expressly state that censures may not be entered against members in response to their speech.”
In any event, Wilson argues that the Board’s censure resolution here went farther than mere censure. He points out that it included revoking and limiting certain of his “privileges of office,” including barring his access to reimbursements for college-related travel and restricting his access to community affairs funds. He also points out that the censure expressly “directed” him “to immediately cease and desist” his outside activities against the Board or face “further disciplinary action.” He contends that because his censure was “plainly punitive,” it violated the First Amendment, “[w]hatever one might say about formal censures as a general matter.”
Wilson argues that the censure violates his free-speech rights under Bond v. Floyd. 385 U.S. 116 (1966). The Court in that case held that the Georgia legislature violated the First Amendment when it excluded a member for his outspoken opposition to the Vietnam War. Wilson claims that while his censure falls short of exclusion, his censure nevertheless “included practical disabilities intended to prevent Wilson from performing his official functions”—just like exclusion. “Under Bond, the censure therefore violated the First Amendment.”
Wilson contends that his censure was not protected government speech. He says that in contrast to ordinary government speech (which might include a mere position statement, for example), his censure was punitive. He claims that if censures were government speech, “there would be nothing to stop elective bodies (or any governmental agency) from censuring journalists for critical coverage of the government, including (so it would seem) revoking privileges like press passes in response.”
Wilson argues that his punitive censure cuts against the values of the First Amendment, because it impedes speech (and doesn’t enhance aggregate speech). He claims that Board members had numerous other ways to express their opposition to his speech (and thus add to aggregate speech, consistent with the First Amendment). But he says that his punitive censure only serves to shut down his speech. He asserts that if his censure stands, “elective assemblies [would be empowered] to use their formal censure power to chill dramatically the speech of out-of-favor elected officials.”
Finally, Wilson emphasizes that a ruling in his favor would only disallow “a very narrow range of official censures.” According to Wilson, that’s because censures are “shockingly rare in the United States,” and almost always in response to speech “within the legislative sphere.” He says that a ruling in his favor would only disallow censures outside the legislative sphere, which are already “almost unheard of.”
The Court has never squarely addressed whether an elected body’s censure of a member implicates or violates the First Amendment. Some lower courts have, however, and there’s some tension, or even conflict, in how they have addressed the question. At least three federal circuit courts (the Fourth, Sixth, and Tenth Circuits) and the Vermont State Supreme Court have all ruled that censure does not violate the First Amendment. The Fifth Circuit ruled to the contrary.
In sorting this out, look for the Court to consider several factors. First, the Court will likely consider whether an elected body’s mere reprimand, standing alone, is sufficient punishment to trigger First Amendment scrutiny. Next, if not, the Court will need to consider how much punishment or retaliatory action a censure resolution must include in order to trigger the First Amendment. In particular, the Court will have to consider whether an elected body’s restrictions on a member’s legislative privileges, without more, are sufficient punishment. Third, the Court may consider any differences between an elected body’s formal censure resolution and other members’ less formal reprimands (which are constitutionally protected), and whether those differences are constitutionally significant. Finally, the Court will consider Wilson’s claim that censure is valid for speech “within the legislative sphere,” but not outside it.
The Court’s approach may also depend on how it understands censure. If it understands censure as adding to aggregate speech, as HCC and the government argue, it will more likely allow censure, consistent with its more general trend to promote more speech, not less. If it understands censure as detracting from aggregate speech, however, as Wilson argues, it will more likely scrutinize censure. In a different dimension, if it understands censure as government speech, as HCC and the government argue, it will more likely allow censure, consistent with its more general trend to allow the government to say whatever it likes. If it understands censure as government punishment, however, as Wilson argues, it will more likely scrutinize censure.
Finally, and most importantly, the case could impact the censure practices of local governments across the country. HCC argues in its cert. petition that thousands of local governments authorize censure of members, and that “it is frequently used” for a range of member speech that “is quite broad.”
Sunday, October 31, 2021
The Supreme Court will hear oral arguments tomorrow in the Texas abortion cases. Here's my oral argument preview, from the ABA Preview of United States Supreme Court Cases, with permission:
Can federal courts hear challenges by private plaintiffs or the federal government to halt the enforcement of a law that authorizes private citizens to sue doctors for providing an abortion after six weeks of pregnancy?
