Thursday, March 21, 2019

President Issues Executive Order on University "Free Inquiry" and Student Loans

In an Executive Order today, President Trump sought to promote free inquiry and regulate student loans in higher education.

The text of the E.O. is not yet available from government sources, but as reported by the Washington Post, the E.O. provides:

 

IMPROVING FREE INQUIRY, TRANSPARENCY, AND ACCOUNTABILITY AT COLLEGES AND UNIVERSITIES

By the authority vested in me as President by the Constitution and the laws of the United States of America, it is hereby ordered as follows:

Section 1. Purpose. The purpose of this order is to enhance the quality of postsecondary education by making it more affordable, more transparent, and more accountable. Institutions of higher education (institutions) should be accountable both for student outcomes and for student life on campus.

In particular, my Administration seeks to promote free and open debate on college and university campuses. Free inquiry is an essential feature of our Nation's democracy, and it promotes learning, scientific discovery, and economic prosperity. We must encourage institutions to appropriately account for this bedrock principle in their administration of student life and to avoid creating environments that stifle competing perspectives, thereby potentially impeding beneficial research and undermining learning.

The financial burden of higher education on students and their families is also a national problem that needs immediate attention. Over the past 30 years, college tuition and fees have grown at more than twice the rate of the Consumer Price Index. Rising student loan debt, coupled with low repayment rates, threatens the financial health of both individuals and families as well as of Federal student loan programs. In addition, too many programs of study fail to prepare students for success in today's job market.

The Federal Government can take meaningful steps to address these problems. Selecting an institution and course of study are important decisions for prospective students and significantly affect long-term earnings. Institutions should be transparent about the average earnings and loan repayment rates of former students who received Federal student aid. Additionally, the Federal Government should make this information readily accessible to the public and to prospective students and their families, in particular.

This order will promote greater access to critical information regarding the prices and outcomes of postsecondary education, thereby furthering the goals of the National Council for the American Worker established by Executive Order 13845 of July 19, 2018 (Establishing the President's National Council for the American Worker). Increased information disclosure will help ensure that individuals make educational choices suited to their needs, interests, and circumstances. Access to this information will also increase institutional accountability and encourage institutions to take into account likely future earnings when establishing the cost of their educational programs.

Sec. 2. Policy. It is the policy of the Federal Government to:

(a) encourage institutions to foster environments that promote open, intellectually engaging, and diverse debate, including through compliance with the First Amendment for public institutions and compliance with stated institutional policies regarding freedom of speech for private institutions;

(b) help students (including workers seeking additional training) and their families understand, through better data and career counseling, that not all institutions, degrees, or fields of study provide similar returns on their investment, and consider that their educational decisions should account for the opportunity cost of enrolling in a program;

(c) align the incentives of institutions with those of students and taxpayers to ensure that institutions share the financial risk associated with Federal student loan programs;

(d) help borrowers avoid defaulting on their Federal student loans by educating them about risks, repayment obligations, and repayment options; and

(e) supplement efforts by States and institutions by disseminating information to assist students in completing their degrees faster and at lower cost.

Sec. 3. Improving Free Inquiry on Campus. (a) To advance the policy described in subsection 2(a) of this Order, the heads of covered agencies shall, in coordination with the Director of the Office of Management and Budget, take appropriate steps, in a manner consistent with applicable law, including the First Amendment, to ensure institutions that receive Federal research or education grants promote free inquiry, including through compliance with all applicable Federal laws, regulations, and policies.

(b) "Covered agencies" for purposes of this section are the Departments of Defense, the Interior, Agriculture, Commerce, Labor, Health and Human Services, Transportation, Energy, and Education; the Environmental Protection Agency; the National Science Foundation; and the National Aeronautics and Space Administration.

(c) "Federal research or education grants" for purposes of this section include all funding provided by a covered agency directly to an institution but do not include funding associated with Federal student aid programs that cover tuition, fees, or stipends.

Sec. 4. Improving Transparency and Accountability on Campus. (a) To advance the policy described in subsections 2(b)-(e) of this order, the Secretary of Education (Secretary) shall, to the extent consistent with applicable law:

(i) make available, by January 1, 2020, through the Office of Federal Student Aid, a secure and confidential website and mobile application that informs Federal student loan borrowers of how much they owe, how much their monthly payment will be when they enter repayment, available repayment options, how long each repayment option will take, and how to enroll in the repayment option that best serves their needs;

(ii) expand and update annually the College Scorecard, or any successor, with the following program-level data for each certificate, degree, graduate, and professional program, for former students who received Federal student aid:

(A) estimated median earnings;

(B) median Stafford loan debt;

(C) median Graduate PLUS loan debt (if applicable);

(D) median Parent PLUS loan debt; and

(E) student loan default rate and repayment rate; and

(iii) expand and update annually the College Scorecard, or any successor, with the following institution-level data, providing the aggregate for all certificate, degree, graduate, and professional programs, for former students who received Federal student aid:

(A) student loan default rate and repayment rate;

(B) Graduate PLUS default rate and repayment rate; and

(C) Parent PLUS default rate and repayment rate.

(b) For the purpose of implementing subsection (a)(ii) of this section, the Secretary of the Treasury shall, upon the request of the Secretary, provide in a timely manner appropriate statistical studies and compilations regarding program-level earnings, consistent with section 6108(b) of title 26, United States Code, other applicable laws, and available data regarding programs attended by former students who received Federal student aid.

Sec. 5. Reporting Requirements. (a) By January 1, 2020, the Secretary, in consultation with the Secretary of the Treasury, the Director of the Office of Management and Budget, and the Chairman of the Council of Economic Advisers, shall submit to the President, through the Assistant to the President for Domestic Policy and the Assistant to the President for Economic Policy, a report identifying and analyzing policy options for sharing the risk associated with Federal student loan debt among the Federal Government, institutions, and other entities.

(b) By January 1, 2020, the Secretary, in consultation with the Secretary of the Treasury, shall submit to the President, through the Assistant to the President for Domestic Policy and the Assistant to the President for Economic Policy, policy recommendations for reforming the collections process for Federal student loans in default.

(c) Beginning July 1, 2019, the Secretary shall provide an annual update on the Secretary's progress in implementing the policies set forth in subsections 2(b)-(e) of this order to the National Council for the American Worker at meetings of the Council.

(d) Within 1 year of the date of this order, the Secretary shall compile information about successful State and institutional efforts to promote students' timely and affordable completion of a postsecondary program of study. Based on that information, the Secretary shall publish a compilation of research results that addresses:

(i) how some States and institutions have better facilitated successful transfer of credits and degree completion by transfer students;

(ii) how States and institutions can increase access to dual enrollment programs; and

(iii) other strategies for increasing student success, especially among students at high risk of not completing a postsecondary program of study.

Sec. 6. General Provisions. (a) Nothing in this order shall be construed to impair or otherwise affect:

(i) the authority granted by law to an executive department or agency, or the head thereof; or

(ii) the functions of the Director of the Office of Management and Budget relating to budgetary, administrative, or legislative proposals.

(b) This order shall be implemented consistent with applicable law and subject to the availability of appropriations.

(c) This order is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.

While there is no definition of "free inquiry," the E.O. delegates authority to administrative agencies to develop regulations.

March 21, 2019 in Executive Authority, First Amendment | Permalink | Comments (0)

Wednesday, March 20, 2019

Eleventh Circuit Orders Release of Alabama's Execution Protocol Under Common Law Right to Access

The Eleventh Circuit ruled in Alabama Department of Corrections v. Advance Local Media that a media outlet that intervened in a death-penalty case had a common law right to access the state's death penalty protocol. The ruling means that the state must release the protocol (with some redactions). 

