Friday, October 22, 2021

Missouri, Texas Sue Biden Administration for Stalling on Border Wall

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.

October 22, 2021 in Cases and Case Materials, Congressional Authority, Executive Authority, News, Separation of Powers | Permalink | Comments (0)

High Court Leaves Texas Abortion Ban in Place, but Expedites Appeal

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.)

October 22, 2021 in Abortion, Cases and Case Materials, Federalism, Fourteenth Amendment, Fundamental Rights, News | Permalink | Comments (0)

Tuesday, October 19, 2021

Federal Government Asks Supreme Court to Halt Texas's Antiabortion Law

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.

October 19, 2021 in Abortion, Cases and Case Materials, Federalism, Fourteenth Amendment, Fundamental Rights, News, Preemption, Reproductive Rights | Permalink | Comments (0)

Trump Sues to Stop House Committee From Obtaining January 6 Records

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."

October 19, 2021 in Cases and Case Materials, Congressional Authority, Executive Authority, Executive Privilege, News, Separation of Powers | Permalink | Comments (0)

Friday, September 17, 2021

Happy Constitution Day!

Today's the day we commemorate the Constitution's signing, on September 17, 1787. Celebrations are happening around the countries. You might want to particularly check out programming at the National Constitution Center.

Happy Constitution Day!

September 17, 2021 in News | Permalink | Comments (0)

Thursday, September 2, 2021

Supreme Court Allows Texas Anti-Abortion Law To Go Into Effect

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.

September 2, 2021 in Abortion, Courts and Judging, News, Opinion Analysis | Permalink | Comments (0)

Friday, August 27, 2021

Supreme Court Halts CDC Eviction Moratorium

The Supreme Court issued an emergency order late yesterday halting the CDC's eviction moratorium. While the ruling technically only vacates the stay of a lower court ruling striking the moratorium (and allows the government's appeal to move forward, but without a stay of the district court's ruling), it all but decides the underlying merits.

The Court said that the CDC lacked statutory authority to impose the moratorium. The applicable provision, 42 U.S.C. Sec. 264(a), states:

The Surgeon General, with the approval of the [Secretary of Health and Human Services], is authorized to make and enforce such regulations as in his judgment are necessary to prevent the introduction, transmission, or spread of communicable diseases from foreign countries into the States or possessions, or from one State or possession into any other State or possession. For purposes of carrying out and enforcing such regulations, the Surgeon General may provide for such inspection, fumigation, disinfection, sanitation, pest extermination, destruction of animals or articles found to be so infected or contaminated as to be sources of dangerous infection to human beings, and other measures, as in his judgment may be necessary.

In short, the Court said that the moratorium exceeded this authority, because it wasn't in line with the kind of specific examples in the second sentence. In other words, it read the second sentence as limiting the authority in the first sentence. It said that if the statute authorized the moratorium, then it could authorize nearly any measure--"a breathtaking amount of authority"--and this goes too far. The Court also said that Congress was "on notice" but failed to enact legislation to specifically reauthorize the moratorium. (Congress had previously specifically authorized the moratorium in COVID relief legislation, but that authorization lapsed, leaving only Section 264(a) as possible authority for the moratorium.)

The Court said that "[t]he applicants not only have a substantial likelihood of success on the merits--it is difficult to imagine them losing."

Justice Breyer dissented, joined by Justices Sotomayor and Kagan. He read the statute just the opposite--that the first sentence plainly authorizes a moratorium, and that the second sentence, if anything, only expands the authority in the first sentence. Justice Breyer also focused on the moratorium's tailoring (geographic and otherwise), and the harm that would likely result to tenants under the Court's holding.

The ruling halts the CDC's eviction moratorium. But Congress could change this by specifically reauthorizing the CDC to issue a moratorium.

The ruling does nothing to state and local moratoriums; it only addresses the CDC's moratorium.

August 27, 2021 in Cases and Case Materials, Congressional Authority, Executive Authority, News, Opinion Analysis, Separation of Powers | Permalink | Comments (0)

Fifth Circuit Tosses Case Challenging Removal of Confederate Monument

The Fifth Circuit dismissed a case challenging San Antonio's removal of a monument of a confederate soldier for lack of standing. The ruling ends the challenge. (The statue is already gone.)