Case at a Glance
Texas’s S.B. 8 prohibits a doctor from performing an abortion after about six weeks of pregnancy, in plain violation of settled Supreme Court precedents. At the same time, the law is designed to foreclose traditional channels of judicial review and effectively prevent federal courts from hearing challenges to it. S.B. 8 does this by authorizing private plaintiffs (and not state officials) to enforce its ban by suing doctors who provide an abortion after six weeks of pregnancy for civil damages. Taken together, S.B. 8’s abortion ban and its outsourced enforcement have achieved their objective: abortions have effectively stopped in Texas. And the federal appeals courts, citing procedural hurdles, have so far declined to intervene.
S.B. 8 is a flat violation of a woman’s fundamental right to an abortion under Roe v. Wade and Planned Parenthood v. Casey. Ordinarily, such a law would be subject to federal judicial review. But S.B. 8’s enforcement mechanism—private lawsuits against abortion providers—is specifically designed to thwart federal judicial review. These cases test whether abortion-rights advocates and doctors or the federal government can nevertheless sue in federal court to stop the law.
Can abortion-rights advocates and abortion doctors or the federal government sue in federal court to halt enforcement of Texas’s S.B. 8?
Texas’s S.B. 8 is an unusual, even unprecedented, act. On its face, S.B. 8 prohibits a physician from knowingly performing an abortion after the detection of a fetal heartbeat, usually around six weeks into a pregnancy, before most women even know that they are pregnant. It contains no exceptions for rape or incest. And it provides only a limited and ill-defined exception for a “medical emergency.”
On its face, that’s a flat violation of a woman’s fundamental right to an abortion. Roe v. Wade, 410 U.S. 113 (1973), and Planned Parenthood v. Casey, 505 U.S. 833 (1992), establish that government can regulate abortion before a fetus is viable (that is, before it is able to survive outside the womb), usually around 22 to 24 weeks into the pregnancy, so long as the regulation does not create an “undue burden” on a woman’s access to abortion. S.B. 8’s ban on abortions after six weeks of pregnancy plainly constitutes an undue burden on a woman’s access to abortion before viability. In other words, S.B. 8 plainly violates Roe and Casey.
But that’s not why S.B. 8 is unusual. Indeed, a host of states have enacted abortion bans that plainly constitute an undue burden on a woman’s access to abortion before viability. They have enacted such laws for the stated purpose of challenging Roe v. Wade itself, and persuading the Court to overturn the case. In fact, the Court will consider such a law next month, when it hears oral arguments in Dobbs v. Jackson Woman’s Health Organization, a case testing Mississippi’s ban on abortions after 15 weeks of pregnancy. S.B. 8’s plain violation of Roe and Casey doesn’t make the law unusual; it makes it a sign of our times.
So here’s why S.B. 8 is unusual, even unprecedented: it outsources enforcement. In particular, S.B. 8 specifically prohibits state officials from enforcing the ban, which is the usual way that states enforce their laws, and instead authorizes “any person” to sue an abortion provider who provides an abortion after six weeks of pregnancy. It also authorizes “any person” to sue anyone who “aids or abets” an abortion, or even intends to aid or abet an abortion, after six weeks of pregnancy. (S.B. 8 prohibits a plaintiff from suing the woman herself, however.) A plaintiff in these suits need not have any connection to the abortion, or even any connection to Texas. They can get injunctive relief, stopping the defendant from further violating S.B. 8. They can also recover a minimum of $10,000 for each abortion, plus costs and attorney’s fees. That alone creates a strong financial incentive for doctors to stop performing abortions after six weeks of pregnancy.
But there’s more. S.B. 8 prohibits a defendant in these actions from claiming that they believed that S.B. 8 was unconstitutional. (In other words, S.B. 8 purports to stop potential defendants from raising this argument as a defense in an S.B. 8 lawsuit.) And it restricts (although it apparently does not fully prohibit) a defendant from arguing that S.B. 8 creates an undue burden on a woman’s right to abortion. S.B. 8 also prohibits a court from awarding attorney’s fees or court costs to a defendant, even if the defendant prevails. As a result, a prevailing defendant—even against an obviously spurious lawsuit—must cover all costs and attorney’s fees to defend the action. That creates a strong financial incentive for doctors to stop performing all abortions.