The case arose when a Doyle Lee Hamm, a condemned prisoner, challenged his scheduled method of execution based on his medical conditions. After one botched attempt, Hamm filed an amended complaint again challenging the protocol. Hamm and the state agreed to dismiss the claims, and the court dismissed the case. On the same day, Alabama Media Group moved to intervene and to unseal records, transcripts, and briefs discussing Alabama's protocol.

Alabama argued, among other things, that the media group didn't have a right to access the protocol, because the state never entered the protocol into the record. Instead, the state provided it to the court for in camera review. The trial court nevertheless ruled in favor of the media group, and the Eleventh Circuit affirmed.

The court ruled that the media group had a common law right to access the protocol. It didn't matter that the state didn't enter it into the record; instead, it only mattered whether the protocol was integral to the resolution on the merits. As the court explained:

we hold that materials submitted by litigants--whether or not they are formally filed with the district court--that are "integral to the 'judicial resolution of the merits'" in any action taken by that court are subject to the common law right of access and the necessary balancing of interests that the right entails.

As to the balancing of interests, the court said that the state's interests in withholding the protocol were outweighed by the media group's interests in gaining access to it. The court noted that the state's interest in security could be accommodated by selective redacting.

March 20, 2019 in Cases and Case Materials, News, Opinion Analysis | Permalink | Comments (0)

Tuesday, March 19, 2019

High Court Says Tribal Treaty Preempts State Fuel-Transportation Tax

The Supreme Court ruled today that a treaty between the United States and the Yakama Nation preempts Washington's tax on "motor vehicle fuel importer[s]" who bring fuel into the state by "ground transportation." The ruling in Washington State Dept. of Licensing v. Cougar Den, Inc. means that Washington can't apply its tax to Yakama Nation members who import fuel. 

The case pits a provision of the treaty against the state tax. The treaty provision reserves Yakamas' "right, in common with citizens of the United States, to travel upon all public highways," while Washington taxes "the importation of fuel, which is the transportation of fuel." The Court held, 5-4, that the treaty provision preempts the state tax. (Justice Gorsuch joined the progressives; the other four conservatives dissented.)

Justice Breyer wrote for a plurality that included Justices Sotomayor and Kagan. As to the tax, he wrote that it applies to transportation of fuel, and not just the possession of fuel, and thus implicated the treaty's right to travel. As to the treaty, he said that the the language "in common with citizens of the United States" was more than just an equality clause. (Mere equality would have meant only that Yakamas enjoyed the same right to travel as U.S. citizens, and not an especial right to travel to trade goods.) Justice Breyer wrote that prior Court decisions interpreting similar clauses in the treaty gave it broader sweep, and that this was based on the Yakamas' understanding of the treaty when it was signed. Moreover, he said that "the historical record adopted by the agency and the courts below indicates that the right to travel includes a right to travel with goods for sale or distribution." Finally, he wrote that imposing a tax on "traveling with certain goods burdens that travel." Putting the these points together, he concluded that the treaty provision preempts the state tax.

Justice Gorsuch wrote separately, joined by Justice Ginsburg, in a somewhat more muscular opinion--and one even more overtly favoring the Yakamas. In addition to making points similar to Justice Breyer's, he pointed out that the state court relied on factual findings from an earlier case as to the Yakamas' understanding of the treaty (which was broader than mere equality), and ruled that Washington was estopped from challenging those findings. He said that the findings were binding on the Court as well. Justice Gorsuch ended with this:

Really, this case just tells an old and familiar story. The State of Washington included millions of acres that the Yakamas ceded to the United States under significant pressure. In return, the government supplied a handful of modest promises. The State is now dissatisfied with the consequences of one of those promises. It is a new day, and now it wants more. But today and to its credit, the Court holds the parties to the terms of their deal. It is the least we can do.

Chief Justice Roberts, joined by Justices Thomas, Alito, and Kavanaugh, dissented. He argued that the state tax applied to possession of fuel, not to transportation, and therefore didn't implicate the treaty's right to travel at all. Justice Kavanaugh separately dissented, joined by Justice Thomas. He argued that the treaty's plain language only protected an equal right to travel, not an especial right to travel.

March 19, 2019 in Cases and Case Materials, Federalism, News, Opinion Analysis, Preemption | Permalink | Comments (0)

Monday, March 18, 2019

SCOTUS Hears Oral Argument on Virginia Racial Gerrymandering, Bethune-Hill Redux

The United States Supreme Court heard oral argument in Virginia House of Delegates v. Bethune-Hill involving the ultimate issue of whether the redistricting plan of Virginia is racial gerrymandering in violation of the Equal Protection Clause of the Fourteenth Amendment.  Like many states, the redistricting legal landscape in Virginia is complex; a good explainer from Loyola-Los Angeles Law School is here.

Recall that two years ago, in March 2017, the Court in Bethune-Hill v. Virginia State Board of Elections, the Court clarified the standard for deciding whether racial considerations in reapportionment violate the Equal Protection Clause. It affirmed the three-judge court's decision as to one of the districts as constitutionally considering race, but remanded the determination of the constitutional status of the other eleven districts. 

On remand, the three-judge court divided, with the detailed and extensive opinion authored by Judge Barbara Milano Keenan for the majority ultimately concluding that the "Commonwealth of Virginia's House of Delegates  Districts numbers 63, 69, 70, 71, 74, 77, 80, 89, 90, 92, and 95 as drawn under the 2011 Redistricting Plan, Va. Code Ann. § 24.2—3o4.03, violate the Equal Protection Clause. "

Speaker_Bill_Howell_opens_session_at_Virginia_House_of_DelegatesDuring that proceeding, the Virginia House of Delegates — one house of the Virginia legislature — was allowed to intervene, but a question on appeal to the United States Supreme Court is whether the House of Delegates, represented by Paul Clement, has standing to appeal, especially given that the Virginia Board of Elections, represented by Toby Heytens, the appellate the first time the case reached the United States Supreme Court, is now the appellee in agreement with Bethune-Hill, represented by Marc Elias. Morgan Ratner, an assistant Solicitor General, appeared on behalf of the United States and fully supported neither party, but did argue that the House of Delegates lacked standing, because "the House as an institution isn't harmed by changes to individual district lines, and while states can authorize legislatures to represent them in court, Virginia hasn't done so."  While Justice Alito seemed to take the position that all the House of Delegates needed to establish was some injury on fact, such as  the cost of publishing a new map showing the new districts, with Justice Sotomayor labeling Clement's statement that Virginia had "forfeited" the ability to object to the appeal as an "extreme" view.  There was seemingly some sympathy to Toby Heytens' view that the Court was essentially being asked to referee a dispute between branches of the Virginia state government, with Justice Alito also asking whether or not the question of which entity may represent the state is not a question that should be certified to the Virginia Supreme Court.  The precedential value and applicability of Minnesota State Senate v. Beens (1972), which Justice Ginsburg pointed out has not been cited in 30 years and was from an era in which standing was more "relaxed" and which others distinguished in terms of the impact on the legislative body.

On the merits, one issue was credibility of witnesses and deference to the court's factual determinations, especially given that the first three judge court had reached some opposite conclusions, including in some districts whether or not racial considerations predominated (and thus strict scrutiny would apply). This might seemingly be explained by the different standard articulated by the Court's previous decision in Bethune-Hill before remand, but this did not seem to be addressed. As typical, the precise facts in the map-making and the interplay between the Voting Rights Act and the Equal Protection Clause made the argument exceedingly detailed. For example, there are particular questions about the BVAP [Black Voting Age Population] in specific districts and what percentage is acceptable in each district as individualized or as comparative to other districts.

If the Court does not resolve the case on lack of standing, one can expect another highly specific opinion regarding racial gerrymandering in the continuing difficult saga of racial equality in voting.