The case, Albert Sidney Johnston v. San Antonio, arose when the city removed a confederate monument in a public park. ASJ sued, arguing that the removal violated the First and Fourteenth Amendments.

The court held that ASJ lacked standing. It recognized that ASJ is the successor organization to the Barnard E. Bee chapter of the United Daughters of the Confederacy, which erected the monument in the first place. But it said that ASJ had no property interest in the public park (because "the land was generally inaliable and unassignable") and no right to use the land; and therefore the organization couldn't allege a harm under the First or Fourteenth Amendments.

August 27, 2021 in Cases and Case Materials, Due Process (Substantive), First Amendment, Fourteenth Amendment, News, Opinion Analysis, Standing | Permalink | Comments (0)

Thursday, August 26, 2021

Sixth Circuit Upholds Michigan Schools Mask Mandate Against Free Exercise, Equal Protection Claims

The Sixth Circuit yesterday upheld Michigan's mask mandate in schools against free exercise and equal protection challenges. The mandate expired since the lawsuit began, however, so the ruling only means that Michigan didn't violate the Constitution in implementing the mandate, and that it (and other jurisdictions in the Sixth Circuit) can do it again.

The case, Resurrection School v. Hertel, tested the Michigan Department of Health and Human Service requirement that all persons five years of age and older wear a mask in indoor public settings, including while attending public and private K-12 schools. The requirement contained certain exceptions for eating and drinking, for those "engaging in a religious service," for those who have health conditions that restrict their mask wearing, and others. Resurrection sued, arguing that the mandate violated free exercise and equal protection, among other claims.

While the case was pending, the Department rescinded the mask requirement. The Sixth Circuit nevertheless ruled that the case wasn't moot under the voluntary-cessation and capable-of-repetition-but-evading-review exceptions.

On the merits, however, the court rejected the plaintiffs' claims. The court ruled that the mask requirement was a religiously neutral law of general applicability, and easily satisfied rational basis review. As to religious neutrality, the court declined to look outside the schools for a secular comparator to religious schools (like gyms or movie theaters, as some courts have done), which might've demonstrated that the Department was targeting religious schools; instead, it said that the mask requirement treated religious schools exactly as it treated secular schools--the relevant comparator here.

Identifying a comparable secular activity for religious schools other than a public or private nonreligious school is difficult. Schools educating students in grades K-5 are unique in bringing together students not yet old enough to be vaccinated against COVID-19 in an indoor setting and every day. Accordingly, the proper comparable secular activity in this case remains public and private nonreligious schools.

Even under this broader conception of comparable secular activity, the [Department] orders are not so riddled with secular exceptions as to fail to be neutral and generally applicable. . . .

The court also rejected the plaintiffs' equal protection and substantive due process claims, holding that these were merely repackaged free exercise claims.

August 26, 2021 in Cases and Case Materials, Equal Protection, Free Exercise Clause, News, Opinion Analysis, Religion | Permalink | Comments (0)

Wednesday, August 25, 2021

Ninth Circuit Declines to Halt LA's Eviction Moratorium under Contracts Clause

The Ninth Circuit denied a landlord association a preliminary injunction against Los Angeles's eviction moratorium, imposed in response to COVID. The court ruled that the landlords failed to demonstrate that they were likely to succeed on their Contracts Clause claim.

This appears to be the first appeals court ruling on an eviction moratorium under the Contracts Clause. Recall that the Supreme Court recently ruled against New York's eviction pause for self-certified hardship sufferers. But that case was under the Due Process Clause, not the Contracts Clause.

Neither case necessarily speaks to the validity of the CDC's moratorium. That's because opponents of the CDC's moratorium have raised a different claim--that the CDC lacked authority to impose it.

The case, Apartment Association v. City of Los Angeles, tested LA's eviction moratorium, which, among other things, restricted landlords' ability to evict tenants who suffered a COVID-related hardship. A landlord association sued, arguing that the moratorium violated the Contracts Clause, among other things. The association sought a preliminary injunction, but the district court denied the motion, and the Ninth Circuit affirmed. (While the association raised other claims, the Ninth Circuit ruling only addressed the Contracts Clause, because that's the only basis on which the association appealed.)