Finally, yet more. S.B. 8’s venue rules allow plaintiffs to strategically file their cases in Texas courts that are most amendable to their claims, and to block a defendant’s attempt to transfer to another court. Moreover, S.B. 8’s issue- and claims-preclusion provisions seemingly allow an endless line of plaintiffs to sue an abortion provider, or anyone who aids or abets an abortion, even for the same abortion. (At the same time, another provision of the act says that “a court may not award relief . . . if a defendant demonstrates that the defendant previously paid the full amount of statutory damages . . . in a previous action for that particular abortion . . . .” Taken together, the provisions seem to allow a variety of plaintiffs to sue a defendant for the same abortion, but restrict the court in awarding relief if a defendant has already paid in an earlier case.)
In short, Texas designed S.B. 8 to violate a woman’s fundamental right to abortion under Roe and Casey; effectively to halt abortions in the state; and specifically, to thwart judicial review. That’s not commentary; it’s exactly what Texas legislators said when they enacted the law.
Anticipating these results, Whole Woman’s Health, along with Texas abortion providers and individuals and organizations that support abortion patients, sued to stop S.B. 8 before it went into effect, on September 1, 2021. The plaintiffs sued several state officials, including state court clerks and judges, and a private person, on the ground that they would enforce S.B. 8.
The district court denied a motion to dismiss the case. The Fifth Circuit stayed the district court proceedings and rejected the plaintiffs’ motion for an injunction pending appeal. On emergency appeal, the Supreme Court then declined to grant an injunction against S.B. 8 or to vacate the Fifth Circuit’s stay pending appeal. The Court said that federal courts have the power to enjoin individuals, not laws. It also suggested that the plaintiffs sued the wrong defendants, because “it is unclear whether the named defendants in this lawsuit can or will seek to enforce the Texas law . . . .” (Four justices sharply dissented.) The ruling meant that S.B. 8 went into effect on September 1.
Soon after the Court declined to intervene, the federal government sued Texas itself (and not individuals), arguing that S.B. 8 was unconstitutional. The district court granted the government’s motion for a preliminary injunction, but the Fifth Circuit stayed the injunction pending appeal.
The Supreme Court then agreed to hear both cases and expedited the briefing and arguments. Each case raises the questions whether the federal courts can hear the plaintiffs’ challenges to S.B. 8, and whether they can halt enforcement by the defendants.
At their most fundamental level, both cases test whether the federal courts can hear the plaintiffs’ challenges and enjoin the enforcement of S.B. 8. That’s a contested question, because Texas, by outsourcing S.B. 8’s enforcement to private plaintiffs, diluted and dispersed the enforcement responsibility, making it hard to identify actual defendants before anybody files an S.B. 8 lawsuit. And because S.B. 8’s financial incentives all but prohibit doctors from performing any abortion in the first place, S.B. 8 ensures that there will be few, if any, S.B. 8 lawsuits where a doctor could challenge S.B. 8 after enforcement. (In any event, S.B. 8 limits how doctors can raise challenges in those lawsuits.)
Despite S.B. 8’s design to thwart federal judicial review, the plaintiffs in both cases contend that the federal courts can hear their cases; and because of S.B. 8’s design to thwart judicial review, the plaintiffs argue that the federal courts must hear their cases. Texas, for its part, contends that S.B. 8 technically allows judicial review through S.B. 8 cases themselves—and not in through these federal court cases—even though S.B. 8 itself limits or effectively eliminates that option.
The two cases raise separate but overlapping arguments. (Texas filed a single brief covering both cases.) Because there are some differences, however, we summarize the arguments in the cases separately. Let’s start with Whole Woman’s Health, then we’ll examine United States v. Texas.
Whole Woman’s Health v. Jackson
The plaintiffs argue first that their claim “fit[s] neatly” with 42 U.S.C. § 1983, the federal statute that authorizes a civil lawsuit against individuals acting under the authority of state law for violating constitutional rights. They argue that Section 1983 specifically authorizes suits against “judicial officers” acting in their “judicial capacity.” They contend that the “text and purpose” of Section 1983 allows their suit to go forward against the state officials, including the judges, and the private defendant.
The plaintiffs argue next that their suit for injunctive relief against state officers is valid under Ex Parte Young, 209 U.S. 123 (1908). The Court in that case held that a plaintiff can sue a state official for prospective injunctive relief, notwithstanding the state’s general immunity from suits for monetary damages under state sovereign immunity and the Eleventh Amendment. The plaintiffs assert that the court clerks, judges, and state officials who are defendants in this action all play roles, to one degree or another, in S.B. 8’s enforcement, and therefore fall within the Ex Parte Young doctrine. Moreover, the plaintiffs write that “where, as here, a law hamstrings state courts’ ability to provide defendants a fair opportunity to vindicate their rights—all while deputizing millions of private citizens to sue—equity requires that federal courts step in and prevent irreparable constitutional injury.”