[image: Virginia House of Delegates 2012 via]

March 18, 2019 in Courts and Judging, Elections and Voting, Equal Protection, Fourteenth Amendment, Race, Standing | Permalink | Comments (0)

SCOTUS Agrees to Hear Unanimous Jury Incorporation Challenge

The United States Supreme Court granted the petition for certiorari in Ramos v. Louisiana posing the question whether the right to a unanimous jury verdict is incorporated as against the states through the Fourteenth Amendment.

Recall that in McDonald v. City of Chicago (2010), in which a 5-4 Court held that the Second Amendment is incorporated as against the states through the Fourteenth Amendment (with four Justices finding this occurred through the Due Process Clause and Justice Thomas stating the proper vehicle was the Privileges or Immunities Clause), Justice Alito writing for the plurality discussed the state of incorporation doctrine in some detail.  In footnote 12, Alito's opinion discussed the provisions of the amendments in the Bill of Rights that had been incorporated, providing citations, and in footnote 13, the opinion discussed the provisions that had not yet been incorporated, other than the Second Amendment then under consideration:

  • the Third Amendment’s protection against quartering of soldiers;
  • the Fifth Amendment’s grand jury indictment requirement;
  • the Seventh Amendment right to a jury trial in civil cases; and
  • the Eighth Amendment’s prohibition on excessive fines.

Just this term in February, the Court whittled this small list down to three, deciding unanimously in Timbs v. Indiana that the Eighth Amendment's prohibition on excessive fines is incorporated through the Fourteenth Amendment, following an oral argument in which some Justices expressed wonderment that the issue of incorporation was even arguable in 2018.

But embedded in Timbs was a dispute about whether the "right" and the "substance of the right" must be similar, a question that the Court did not address.  That dispute is at the heart of the incorporation doctrine surrounding the right to have a unanimous jury verdict.  Justice Alito explained the problem in footnote 14 of McDonald, after stating in the text that the general rule is that rights "are all to be enforced against the States under the Fourteenth Amendment according to the same standards that protect those personal rights against federal encroachment.”

There is one exception to this general rule. The Court has held that although the Sixth Amendment right to trial by jury requires a unanimous jury verdict in federal criminal trials, it does not require a unanimous jury verdict in state criminal trials. See Apodaca v. Oregon, 406 U. S. 404 (1972); see also Johnson v. Louisiana, 406 U. S. 356 (1972) (holding that the Due Process Clause does not require unanimous jury verdicts in state criminal trials). But that ruling was the result of an unusual division among the Justices, not an endorsement of the two-track approach to incorporation. In Apodaca, eight Justices agreed that the Sixth Amendment applies identically to both theFederal Government and the States. See Johnson, supra, at 395 (Brennan, J., dissenting). Nonetheless, among those eight, four Justices took the view that the Sixth Amendment does not require unanimous jury verdicts in either federal or state criminal trials, Apodaca, 406 U. S., at 406 (plurality opinion), and four other Justices took the view that the Sixth Amendment requires unanimous jury verdicts in federal and state criminal trials, id., at 414–415 (Stewart, J., dissenting); Johnson, supra, at 381–382 (Douglas, J., dissenting). Justice Powell’s concurrence in the judgment broke the tie, and he concluded that the Sixth Amendment requires juror unanimity in federal, but not state, cases. Apodaca, therefore, does not undermine the well-established rule that incorporated Bill of Rights protections apply identically to the States and the Federal Government. See Johnson, supra, at 395–396 (Brennan, J., dissenting) (footnote omitted) (“In any event, the affirmance must not obscure that the majority of the Court remains of the view that, as in the case of every specific of the Bill of Rights that extends to the States, the Sixth Amendment’s jury trialguarantee, however it is to be construed, has identical application against both State and Federal governments.")

Thus, in Ramos v. Louisiana, the Court is set to address this "exception to the general rule" and decide whether jury unanimity is required in a criminal case in state court to the same extent as in federal court pursuant to the Fourteenth Amendment.

Lady-justice-jury[image via]

March 18, 2019 in Criminal Procedure, Due Process (Substantive), Federalism, Fourteenth Amendment, Fundamental Rights, Privileges or Immunities: Fourteenth Amendment , Recent Cases, Supreme Court (US) | Permalink | Comments (0)

AG Barr Invokes States Secrets Privileges in Twitter Suit

Attorney General Barr invoked the state secrets privilege to protect material in Twitter's suit against the Justice Department for forbidding it from publishing information on National Security Letters and  surveillance orders that it received from the government. 

The case, Twitter v. Barr, arose when Twitter sought to publish a Transparency Report describing the amount of national security legal process that the firm received in the second half of 2013. Twitter sought to publish this information because it said that the government wasn't completely forthcoming in its public comments about the extent of national security legal process served on it. DOJ declined Twitter's request to publish the information, citing national security concerns, and Twitter sued under the First Amendment. Here's Twitter's Second Amended Complaint.

DOJ now asserts the state secrets privilege in order to protect certain information in the pending case. But there are two things that make the assertion a little unusual. First, DOJ asserts the privilege not against the Transparency Report itself or the information contained in it, but instead against a confidential submission (the "Steinbach Declaration") that explains why Twitter's request to publish this information could harm national security. In other words, DOJ says that the explanation why the underlying information could harm national security itself could harm national security. 

Next, Twitter's attorney now has a security clearance to view the material, yet DOJ argues that the privilege should still protect the material--even from Twitter's security-cleared attorney. (DOJ's position has been that the court could review material in camera and ex parte and make a determination as to whether it could come in.) In fact, much of the government's submission is dedicated to arguing why privileged material can't be released to a security-cleared plaintiff's attorney. (In short: It would increase the risk of disclosure.)

The government argues that the privileged material is such an important part of Twitter's suit that, without it, the court must dismiss the case.

DOJ cites four categories of privilege-protected classified national security information that appear in the Steinbach Declaration: (1) information regarding national security legal process that has been served on Twitter; (2) information regarding how adversaries may seek to exploit information reflecting the government's use of national security legal process; (3) information regarding the government's investigative and intelligence collection capabilities; and (4) information concerning the FBI's investigation of adversaries and awareness of their activities.

The government's submission is supported by declarations of AG Barr and Acting Executive Assistant Director of the National Security Branch of the FBI Michael McGarrity. The government separately submitted a confidential version of McGarrity's declaration.

Importantly, AG Barr's declaration draws on the Attorney General's Policies and Procedures Governing Invocation of the State Secrets Privilege, adopted in the Obama Administration as a response to the widely regarded overly aggressive assertions of the privilege during the Bush Administration. AG Barr's references to this document suggest that the current DOJ will respect the principles stated in it. 

March 18, 2019 in Cases and Case Materials, Executive Authority, Executive Privilege, News, Opinion Analysis, Separation of Powers, State Secrets | Permalink | Comments (0)

Friday, March 15, 2019

Federal District Judge Dismisses Claims Against Trump Campaign for Disclosure of Information

In his opinion in Cockrum v. Donald J. Trump for President, Inc.,  Senior United States District Judge Henry Hudson of the Eastern District of Virginia dismissed the complaint by two contributors and a staffer of the democratic National Committee against the Trump Campaign.  The plaintiffs alleged that their personal information was "illegally obtained Russian intelligence operatives during the Russian hack of computer servers" belonging to the DNC, and then in a conspiracy with the Campaign and with WikiLeaks, emails with their personal information was released.

Judge Hudson's 35 page opinion first considered whether the plaintiffs claims were barred by the First Amendment as the Campaign argued, relying on Bartnicki v. Vopper (2001). Under Bartnicki, if a person lawfully obtains truthful information about a matter of public concern, the publication cannot be constitutionally punished. Judge Hudson distinguished Bartinicki because the complaint alleged that the information was not obtained legally but through a conspiracy with the Kremlin and WikiLeaks. Additionally, the private facts disclosed by the emails did not themselves have a public concern. Judge Hudson therefore concluded that, taking the allegations of the complaint as true, at this point the Campaign had no First Amendment protection.