The court applied the two-part framework most recently articulated in Sveen v. Melin (2018). The court assumed without deciding that the association satisfied the first part--that the moratorium was a substantial impairment of a contractual relationship. Even if, the court said that the association failed to meet the second part--that the moratorium was an inappropriate or unreasonable way to achieve a significant and legitimate public purpose. The court wrote that "[t]he City fairly ties the moratorium to its stated goal of preventing displacement from homes, which the City reasonably explains can exacerbate the public health-related problems stemming from the COVID-19 pandemic."

The court rejected the association's effort to shoehorn a requirement into the Contracts Clause application to eviction moratoriums that would require that landlords receive reasonable rent during the period of the moratorium. The court said that the association ground this claim in earlier and outdated pre-Blaisdell caselaw that no longer guides the Court's approach to the Contracts Clause, and, in any event, those cases don't require that landlords receive reasonable rent during a moratorium. (Reasonable rent is a factor in the analysis, but it's not determinative.)

August 25, 2021 in Cases and Case Materials, Contract Clause, News, Opinion Analysis | Permalink | Comments (0)

Supreme Court Denies Biden Administration Effort to Halt MPP Pending Appeal

The Supreme Court denied the Biden Administration's request for a stay pending appeal of a lower court order directing the Biden Administration to reinstate the Migrant Protection Protocols program initiated by the Trump Administration. We posted on the lower court's order here.

The ruling means that the Biden Administration must send immigrants along the southern border to Mexico pending their asylum and deportation proceedings, consistent with the MPP, pending the Administration's appeal of the district court's order.

The ruling is a blow to the Biden Administration's effort to halt the controversial program. And while it's only preliminary--the ruling technically only orders the Biden Administration to reinstate the MPP program pending the Administration's appeal on the merits--it also doesn't bode well for the Administration. The very brief order stated that the Administration "failed to show a likelihood of success on the claim that the memorandum rescinding the Migrant Protection Protocols was not arbitrary and capricious." (In support, the Court cited Department of Homeland Security v. Regents of University of California, in which the Court rejected the Trump Administration's effort to rescind DACA as arbitrary and capricious in violation of the Administrative Procedure Act.)

Justices Breyer, Sotomayor, and Kagan indicated that they would have granted the Administration's motion for a stay, but they didn't say why.

August 25, 2021 in Cases and Case Materials, Executive Authority, News, Opinion Analysis, Separation of Powers | Permalink | Comments (0)

Monday, August 23, 2021

Fourth Circuit Says Fed Courts Can't Hear State Claims of Teacher Fired for Using Wrong Pronouns for Student

The Fourth Circuit on Friday ruled that the federal courts lacked jurisdiction to hear a case of a Virginia teacher who was fired for using an incorrect pronoun for a student. The ruling means that the teacher's claims stay in the Virginia state courts.

The case, Vlaming v. West Point School Board, arose when teacher Peter Vlaming was fired for refusing to use a male pronoun for a student who recently gender-transitioned to male. Vlaming sued in Virginia state court, arguing that his termination violated state constitutional due process, free speech, and free exercise, and state statutory rights--all state claims. The Board moved to remove the case to federal court, arguing that Vlaming's complaint raised federal Title IX issues (because Title IX compelled the Board to take action against Vlaming), and that Vlaming's state constitutional claims turned on the parallel federal constitutional provisions, because Virginia interprets these state constitutional provisions in lock step with the federal Constitution.

The Fourth Circuit rejected the arguments. It ruled that a federal defense alone (here, Title IX) can't create federal jurisdiction where the complaint alleges no federal jurisdiction, and that Virginia's practice of interpreting its constitution in lock step with the federal Constitution can't create federal jurisdiction, because Virginia isn't required to interpret its constitution in this way, and it might not in any given case (including this one).

The ruling means that the federal courts won't hear the case. But Vlaming and the Board can make their arguments (including the Board's Title IX defense) when it proceeds in state court.

August 23, 2021 in Cases and Case Materials, Courts and Judging, Federalism, News, Opinion Analysis | Permalink | Comments (0)

Sunday, August 22, 2021

Arizona Supreme Court Says High-Income Tax is Subject to Education Expenditure Clause

The Arizona Supreme Court ruled that an income tax surcharge on high-income earners, the proceeds of which go to schools, is subject to the education expenditure caps in the state constitutional Education Expenditure Clause. The ruling will likely sharply limit the amount of tax-surcharge revenue that can go to the schools, sharply limiting the voter initiative that created the mechanism in the first place.