Third, the plaintiffs argue that they have standing to sue. They contend that the threat of enforcement of S.B. 8 creates an injury (the lack of access to abortion, as illustrated by the actual injury women suffered after the Court declined to halt S.B. 8’s implementation, and the resumption of abortions during the period of injunction in United States v. Texas); that the defendants, to one degree or another, caused that injury; and that an injunction against the defendants would redress the injury, because it would ensure that women again have access to abortion in Texas. The plaintiffs also say that the defendants’ vigorous defense of S.B. 8 in the courts ensures a “sharp presentation” of the “complex and novel” questions.
Finally, the plaintiffs argue that the Court should uphold the district court injunction in order to “protect federal supremacy from the imminent threat posed by S.B. 8 and copycat bills already under consideration by States seeing what Texas has achieved thus far—enactment of a law that baldly defies this Court’s precedent yet is insulated from effective judicial review.” The plaintiffs contend that if S.B. 8 stands, nothing prohibits states from similarly insulating other state laws that blatantly violate constitutional rights from judicial review simply by outsourcing enforcement, exactly as Texas did here.
In response, Texas argues that the plaintiffs lack standing, and that state sovereign immunity bars their suit. Texas says that state executive officials do not have authority to enforce S.B. 8. As a result, the state says that the plaintiffs lack standing to sue those officials, because their actions cannot cause the plaintiffs any injuries, and any judicial relief would not redress the plaintiffs’ injuries. For the same reason, Texas argues that those officials simply do not fall within Ex Parte Young’s exception to Eleventh Amendment immunity. Texas claims that state judges are neutral adjudicators, not adverse parties (or “judicial enforcers” of S.B. 8), and that they are bound to apply both S.B. 8 and Casey. Given this, Texas concludes that the plaintiffs lack standing, because the plaintiffs’ requested relief—an injunction instructing them to apply Casey—would not redress their alleged harm.
Penny Clarkston, the district clerk of Smith County, Texas, filed her own brief. Mark Lee Dickson, “a pastor and anti-abortion activist,” filed his own brief. They made substantially similar arguments.
United States v. Texas
The government argues first that it has authority to sue Texas in equity to protect its interests. The government says that it can sue in equity to prevent Texas from thwarting judicial review under federal law. It claims that it does not sue merely to enforce its citizens’ constitutional rights, but also to prevent Texas’s “unprecedented attack on the supremacy of the Constitution as interpreted by this Court”—a “distinct sovereign interest” that forms the basis of its suit in equity. The government contends that it also has an interest in preventing S.B. 8 from interfering with its own programs that “require federal employees and contractors to arrange, facilitate, or pay for abortions in some circumstances,” and holding federal employees and contractors liable “for carrying out their federal duties.”
The government argues next that the federal courts have the power to grant relief in favor of the government and against Texas. The government claims that under the Federal Rules of Civil Procedure, an injunction against Texas can also bind state officers and agents and “other persons who are in active concert or participation” with the state or its officers. According to the government, this means that an injunction can bind plaintiffs who bring S.B. 8 suits, court clerks who accept those suits, judges who hear the cases, and other state officials who would enforce any judgments. The government acknowledges that some of this relief may be unusual. But so is S.B. 8. “And having chosen an unprecedented scheme in a deliberate effort to thwart ordinary judicial review, Texas should not be heard to complain when the federal courts exercise remedial authorities that are usually unnecessary.”
Finally, the government argues that the federal courts can grant declaratory relief (declaring that S.B. 8 is invalid), because the government’s power to bring this case in equity “also allows it to seek a declaratory judgment.” The government asserts that declaratory relief would arm abortion providers with a defense in S.B. 8 suits against them, providing “another reason why those suits must be dismissed.” But in any event, the government claims that declaratory relief is no substitute for injunctive relief. That’s the only way “[t]o halt the irreparable injury arising from Texas’s defiance of this Court’s precedent and systematic denial of constitutional rights within the State’s borders . . . .”