However, Judge Hudson also ruled that the complaint failed to state a claim for relief in any of its counts.

For Count I, a claim that the Campaign violated 42 U.S.C. §1985(3), first enacted in 1871 and known as the Ku Klux Klan Act, Judge Hudson found that it was insufficient to allege that there was a "conspiracy to intimidate lawful voters from giving support or advocacy to electors for President and to injure citizens in person or property on account of such support or advocacy." The statute, Judge Hudson ruled, is remedial only and there must therefore be an allegation of a violation of a pre-existing constitutional right.  This right, Judge Hudson ruled, could only be a First Amendment right, which would therefore require state action.  The complaint did not contain sufficient allegations of state action, but instead stated that the Trump Campaign was a Virginia corporation. "Taking this fact to its logical conclusion, the Campaign is incapable of state action because it is a private entity," Judge Hudson wrote. Interestingly, this would similarly vitiate any action against the Ku Klux Klan as the Act originally intended to address.

Red_computer_mouseCounts II-IV sounded in tort, three for the tort of public disclosure or private facts and one for intentional infliction of emotional distress. On the state tort claims involving publication of private facts, Judge Hudson provided a detailed lex loci analysis to determine the "place of the wrong" and thus which state law should apply, an important point because many states do not recognize the tort of private disclosure of public facts. Ultimately, the court determined that the act of publication could not be determined and thus the law of the forum state should apply; but given that Virginia did not recognize a common law right to privacy, there was no claim stated. As to the claim for intentional infliction of emotional distress, Judge Hudson found that the allegations did not rise to the level of extreme and outrageous required by the tort.  The court dismissed the state tort law claims without prejudice.

The dismissal is a final order and it will be interesting to see if the plaintiffs appeal, especially on the §1985 claim.

March 15, 2019 in Elections and Voting, Federalism, First Amendment, Opinion Analysis, Speech, State Action Doctrine, Web/Tech | Permalink | Comments (0)

Thursday, March 14, 2019

New York Appellate Court Upholds Jurisdiction Over President in Zervos's Defamation Lawsuit

In its opinion in Zervos v. Trump, the Appellate Division, First Department of the New York State courts held that the lawsuit for defamation could proceed against the President while he is in office.

Recall that in March 2018, the New York state trial judge ruled the lawsuit for defamation by Summer Zervos against now-President Trump could proceed, denying a motion to dismiss or to stay by Trump based on his presidential status. The trial judge decided that the holding of  the United States Supreme Court in its unanimous 1997 decision of Clinton v. Jones that then-President Clinton was subject to suit in federal court extended to state court.  Recall also that soon thereafter, the appellate division in New York denied President Trump's motion for a stay, in a summary decision, and likewise soon thereafter, the New York Court of Appeals (NY's highest court) dismissed the appeal by Trump on the ground that the order appealed from does not finally determine the action.

In today's divided decision, the appellate division reached the merits of the trial judge's opinion with the majority affirming the decision regarding the President's amenability to suit, and all five judges agreeing that there was a claim for defamation.

Writing for the majority of three judges, Judge Dianne Renwick concluded that the Supremacy Clause, Article VI, does not bar a state court from exercising jurisdiction. She rejected Trump's argument that because he is the "ultimate repository of the Executive Branch's powers and is required by the Constitution to always be in function" as being without support in the constitutional text or case law and conflicting with the fundamental principle that the United States is a "government of laws and not of men." After a detailed discussion of Clinton v. Jones, she stated that in short, the decision "clearly and unequivocably demonstrates that the Presidency and the President are indeed separable." She continued that "aside from the forum, plaintiff's case is materially indistinguishable from Clinton v. Jones," and noted that Congress had not acted to afford the President more protection, interestingly citing and quoting an article by the most recent Supreme Court Justice, Brett Kavanaugh.

The difference between the majority and the dissent is centered on footnote 13 of Clinton v. Jones:

Because the Supremacy Clause makes federal law "the supreme Law of the Land," Art. VI, cl. 2, any direct control by a state court over the President, who has principal responsibility to ensure that those laws are "faithfully executed," Art. II, § 3, may implicate concerns that are quite different from the interbranch separation-of-powers questions addressed here. Cf., e.g., Hancock v. Train, 426 U.S. 167, 178—179 (1976); Mayo v. United States, 319 U.S. 441, 445 (1943). See L. Tribe, American Constitutional Law 513 (2d ed.1988) ("[A]bsent explicit congressional consent no state may command federal officials ... to take action in derogation of their ... federal responsibilities")."

But as the majority opinion explains,

the cases cited in the footnote above suggest only that the Supreme Court was concerned with a state's exercise of control over the President in a way that would interfere with his execution of federal law (Hancock, 426 US at 167 [holding that the State of Kentucky could not force federal facilities in the State to obtain state permits to operate]; Mayo, 319 US at 441 [holding that a Florida state official could not order the cessation of a federal fertilizer distribution program]; but see Alabama v King & Boozer, 314 US 1 [1941] [holding that the State of Alabama could charge a tax on lumber that a federal government contractor purchased within the state for construction of an army base, where the federal government would ultimately pay the tax]).

The_Sword_of_Damocles _1812The difference between the majority and dissent centers on the possibility that a state court could hold the President in contempt.  For the majority, this is a "hypothetical concern" that is not presently before the court, noting also that contempt is unusual in all circumstances and state courts would be aware of the issue. For the dissent, on the other hand, although there is no reason to believe the President Defendant "would not cooperate in the litigation, there is no way to be absolutely certain that the court would not at some point have to take steps to protect its own legitimacy;" the contempt power would be a "sword of Damocles hanging over the President's head."

All judges agreed that Zervos stated a claim for defamation, rejecting Trump's claim that the statements were mere hyperbole and not pertaining to the plaintiff. Instead, he was clearly including Zervos in statements and his "flat-out denial of a provable, specific allegation against him concerning his own conduct, accompanied by a claim that the accuser was lying" is not rhetorical or a statement of opinion.

Presumably, the case will be heard on appeal by New York's highest court.

[image: Richard Westall, Sword of Damocles, 1812 via]

 

March 14, 2019 in Courts and Judging, Executive Authority, Executive Privilege, Federalism, First Amendment, Opinion Analysis, Speech | Permalink | Comments (0)

Ninth Circuit Upholds Santa Monica's Regulation on Home Rental Sites

The Ninth Circuit rebuffed federal preemption and First Amendment challenges by Airbnb and HomeAway.com to Santa Monica's regulations on vacation home rentals. The ruling means that Santa Monica's regs can stay in place, and gives a green light to other jurisdictions that similarly seek to regulate these services.

The case, HomeAway.com v. City of Santa Monica, involves Santa Monica's efforts to regulate the Internet vacation home-rental market. The city first prohibited all short-term home rentals of 30 consecutive days or less, except licensed "home-sharing" (rentals where residents remain on-site with guests). It later added four requirements for Internet hosting platforms for vacation rentals: (1) collecting and remitting "Transient Occupancy Taxes," (2) disclosing certain listing and booking information regularly, (3) refraining from completing any booking transaction for properties not licensed and listed on the City's registry, and (4) refraining from collecting or receiving a fee for "facilitating or providing services ancillary to a vacation rental or unregistered home-share." Under the ordinance, if a platform complies with these requirements, it's presumed to be in compliance with the law. Otherwise, violations carry a fine up to $500 or imprisonment for up to six months.

Airbnb and HomeAway.com sued, arguing that the requirements were preempted by the federal Communications Decency Act and violated free speech. The Ninth Circuit rejected these claims.

As to the CDA, the Ninth Circuit ruled that the regs didn't require the plaintiffs to act as a "publisher or speaker," which would have brought them within the CDA's immunity provision. (The CDA provides Internet companies immunity from certain claims and liability in order "to promote the continued development of the Internet and other interactive computer services.") The court said that Santa Monica's regs only prohibited the plaintiffs from processing transactions for unregistered parties, not to monitor third-party content. Moreover, it held that the regs didn't require the plaintiffs to remove third-party content (even if in practice the plaintiffs would). Finally, the court ruled that the regs "would not pose an obstacle to Congress's aim to encourage self-monitoring of third-party content," so wouldn't post an obstacle to congressional purposes under the Act.

As to the First Amendment, the court said that the ordinance doesn't regulate speech (it regulates conduct, a commercial exchange), it doesn't "singl[e] out those engaged in expressive activity," and "the incidental impacts on speech . . . raise minimal concerns."

March 14, 2019 in Cases and Case Materials, Federalism, First Amendment, News, Opinion Analysis, Preemption, Speech | Permalink | Comments (0)

Wednesday, March 13, 2019

District Court Gives the Go Ahead to Sierra Club Suit Against Energy for Lack of Energy-Efficiency Regulation

Judge Emmet G. Sullivan (D.D.C.) ruled in Sierra Club v. Perry that Sierra Club has associational standing to sue the Department of Energy for the Department's failure to promulgate energy-efficiency standards for manufactured housing, as required by the Energy Independence and Security Act of 2007.

The ruling means that Sierra Club's case can go forward. And given the court's conclusions, and the law, it seems likely that Sierra Club will win. But that doesn't mean that we'll see regs any time soon.

The case arose when Sierra Club sued the Department for failing to promulgate energy-efficiency standards for manufactured housing by 2011, as required by the Act. The Department moved to dismiss for lack of standing. The court rejected that motion.

The court ruled that Sierra Club sufficiently pleaded that its members suffered three different harms. As to the first, economic injury, the court said that "members have alleged that they either cannot find, or it is difficult to find, energy-efficient manufactured homes, and their ability to search for such homes will continue to be adversely impacted by DOE's inaction." The court noted that under circuit law a plaintiff has suffered an injury to challenge an agency action if the action prevented consumers from purchasing a desired product--even if they could purchase an alternative.

As to the second, health injury, the court said that "seven members allege that their exposure to air pollutants and other harmful emissions is negatively impacting their health due to the lack of standards for energy-efficiency in manufactured housing." 

As to the third, procedural injury, the court simply said that "the Secretary has compromised Sierra Club's members' 'concrete and particularized procedural rights,' because it is clear that the Secretary failed to establish regulations for energy-efficiency standards mandated by Congress, and it is substantially probable that the Secretary's failure to establish the standards has caused Sierra Club's members' concrete injury."

The court held that Sierra Club satisfied the causation and redressability requirements, because, by the Department's own reckoning, regulations would clean up the air (and a lack of regulations keeps it dirtier). 

March 13, 2019 in Cases and Case Materials, Courts and Judging, Jurisdiction of Federal Courts, News, Opinion Analysis, Standing | Permalink | Comments (0)

Tuesday, March 12, 2019

Sixth Circuit En Banc Majority Upholds Ohio's Ban on Funding Planned Parenthood

In its en banc opinion in Planned Parenthood of Greater Ohio v. Hodges, the Sixth Circuit reversed a permanent injunction by the district judge against Ohio Rev. Code §3701.034 which bars any state funding —  including government-sponsored health and education programs that target sexually transmitted diseases, breast cancer and cervical cancer, teen pregnancy, infant mortality, and sexual violence — to any organization that performs or promotes abortion. 

In less than 12 pages, Judge Jeffrey Sutton, writing for the 11 judge majority, rejected the claim that the Ohio statute was an unconstitutional condition on the due process right encompassing the right to abortion by stating that Planned Parenthood had no substantive due process right to provide abortions: "The Supreme Court has never identified a freestanding right to perform abortions."  Moreover, Sutton's opinion rejected the argument that

the Ohio law will deprive Ohio women of their constitutional right of access to abortion services without undue burden, because it will lead Planned Parenthood and perhaps other abortion providers to stop providing them. Maybe; maybe not. More to the point, the conclusion is premature and unsupported by the record.

In this way, the majority distinguished the United States Supreme Court's most recent abortion case, Whole Woman's Health v. Hellerstedt (2016), albeit briefly (with one "cf." citation and one "see" citation).

In the dissenting opinion, Judge Helene White writing for 6 judges, criticizes the majority for not mentioning "much less" applying, 

the test the Supreme Court has recently articulated governing the unconstitutional-conditions doctrine. That doctrine prohibits the government from conditioning the grant of funds under a government program if: (1) the challenged conditions would violate the Constitution if they were instead enacted as a direct regulation; and (2) the conditions affect protected conduct outside the scope of the government program.

citing Agency for Int’l Dev. v. Alliance for Open Soc’y Int’l (2013) [the "prostitution pledge" case].
The dissent concludes that because "(1) the funding conditions in this case would result in an undue burden on a woman’s right to obtain nontherapeutic abortions if imposed directly, and (2) the six federal programs have nothing to do with Plaintiffs’ performing abortions, advocating for abortion rights, or affiliating with organizations that engage in such activity, all on their own 'time and dime,' " the Ohio statute should be unconstitutional.

The dissenting opinion also discusses the First Amendment argument, which the district court judge had credited but which the majority discounted because to prevail Ohio need only show that one limitation satisfied the Constitution and because "the conduct component of the Ohio law does not impose an unconstitutional condition in violation of due process, we need not reach the free speech claim." For the dissent, the free speech claim was not mooted and should be successful as in Agency for Int’l Dev. v. Alliance for Open Soc’y Int’l (2013).

 

 

March 12, 2019 in Abortion, Courts and Judging, Due Process (Substantive), First Amendment, Fourteenth Amendment, Gender, Opinion Analysis, Reproductive Rights, Supreme Court (US) | Permalink | Comments (0)

Saturday, March 9, 2019

Ninth Circuit Strikes Limit on Asylum Appeals, Rules that it Violates Suspension Clause

The Ninth Circuit ruled in Thuraissigiam v. USDHS that the statutory limitation on federal habeas corpus jurisdiction for asylum applicants in deportation proceedings violates the Suspension Clause. The ruling sends the case back to the district court to consider Thuraissigiam's legal challenges to the procedures leading to his expedited removal order.

The ruling is a huge victory for asylum seekers in deportation proceedings. It means that Thuraissigiam and other aliens in expedited removal but who seek asylum have access to federal court to challenge a denial of asylum on the merits, and not just on narrow technicalities--at least in the Ninth Circuit.

The case arose when Vijayakumar Thuraissigiam, a native and citizen of Sri Lanka, entered the U.S. through Mexico. He was detained by a Customs and Border Patrol Officer just north of the border and placed into expedited removal proceedings. After Thuraissigiam requested asylum (based on a fear of persecution in Sri Lanka), CBP referred Thuraissigiam for an interview with an asylum officer. The officer denied asylum; the officer's supervisor affirmed; and an immigration judge affirmed.

Thuraissigiam then filed a habeas petition in federal court, arguing that his credible-fear screening deprived him "of a meaningful right to apply for asylum" and other relief in violation of federal law, and that the asylum officer and IJ violated his due process rights by "not providing him with a meaningful opportunity to establish his claims, failing to comply with the applicable statutory and regulatory requirements, and in not providing him with a reasoned explanation for their decision."

The district court dismissed the case for lack of subject matter jurisdiction. The court pointed to 8 U.S.C. Sec. 1252(e), the habeas jurisdictional hook for individuals in expedited deportation proceedings, and noted that the provision only authorized a federal court to determine (1) whether a petitioner is an alien, (2) whether the petitioner was ordered removed, and (3) whether the petitioner could prove that he or she is an alien lawfully admitted for permanent residence, as a refugee, or has been granted asylum. The court ruled that Thuraissigiam's case didn't fall into any of the three categories, and so dismissed it.