Texas counters that the government lacks standing for the same reasons why the Whole Woman’s Health plaintiffs lack standing, but more. Texas says that it does not cause the government harm “by the mere existence of an allegedly unconstitutional state law that may affect private parties.” The state says that the government’s suit amounts to a request for an “advisory opinion” from the Court, and that Court lacks authority under Article III of the Constitution to issue such an opinion. Texas claims that the district court was wrong to hold that the government could “skirt its obligation to show its own cognizable injury” by drawing on the government’s interest in protecting U.S. citizens under federal supremacy principles. The state says that the Supreme Clause does not grant the government a right to sue to protect U.S. citizens; instead, the government, like private parties, must allege that it suffered a harm to itself.
Texas argues next that the government lacks a statutory or equitable basis for requesting an injunction. The state says that the “numerous statutory mechanism” for enforcing constitutional rights do not authorize the government to sue to vindicate U.S. citizens’ substantive-due-process rights. And it says that equitable principles do not authorize the government to sue to vindicate U.S. citizens’ rights just because the state denied those citizens the ability to enforce their own rights. Texas asserts that if the plaintiffs in Whole Woman’s Health want to protect their rights, they can do so as state-court defendants in S.B. 8 civil actions. The government lacks authority to bring this action to enforce their rights for them.
Third, Texas argues that S.B. 8 does not violate the Constitution. The state claims that it has incorporated Casey’s “undue burden” test into S.B. 8 by allowing an abortion doctor to use “undue burden” as a defense in an S.B. 8 action. The state writes that under S.B. 8, “Texas may not impose liability in cases where doing so would cause an undue burden on a woman seeking an abortion—but neither private parties nor the Department of Justice can compel Texas to support abortion beyond that obligatory floor.” Texas says that this comports with Casey, and does not conflict with federal programs in violation of federal supremacy. “Far from discriminating against the federal government, SB 8 is subject to a state-law presumption that it will not apply to the federal government.”
Finally, Texas argues that the district court’s injunction against “the State” amounts to an impermissible injunction against a law, not a person. That’s because none of the state executive defendants can enforce S.B. 8; federal courts cannot enjoin state courts to apply state and federal law (state courts already do that); and private actors are not “state actors” just because they bring an S.B. 8 suit against other private parties.
Three private citizens—Jeff Tuley, Erick Graham, and Mistie Sharp—filed a separate brief as intervenors, making substantially similar arguments. They claim that they intended to bring S.B. 8 suits only against abortion providers for abortions not covered by Casey, and so also argue that the government cannot sue to halt their S.B. 8 suits “over conduct that is unprotected by the Constitution.”
Everybody agrees that S.B. 8 is singular and unprecedented. It plainly violates a woman’s fundamental right to abortion, and, by outsourcing enforcement to private plaintiffs, it thwarts traditional channels of judicial review. For Whole Woman’s Health and the government (and a host of others), this is the problem. For Texas (and a host of others), this is the point.
Whether problem or point, S.B. 8 had its predictable and intended results: It effectively halted abortions in Texas. Texas women who seek an abortion today must travel to neighboring states or other locations where they can still get an abortion. (And they have, flooding abortion providers in neighboring states.) Or, if they cannot afford the time away from work or family or the expense of travel (as is so often the case), or if their health prevents travel, they must go without a doctor-provided abortion.
Time is obviously of the essence, in two ways. On the front end, many or most women don’t even discover their pregnancy until after the sixth week, when S.B. 8 bans abortion. As a result, by the time they know they’re pregnant, many or most women effectively cannot now obtain an abortion in Texas. On the back end, even under Roe and Casey, states can ban abortion entirely after viability, when a fetus can survive outside the womb. As a result, Texas women who seek a doctor-provided abortion must find an out-of-state alternative before about 22 or 24 weeks of pregnancy. All this leaves a narrow window for pregnant women in Texas to exercise their fundamental right to abortion. And, again, that window is only available to Texas women who can travel out of state.
All this is at issue in the case. If the Court rules that federal courts cannot hear the plaintiffs’ cases and halt enforcement of H.B. 8, abortion will remain effectively unavailable in Texas. (There’s a chance that the Court could also decide whether Roe and Casey remain good law. But given that the Court is slated to hear a direct challenge to Roe this Term (oral arguments come just next month), this seems unlikely.)
That’s not a remote possibility. The Court already declined to halt S.B. 8 in Whole Woman’s Health, over the sharp dissents of four justices. (Chief Justice John Roberts joined Justices Stephen Breyer, Sonia Sotomayor, and Elena Kagan in various dissents.) One or more of the justices who voted with the majority in that ruling would have to change sides, or find a distinction that persuades them that the courts can hear the government’s case, even if not Whole Woman’s Health’s case.
Such a ruling could have a profound impact on the right to abortion, even if the Court declines to overturn Roe and Casey. Several other states are already considering laws like Texas’s and will quickly enact those copycat laws if the Court rules against the plaintiffs. This could effectively eliminate abortions in those states, just as S.B. 8 effectively eliminated abortions in Texas.
More, such a ruling could have profound impacts well outside the area of abortion rights. As the plaintiffs and several amici point out, if Texas can engineer a law to ban abortion and effectively evade judicial review, then any state can engineer a law to ban any fundamental right and effectively evade judicial review. And there’s no daylight between a woman’s fundamental right to an abortion and any other fundamental right favored by folks with different political stripes. If you have any doubt, check out the amicus curiae brief of the Firearms Policy Coalition in the Whole Woman’s Health case, for example.
Finally, the Court’s rulings in these cases, and in Dobbs, the Mississippi case up next month, could have significant effects on the 2022 mid-term elections. If the Court strikes these state laws, its ruling could mobilize abortion opponents at the polls. If it upholds them, the rulings could mobilize abortion-rights advocates.
All this is to say that these cases are easily among the most important on the Court’s 2021-22 docket so far.
Friday, October 22, 2021
Missouri and Texas sued the Biden Administration for stalling on wall construction along the southern border. The states claim that Congress appropriated funding for wall construction--and only wall construction--and that the Biden Administration's stall violates the separation of powers, federal appropriations law, and federal administrative law.
The states argue that Congress appropriated $1.37 billion to the Department of Homeland Security in FY 2021 and FY 2020 for "construction of a barrier system along the southwest border" and specified that these funds "shall only be available for barrier systems." They say that when the Biden administration delayed spending the money for wall construction, it impermissibly intruded on Congress's appropriations power in violation of the separation of powers, failed to enforce the law (under the Take Care Clause), and violated federal appropriations law and federal administrative law. The states ask the court to compel the administration to spend the appropriated funds for "construction of a barrier system along the southwest border."
The Biden Administration, for its part, halted wall construction and used appropriated funding to bring wall construction projects into compliance with federal environmental law and federal statutory community-stakeholder-consultation requirements. (DHS had waived these requirements in the Trump Administration. The Biden Administration DHS said that it wouldn't waive them.) The GAO ruled this past summer that this didn't amount to an illegal "impoundment" under the Impoundment Control Act; instead, it was a "programmatic delay." (The states' complaint repeatedly mischaracterizes the GAO opinion.) By this reckoning, the Biden Administration's halt isn't a violation of law; instead, it's a move to comply with law--environmental and stakeholder-consultation requirements that the Trump Administration waived. The Biden Administration also plans to use some of the funding to remediate the environmental damage wrought by wall construction in the Trump years.
Before the case even gets to the merits, however, standing may be an issue. The states claim that the Biden Administration's halt on wall construction leads to greater unauthorized immigration, which causes them to incur costs in issuing drivers licenses, providing public education, and providing health care. It's not at all clear that they can plausibly allege that the Biden Administration's halt causes these harms, and that an order to re-start building would remedy them, as required for Article III standing.
The Supreme Court today declined to halt the Texas abortion ban, S.B. 8, but expedited appeals by abortion providers and the Biden administration in two separate orders today.
Today's actions by the Court mean that Texas's law stays in place while the appeals proceed at the Supreme Court. The Court set a super-fast briefing schedule and slated oral argument in both cases for November 1.
In the Biden administration appeal, the Court limited the case to whether the United States can sue Texas, state court judges, state court clerks, other state officials, and private parties to prohibit S.B. 8 from being enforced. Justice Sotomayor dissented, arguing that the Court's failure to halt the law pending appeal effectively means that women can't get abortions in Texas. (We posted on the Biden administration appeal most recently here.)
In the doctors' appeal, the Court will decide both whether the doctors can sue state judges, state officials, and private individuals, and, if so, whether S.B. 8 is unconstitutional.