The Ninth Circuit agreed that Thuraissigiam's case didn't fall into any of the three categories, and that the district court therefore lacked statutory habeas jurisdiction over his claim. But the court went on to hold that Section 1252(e) violated the Suspension Clause.

The court, looking to Boumediene and St. Cyr, ruled first that Thuraissigiam, as an alien who was arrested in the United States, could invoke the Suspension Clause. The court ruled next that the Suspension Clause requires review of Thuraissigiam's claims, and that Section 1252(e), in disallowing review of his claims, violates the Clause. In particular, the court noted that Section 1252(e) prevented any judicial review of whether DHS complied with the procedures in an individual case or applied the correct legal standard.

The court declined to invoke the constitutional avoidance canon, because, it said, Section 1252(e) cannot bear a reading that avoids the constitutional problems that it creates.

The court remanded the case to the district court to consider Thuraissigiam's legal claims.

March 9, 2019 in Cases and Case Materials, Congressional Authority, Executive Authority, Habeas Corpus, Jurisdiction of Federal Courts, News, Opinion Analysis | Permalink | Comments (0)

Thursday, March 7, 2019

Eighth Circuit Finds Schools' All-Girls Dance Team Violates Equal Protection

In its opinion in D.M. v. Minnesota State High School League, the Eighth Circuit held that an exclusion of male students from competitive dance teams violates equal protection.  The Minnesota State High School League, a voluntary association of high schools that controls extracurricular activities and sports throughout Minnesota, prevailed in the district court by arguing that the gender-exclusive policy was justified because girls' "overall athletic opportunities have previously been limited," while boys' have not.

Writing for the unanimous panel, Judge Michael Melloy recited the well-known standard for evaluating the constitutionality of sex classifications from United States v. Virginia (VMI) (1996) requiring an exceedingly persuasive justification, and that classification serves an "at least" important government objective that is substantially related.  While a compensatory justification intended to remedy past discrimination might survive in limited circumstances, Judge Melloy used the statistics provided by the state, reproducing them in table form, to demonstrate that there has not been a meaningful disparity in the rates of male and female participation in high school athletics.  Judge Melloy concluded that the "broad" arguments the state advanced of important government interests such as promoting safety, increasing competition, redressing past discrimination, and providing more athletic opportunities for female athletes, failed to rise to the level of exceedingly persuasive justifications.

The court's opinion did not delve into this additional language from United States v. Virginia (VMI) (1996), that the justification "must not rely on overbroad generalizations about the different talents, capacities, or preferences of males and females." It might have provided further support for the court's recognition that a dancing-is-only-for-girls policy violates equal protection.

The court did remand with instructions to issue preliminary injunctions on behalf of the boys who wanted to join the competitive dance teams at their respective high schools.

David_Klöcker_Ehrenstrahl_-_Children_playing_-_Google_Art_Project

[image: David Klöcker Ehrenstrahl, Children playing, 1651, via]

 

March 7, 2019 in Equal Protection, Gender, Opinion Analysis | Permalink | Comments (0)

Wednesday, March 6, 2019

Federal District Judge Finds Proposed Citizenship Question on Census Unconstitutional

In his 126 page opinion in California v. Ross, United States District Judge Richard Seeborg has found the decision of Secretary of Commerce Wilbur Ross to add a citizenship question to the 2020 census unlawful under the Administration Procedure Act and unconstitutional under the Enumeration Clause.

Recall that California filed its complaint in March 2018, including a claim that the Constitution requires the “actual Enumeration” of all people in each state every ten years for the sole purpose of apportioning representatives among the states. U.S. Const. art. I, § 2, cl. 3, and amend. XIV, § 2, and that by including the citizenship question on the 2020 Census, Defendants are in violation of the “actual Enumeration” clause of the Constitution because the question will diminish the response rates of non-citizens and their citizen relatives.  

Recall also that New York filed a similar complaint, which led to the 277 page decision in New York v. United States Department of Commerce rendered in January 2019, which is now scheduled for oral arguments at the United States Supreme Court on April 23 on the issue of whether the Secretary’s decision violated the Administrative Procedure Act, 5 U.S.C. 701 et seq.  An additional issue in the New York litigation — and the issue on which the United States Supreme Court first granted certiorari — involves the refusal of Secretary Ross to be deposed regarding his rationales for adding the citizenship question.

In California v. Ross, Judge Seeborg's opinion concluded that the plaintiff state of California, as well as plaintiff counties and cities in California, and the organization, Black Alliance for Just Immigration, satisfied the requirements for Article III standing. Important to this determination are questions of whether there would be actual injury in fact if a citizenship question were added to the census. Judge Seeborg extensively discussed the affidavits and experts regarding the relationship between the question and people responding to the census, an issue that dovetails with the constitutional Enumeration Clause claim. Judge Seeborg generally concluded there was Article III standing.

The major portion of Judge Seeborg's opinion is devoted to the Administrative Procedure Act. Judge Seeborg's concluded that "one need look no further than the Administrative Record to conclude that the decision to include the citizenship question was arbitrary and capricious, represented an abuse of discretion, and was otherwise not in accordance with law." However, Judge Seeborg's opinion also separately analyzed "extra-record" including

the absence of any effort to test the impact of the addition of the citizenship question to the census, the deviation from the Census Bureau’s usual process for adding new questions to the census, the troubling circumstances under which the DOJ’s request letter was drafted and procured, and Sessions’ order prohibiting DOJ staff from meeting with Census Bureau officials to discuss alternative sources of data that could meet DOJ’s VRA [Voting Rights Act] enforcement needs.

As to the Enumeration Clause, Judge Seeborg wrote:

The analysis of the Enumeration Clause claim similarly involves evidence beyond the four corners of the Administrative Record. As a general proposition, the decision to include a specific question on the census is committed to the discretion of the Commerce Secretary and does not implicate the constitutional command that all persons in each state be counted every ten years. However, if the Secretary’s decision to include a question affirmatively interferes with the actual enumeration and fulfills no reasonable governmental purpose, it may form the basis for a cognizable Enumeration Clause challenge.

Importantly, in finding the Enumeration Clause violation, Judge Seeborg concluded that the inclusion of a citizenship question

will materially harm the accuracy of the census without advancing any legitimate governmental interest. This is no ordinary demographic inquiry. The record reveals that the inclusion of the citizenship question on the upcoming census will have a unique impact on the Census Bureau’s ability to count the public, to the point where the inclusion of this question is akin to a mechanics-of-counting-type issue. In short, Secretary Ross’s decision to add the citizenship question to the 2020 Census undermines the “strong constitutional interest in [the] accuracy” of the census, and does so despite the fact that adding this question does not advance any identifiable government purpose.

[citation omitted]. The remedy for this constitutional violation is not a simple vacatur as it is for the APA injunction, but a nationwide injunction against including the citizenship question on the 2020 Census:

The record in this case has clearly established that including the citizenship question on the 2020 Census is fundamentally counterproductive to the goal of obtaining accurate citizenship data about the public. This question is, however, quite effective at depressing self-response rates among immigrants and noncitizens, and poses a significant risk of distorting the apportionment of congressional representation among the states. In short, the inclusion of the citizenship question on the 2020 Census threatens the very foundation of our democratic system—and does so based on a self-defeating rationale. In light of these findings, Defendants do not get another bite at the apple. Defendants are hereby enjoined from including the citizenship question on the 2020 Census, regardless of any technical compliance with the APA.

Given the nationwide injunction, the fast approaching deadlines for preparation of the 2020 Census, and the already-scheduled April arguments before the United States Supreme Court, the DOJ attorneys will probably act quickly to seek review of this decision.

1920_census_Moisant

[image: Los Angeles Census materials, 1920, via]

March 6, 2019 in Courts and Judging, Current Affairs, Elections and Voting, Executive Authority, Opinion Analysis, Race, Supreme Court (US) | Permalink | Comments (0)

Wednesday, February 27, 2019

SCOTUS Hears Oral Argument in 40 Foot Cross Case and Establishment Clause

In oral argument in The American Legion v. American Humanist Association, consolidated with Maryland-National Park and Planning Commission v. American Humanist Association, the Court considered whether a 40 foot "Latin Cross" situated on a traffic island taking up one-third of an acre at the busy intersection of Maryland Route 450 and U.S. Route 1 in Bladensburg, Md., erected to honor the dead of World War I, violates the Establishment Clause.

Recall that a divided panel of the Fourth Circuit held that the cross violated the Establishment Clause, applying Lemon v. Kurtzman (1971) as a "useful guidepost" augmented by the plurality in Van Orden v. Perry (2005) regarding passive monuments.

Michael Carvin, arguing for the American Legion, proposed replacing the Lemon test with a very broad standard that made all sectarian symbols erected or maintained by governments presumptively constitutional, except in "the rare case in which they've been misused to proselytize."  Carvin's argument would essentially vitiate the Establishment Clause and the Justices did not seem inclined to go that far.  However, there was much discussion regarding whether the endorsement inquiry under Lemon — or any portion of Lemon — was appropriate or workable. 

Miller_monicaIn considering whether the Latin cross was exclusionary of non-Christians, Neal Katyal, arguing for the Maryland state government party, stated that "factually, one of the main proponents for fundraisers of this particular cross was J. Moses Eldovich, who himself was a Jewish veteran."  Later in the argument, Chief Justice Roberts returned to this point in a colloquy with Monica Miller (pictured right) arguing on behalf of the American Humanist Association:

CJ ROBERTS: Well, but that’s one of the main criticisms of the - - - of the Lemon test - - - that different people are going to process that [the relationship between Christianity and citizenship virtues]  in different ways. 
I mean, you heard from one of your friends on the other side that one of the major fund-raisers of this was a Jewish individual. So he was obviously observing it or anticipating it in a different way.

MILLER: Well, Your Honor, I think that we cannot take one person's example, again, someone who is probably one of maybe the only Jewish people in that county at a time when there was an active clan [Klan] burning crosses, burning Jewish buildings or Jewish, you know, businesses at a time when atheists couldn't run for office, Jews had to swear that they believed in an after-life in order to qualify, I mean —

Justice Kagan, attempted to ask a question, “why does it even matter?” But Justice Alito, overriding Kagan, pointed out that there were 12 African-American soldiers’ names on the cross, and then asked Ms. Miller:  

JUSTICE ALITO: And do you think that the -- that the situation of -- of African Americans in Prince George's County at that time was worse -- was better than the situation for Jews?

Ms. Miller responded by stating that it was unclear how the names actually were chosen to be on the cross and that not all of them were from Prince George’s county.

While predictions from oral argument are always fraught, the majority of the Court seems poised to depart from Lemon and rather than articulate a new standard, stress the longstanding nature of the "monument" as in Van Orden.

 

February 27, 2019 in Establishment Clause, First Amendment, Oral Argument Analysis, Religion | Permalink | Comments (0)

Tuesday, February 26, 2019

D.C. Circuit Rebuffs Challenge to Mueller's Appointment

The D.C. Circuit ruled in In re: Grand Jury Investigation that DAG Rosenstein's appointment of Robert Mueller as Special Counsel did not violate the Appointments Clause. The ruling reaffirms Mueller's authority as Special Counsel and means that investigation target Andrew Miller will have to comply with grand jury subpoenas issued by Mueller.

We posted previously on the case here. We posted on Paul Manafort's similar case here, and another one here. We posted on yet another similar case here. We posted on Mueller's appointment regs and letter here.

The court held that the Special Counsel is an "inferior officer" (and not a "principal officer") under the Appointments Clause, and therefore need not be nominated by the President with the advice and consent of the Senate. (If the Special Counsel were a principal officer, as Miller argued, the Appointments Clause would have required nomination by the President with advice and consent of the Senate. Because Mueller wasn't appointed this way, his appointment would have violated the Clause.) The court noted that the AG exerts near total control over the Special Counsel, notwithstanding the independence built into the Special Counsel regulatory scheme (the good-cause firing requirement), because ultimately the AG could simply revoke the Special Counsel regs and eliminate the office. (The court also noted that Deputy AG Rosenstein could have amended Mueller's appointment letter to do away with the regulatory independence that the office enjoys.) (The fact that the Special Counsel is a creation of DOJ regulations distinguishes this case on this point from Morrison v. Olsen, where the Independent Counsel was a creature of the Ethics in Government Act.)

The court held moreover that Supreme Court and circuit precedent and the AG's broad statutory power to appoint attorneys in the DOJ all say that the AG (or acting AG, here the DAG) had clear authority to appoint a Special Counsel--even one from outside the ranks of the Department. The court pointed to its own ruling in Sealed Case, involving the Office of Independent Counsel for Iran/Contra: "[T]his court assumed that the independent counsel did not already hold a position inside the Department when it held that the Attorney General's appointment of him to the Office of Independent Counsel: Iran/Contra was valid. That analysis applies equally to the facts of the instant case."

Finally, the court ruled that DAG Rosenstein sat in the seat of the AG for the purpose of Mueller's appointment--and therefore Mueller, as an inferior officer, was properly appointed by the head of an agency under the Appointments Clause. The court said that AG Sessions's recusal meant that he was "disabled" under the DOJ line-of-succession act for the purpose of appointing a Special Counsel, and that DAG Rosenstein validly stood in his shoes for that limited purpose.

February 26, 2019 in Appointment and Removal Powers, Cases and Case Materials, Executive Authority, News, Opinion Analysis, Separation of Powers | Permalink | Comments (0)

Monday, February 25, 2019

District Court Denies Preliminary Injunction Against Agency Bump Stock Ban

Judge Dabney L. Friedrich (D.D.C.) denied the plaintiffs' motion for a preliminary injunction in their challenge to ATF's new rule banning bump-stocks. The ruling in Guedes v. Bureau of Alcohol, Tobacco, Firearms, and Explosives means that the ban can go into effect as the case moves forward; it also telegraphs that the plaintiffs don't have a strong legal case, or really any legal case, against the rule.

We posted on the complaint here, with some background. (The ATF rule defines a standard bump stock as a "machinegun" under the National Firearms Act. Under the rule, effective March 26, 2019, current possessors of bump stocks must either destroy them or abandon them at an ATF office.) 

Judge Friedrich ruled that the plaintiffs were unlikely to succeed on the merits of their claims. In particular, the court held that the NFA contained ambiguous terms (key parts of the definition of "machinegun," "single function of the trigger" and "automatically," are not separately defined), and under Chevron the ATF could define "machinegun" for itself. Moreover, the court said that the ATF didn't violate any procedure under the Administrative Procedure Act in adopting the reg. The court held that the plaintiffs' Takings Clause challenge should await future government compensation, instead of a preliminary injunction. And the court rejected the plaintiffs' statutory and constitutional challenges to Acting AG Whitaker's appointment:

The plain text and structure of [the AG Act and the Federal Vacancies Reform Act], however, demonstrate that they were intended to coexist: the AG Act provides a line of succession, and the FVRA gives the President discretion to depart from that line, subject to certain limitations met here.

As a constitutional matter, the plaintiffs argue that the Appointments Clause generally requires an acting principal officer to be either the principal officer's first assistant or appointed by the President with the advice and consent of the Senate. But that theory is foreclosed by Supreme Court precedent and historical practice, both of which have long approved temporary service by non-Senate confirmed officials, irrespective of their status as first assistants.