(Remember that the Court will hear yet another case testing a state's abortion ban--Mississippi's ban on abortions after 15 weeks of pregnancy. That case, Dobbs v. Jackson Women's Health Organization, puts Roe and Casey front and center. Still, there may be room in the case for the Court to uphold the law without flat-out overruling Roe. Oral argument in Dobbs is set for December 1.)
Tuesday, October 19, 2021
The federal government yesterday asked the Supreme Court to reinstate a lower court injunction against Texas's S.B. 8, the state law that effectively shut down nearly all abortions in the state. The move came after the Fifth Circuit stayed the district court's injunction pending appeal.
This'll be the second trip that S.B. 8 makes to the high court. Recall that the Court in an earlier pre-enforcement lawsuit allowed S.B. 8 to go into effect. The Court ruled that the plaintiffs in that earlier case sued the wrong defendants, state judicial officers and private individuals who said that they'd enforce S.B. 8.
The federal government's suit is tailored to navigate that procedural problem in the earlier case and put the issue of S.B. 8's constitutionality squarely before the Court.
In order to do this, the federal government sued Texas itself (not its officers or judges, and no private individuals). The government argues that it can do this in order "to vindicate two distinct sovereign interests":
First, to the extent S.B. 8 interferes with the federal government's own activities, it is preempted and violates the doctrine of intergovernmental immunity. Second, S.B. 8 is an affront to the United States' sovereign interests in maintaining the supremacy of federal law and ensuring that the traditional mechanisms of judicial review endorsed by Congress and this Court remain available to challenge unconstitutional state laws. The United States has authority to seek equitable relief to vindicate both interests.
(That first interest goes to government obligations to assist certain individuals, like those incarcerated in federal prison, in getting an abortion. If the government honors that obligation for incarcerated women in Texas, it can be subject to civil suit under S.B. 8 in Texas courts. According to the government, this means that S.B. 8 is preempted by those federal obligations, and that S.B. 8, in allowing suits against the United States, violates the government's immunity.)
As a result, the government argues that its suit avoids the wrong-defendant problem in the earlier suit. After all, Texas itself created the mechanism that outsourced enforcement of S.B. 8 to private parties, and so Texas itself must be accountable in court.
The government asked the Court to vacate the Fifth Circuit's stay, or to grant cert. before judgment and set the case for argument this Term.
Former President Donald Trump yesterday sued to stop the House Select Committee to Investigate the January 6th Attack on the United States Capitol from obtaining White House and other records from the National Archives.
The move comes after the Committee requested records related to the insurrection from the Archives, and President Biden declined to assert executive privilege to halt their release.
Trump's lawsuit claims principally that the Committee lacks a "legitimate legislative purpose" in the material and therefore exceeds its Article I authority. "No investigation can be an end in itself; there is nothing in the overwhelming majority of the records sought that could reasonably be justified as a means of facilitating the legislative task of enacting, amending, or repealing laws." The lawsuit goes on to claim that the Committee's work looks like law enforcement, not law making, in violation of the separation of powers.
In pitching the lack-of-legitimate-lawmaking-purpose claim, the complaint relies on the Court's four-factor approach in Mazars. At least some of the Mazars analysis, however, turned on the fact that congressional committees sought personal financial records (and not official records) of the president. The complaint doesn't try to square that reasoning in Mazars with the fact that the Select Committee seeks only official records.
The complaint also doesn't seriously wrestle with the idea that the Committee seeks the documents to investigate an attack on Congress to stop the electoral-vote count. Seems like that, if anything, would pretty squarely fall within Congress's "legitimate legislative purpose."
The lawsuit also claims executive privilege, attorney-client privilege, attorney work-product privilege, and deliberative process privilege; and it contends that the requested material touches on national security and law enforcement. It contends that to the extent that the Presidential Records Act authorizes the sitting president to override the former president's assertion of executive privilege, the PRA is unconstitutional.
The suit asks the court to declare that "the Committee's requests are invalid and unenforceable under the Constitution and laws of the United States," or, alternatively, to declare "that the Presidential Records Act is an unconstitutional violation of the separation of powers and is void ab initio." It also asks for preliminary and permanent injunctions to stop the Committee "from taking any actions to enforce the requests, from imposing sanctions for noncompliance with the requests, and from inspecting, using, maintaining, or disclosing any information obtained as a result of the requests," and to stop the Archives from releasing the documents, at least until "Trump has had sufficient opportunity to conduct a comprehensive review of all records the Archivist intends to produce before any presidential record is produced to the Committee."
Friday, September 17, 2021
Thursday, September 2, 2021
The Supreme Court allowed Texas's SB8, the highly unusual and severely restrictive anti-abortion law that is specifically designed to evade judicial scrutiny, to go into effect. The Court issued a ruling last night that explained its decision. The text of SB8 is here.
The Court's ruling specifically says that it's not a decision on the constitutionality of Texas's law. Instead, the majority writes that there are too many questions about the technical aspects of the case (given the highly unusual way the law works), and suggests that it's the wrong case, at the wrong time, against the wrong parties.
But as a practical matter the ruling halts abortions in the state where a physician detects a fetal heartbeat (that is, about 85 percent of all abortions) unless and until a plaintiff can bring a successful challenge. And it all but foretells the demise of Roe v. Wade. (Even if the Court doesn't ultimately overturn Roe, this case gives states a roadmap for enacting legislation that eviscerates it.)
All this without full briefing and argument, on the "shadow docket."
The case, Whole Women's Health v. Jackson, tests the constitutionality of Texas's SB8. SB8 requires abortion providers to test for a fetal heartbeat before performing an abortion, and prohibits persons from performing an abortion when they detect a fetal heartbeat. It also prohibits "aiding and abetting" (including funding, even through insurance) of a post-fetal-heartbeat abortion. (Fetal heartbeat usually occurs around six weeks. That's well before the point of viability, and even before many women know they're pregnant. All that's to say that the restriction plainly violates Roe and Casey (and every other post-Roe ruling of the Court that prohibits a state from banning abortion pre-viability).)
But there's a twist. SB8 specifically prohibits state officers from enforcing the law. Instead, it authorizing private individuals to file private suits in state court against any person who provides an abortion in violation of the law. Upon a successful suit, the law requires state courts to enjoin a defendant from providing future abortions in violation of the law, and authorizes at least $10,000 in damages against a person who provides an abortion in violation of the law . . . for each abortion.
The law forbids state courts from awarding costs and attorney fees to successful defendants (which means that they must bear their own costs, even against frivolous and unsuccessful claims). It also says that a defendant cannot defend an action unless the Supreme Court rules that a defendant has third-party standing to assert the right to abortion on behalf of its patients (which it currently has, but that could change), upon a showing that the law imposes an undue burden on the right to abortion (the Casey standard that exists now, but also could (and is likely to) change).
All this means that private individuals, not the state, enforce the law. And at a very high cost. So high, in fact, that abortion providers have stopped providing post-heartbeat abortions, merely out of fear of incurring the costs of defending private lawsuits, even if those end up overturned.
It also means that the law is tricky to test, except as a defense to a private lawsuit (which, again, comes at a prohibitively high cost to abortion providers), and even then not at all a sure thing.
That's all by design. The Texas legislature specifically designed SB8 to effectively halt post-heartbeat abortions in the state and to evade federal judicial review.
And yesterday's opinion shows that it worked. Justices Thomas, Alito, Gorsuch, Kavanaugh, and Barrett wrote that there were too many questions about the federal court's ability to hear the case by an abortion provider against a private citizen and a state judge who might enforce the law through a private lawsuit. The Court said that it's not clear that the judge will enforce the law in a way "that might permit our intervention," that the Court can issue an injunction against a state judge to halt enforcement of the law, and that the private-citizen defendant will seek to enforce the law by filing a civil action against the plaintiff. The Court's answer: let the law go into effect until a plaintiff can successfully challenge it. (Again, it's not at all clear that a plaintiff could ever challenge it, given the highly unusual way the law works.)
Chief Justice Roberts and Justices Breyer, Sotomayor, and Kagan each dissented, and joined each other, except that Chief Justice Roberts didn't join the dissents of the other three. Chief Justice Roberts "would grant preliminary relief to preserve the status quo ante." Justice Breyer argued that "[t]he very bringing into effect of Texas's law may well threaten the applicants with imminent and serious harm" sufficient to allow the Court to grant relief. Justice Sotomayor argued that the Court "silently acquiesced in a State's enactment of a law that flouts nearly 50 years of federal precedent." "Because the Court's failure to act rewards tactics designed to avoid judicial review and inflicts significant harm on the applicants and on women seeking abortions in Texas, I dissent." Justice Kagan argued that the Court improperly took this extraordinary step without full briefing and argument, on the shadow docket.