Separately, the plaintiffs argue that the Appointments Clause at a minimum requires the role of an acting principal officer to be filled by an inferior officer and not a mere employee. . . . Whitaker's designation under the FVRA was a Presidential appointment. And if the temporary nature of Whitaker's service prevented him from becoming an officer, then the President was not constitutionally obligated to appoint him at all. 

February 25, 2019 in Appointment and Removal Powers, Cases and Case Materials, Executive Authority, News, Opinion Analysis, Separation of Powers, Takings Clause | Permalink | Comments (0)

Daily Read: Johnson v. Trump

In a complaint filed in United States District Court for the Middle District of Florida against Donald Trump and the Donald Trump Campaign, former campaign staffer Alva Jones seeks relief on three counts: battery as against Trump in his individual capacity for a forcible kiss; unequal pay based on gender under the Unequal Pay Act against the Campaign organization; and unequal pay based on race under 42 USC §1981 against the Campaign organization.

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The 39 page complaint in Jones v. Trump is filled with factual allegations, embedded tweets and photographs, and numerous footnotes.  The allegations substantiating the battery claim include recitations regarding previous allegations and statements regarding similar actions. 

Like the ongoing suit in New York state courts, Zervos v. Trump, for defamation linked to sexual harassment, one issue that defendant Trump could raise would be presidential immunity.  But the argument for any immunity is exceedingly weak given the United States Supreme Court's unanimous 1997 decision of Clinton v. Jones  holding that then-President Clinton was subject to suit in federal court. And any immunity does not extend to the campaign organization.

And as Ronan Farrow writes in the New Yorker:

The most legally significant aspect of Johnson’s suit may ultimately be something the complaint does not explicitly address: the pervasive use of nondisclosure agreements by Trump during his campaign and in his Administration. Johnson’s suit is at least the sixth legal case in which Trump campaign or Administration employees have defied their nondisclosure agreements. 

This will definitely be a case to watch, even if the constitutional issues are not the primary ones it certainly has constitutional dimensions.

February 25, 2019 in Current Affairs, Executive Authority, Executive Privilege, Gender, Race | Permalink | Comments (0)

SCOTUS Hears Oral Argument in Public Access Television and State Action Case

The Court heard oral arguments in Manhattan Community Access Corporation v. Halleck, presenting the question of when (if ever) the actions of a private nonprofit corporation operating a public access television channel constitute sufficient state action warranting application of the First Amendment.  As we discussed in our preview, the doctrinal question revolves around whether it is general constitutional state action doctrine or public forum doctrine under the First Amendment or whether there is a convergence of the two doctrines. The Second Circuit held that there were sufficient allegations of state action and First Amendment violations to prevent dismissal of the complaint.

Recall that the case involves a claim that Manhattan Community Access Corporation, known as Manhattan Neighborhood Network, MNN, suspended the plaintiffs, Halleck and Melendez, from airing programs over the MNN public access channels because of disapproval of the content in violation of the First Amendment, which requires state action.

OTVbelweder-front
In oral argument, Michael DeLeeuw, arguing for MNN, began by stating that MNN could not be deemed a state actor under any of the Court's state action tests.  On the other hand, in the conclusion to his argument on behalf of the original plaintiffs, Paul Hughes stated that his "argument is limited to the context of public forums and the administration of public forums being state action" and "goes no further than that."

In between, the Justices probed factual questions regarding the composition of the MNN board, MNN's ability to curate content (or whether it must adhere to first-come-first-served), the practice with other public access channels, the agreement scheme between the city and MNN as well as regulations, and searched for analogies in railroads, "private prisons," and schools opening their facilities.  Early in the argument, Chief Justice Roberts asked whether facts about MNN's ability to curate content was disputed, with counsel for MNN responding that they were, and Chief Justice Roberts responding that the case was before the Court on the pleadings.  At several points, Justice Breyer focused on specific facts, noting that certain facts tended toward or against there being state action or the creation of a public forum.

On the whole, the argument seemed to favor a very particularized analysis.  So while the Court could certainly articulate a broad new standard for state action, it seems more likely that the Court's decision will be a narrow one focused on the rather unique circumstances of this public access arrangement.

February 25, 2019 in First Amendment, Fourteenth Amendment, Oral Argument Analysis, State Action Doctrine, Television | Permalink | Comments (0)

Federal District Judge Finds Male-Only Selective Service Registration Violates Equal Protection

In his opinion in National Coalition for Men v. Selective Service System, Judge Gray Miller of the United States District Court for the Southern District of Texas found that the Military Selective Service Act (MSSA) provision, 50 USC §3802(a), requiring males (but not females) between the ages of 18 and 26 to register with the Selective Service System (SSS) violated equal protection, as applicable to the federal government through the Fifth Amendment's Due Process Clause.

Judge Miller first rejected the Government's Motion to Stay, concluding that the case was ripe, as it involved only a question of law, and that considerations of separation of powers and discretionary power of the court did not merit a stay. Judge Miller noted that Congress "has been debating the male-only registration requirement since at least 1980 and has recently considered and rejected a proposal to include women in the draft."

DraftcardRenJuanAt the heart of this litigation is Rostker v. Goldberg (1981) in which the United States Supreme Court upheld the constitutionality of the male-only selective service registration based on its reasoning that because women were not statutorily eligible for combat, men and women were not "similarly situated" for purposes of the draft.  The Government argued that Rostker should control. But, as Judge Miller stated, in the nearly four decades since Rostker "women's opportunities in the military have expanded dramatically" and in 2013, the Department of Defense officially lifted the ban on women in combat and in 2015 "lifted all gender-based restrictions on military service."  Judge Miller also rejected the Government's argument based on Trump v. Hawai'i (2018), that there should be considerable deference, finding "the Trump decision is tangential, at best."

Thus, Judge Miller applied the intermediate scrutiny merited by sex classifications as articulated by the Court most recently in Sessions v. Morales-Santana (2017), and using the language of United States v. Virginia (VMI) (1996): "The justification must be genuine, not hypothesized or invented post hoc in response to litigation. And it must not rely on overbroad generalizations about the different talents, capacities, or preferences of males and females."

Judge Miller rejected both of the Government's two asserted interests. First, the Government argued that women's eligibility to serve in combat is distinct from the women's conscription because conscription could lead to trade-offs for the military, meaning that requiring women to register for the draft could affect women's enlistment by increasing the perception that they would be required to serve in combat. Judge Miller found that this argument "smacks of 'archaic and overbroad generalizations' about women's preferences." Additionally, Judge Miller observed that this argument "appears to have been created for litigation."  Second, the Government argued that Congress preserved the male-only registration requirement out of concern for the administrative burden of registering and drafting women for combat. But even if women are  statistically less physically suited for combat,

the relevant question is not what proportion of women are physically eligible for combat—it may well be that only a small percentage of women meets the physical standards for combat positions.  However, if a similarly small percentage of men is combat-eligible, then men and women are similarly situated for the purposes of the draft and the MSSA’s discrimination is unjustified. Defendants provide no evidence that Congress ever looked at arguments on this topic and then made a “studied choice” between alternatives based on that information.

Had Congress compared male and female rates of physical eligibility, for example, and concluded that it was not administratively wise to draft women, the court may have been bound to defer to Congress’s judgment. Instead, at most, it appears that Congress obliquely relied on assumptions and overly broad stereotypes about women and their ability to fulfill combat roles.“ Thus, Defendants’ second proffered justification appears to be an “accidental by—product of a traditional way of thinking about females,”’ rather than a robust, studied position.

[citations omitted].

Judge Miller issued a declaratory judgment that the male-only draft violates equal protection, but did not issue an injunction because the Plaintiffs did not request or brief it in their summary judgment motion and materials. 

[image: Viet Nam War era draft card via]

February 25, 2019 in Courts and Judging, Equal Protection, Gender, Opinion Analysis, Recent Cases | Permalink | Comments (0)