The case, Fann v. State of Arizona, tests the constitutionality of Prop 208, a 2020 voter initiative that imposes an income tax surcharge on high-income earners to provide direct funding to the schools. Prop 208 imposes a 3.5 percent surcharge on high-income earners, places those funds in a "student support and safety fund," and requires the fund to distribute the revenue to school districts and charter schools through "grants."

High-income earners sued, arguing that the provision violates the state constitutional Education Expenditure Clause on its face. This Clause, adopted by Arizona voters in 1980, sets an "aggregate expenditure limitation" for each Arizona school district. Put simply, it creates a cap on educational expenditures for each district. The provision contains an exception, however, for "grants, gifts, aid or contributions of any type except amounts received directly or indirectly in lieu of taxes received directly or indirectly from any private agency or organization, or any individual." The plaintiffs' challenge, therefore, raises the question whether Prop 208 is really a "grant" program.

The court ruled that it's not. "Considering the context of the Grant Exception, and in light of canons of construction, we conclude the more plausible reading of the Grant Exception is that the language 'received directly or indirectly from any private agency or organization, or any individual' modifies the entire sentence and limits the word 'grants' to private, non-governmental voluntary contributions." The court ruled that Prop 208 is facially unconstitutional insofar as it "incorrectly characterizes the allocated monies" to circumvent the Education Expenditure Clause and "to the extent allocated revenues exceed the expenditure limit set by the Education Expenditure Clause."

The court remanded the case to determine "whether such payments will in fact exceed the constitutional expenditure limitation." But it gave a clue as to how this'll all come out:

if the expenditure limit remains at current levels, Prop. 208's projected $827 million in revenues will far outpace its permissible spending, even accounting for Prop. 208 expenditures that are not subject to the expenditure limit. Furthermore, the EEC projects that the expenditure limit amount will decrease by 4.6%, or approximately $300,000,000. These facts strongly suggest that Prop. 208 will produce far more revenue than it can constitutionally spend.

The court also held that Prop 208 did not violate the state constitutional Tax Enactment Clause. That Clause says that an "Act that provides for a net increase in state revenues" has to get a super-majority in each house and the governor's signature to become effective. The court said that the Clause doesn't apply to voter initiatives like Prop 208, however, because a voter initiative isn't an "Act": the legislature enacts "Acts," while voter initiatives are "measures."

August 22, 2021 in Cases and Case Materials, News, Opinion Analysis, State Constitutional Law | Permalink | Comments (0)

Saturday, August 21, 2021

Tenth Circuit Strikes Portions of Kansas Farm Animal Protection Act under First Amendment

The Tenth Circuit ruled that three part of the Kansas Farm Animal and Field Crop and Research Facilities Protection Act violated free speech. The ruling enjoins the government from enforcing those provisions.

The case, Animal Legal Defense Fund v. Kelly, tests three part of the Act, which, as a general matter criminalizes certain actions directed at an animal facility without effective consent of the owner of the facility and with intent to damage the enterprise of the facility. ALDF sued, arguing that the Act violated free speech, because ALDF investigators sometimes lie about their association with ALDF in order to get jobs at the facilities under cover, and would therefore violate the Act.

The Tenth Circuit agreed. The court examined three parts of the Act: subsection (b), which forbids acquiring or exercising control over an animal facility without effective consent of the owner and with intent to damage the enterprise; subsection (c), which forbids recording, attempting to record, or trespassing to record on an animal facility's property without effective consent of the owner and with intent to damage the enterprise; and subsection (d), which forbids trespassing on an animal facility without effective consent of the owner and with intent to damage the enterprise. The court ruled that these were viewpoint-based restrictions on speech (because they each require the "intent to damage the enterprise," as opposed, for example, to laud the enterprise), and subject to strict scrutiny. The court said that Kansas didn't even bother to try to justify the provisions under strict scrutiny, and therefore they failed.

Judge Hartz dissented, arguing, among other things, that property owners have a right to exclude that the majority's approach ignores; "that a fraudulently obtained consent to enter another's property, particular the type of entry desired by Plaintiffs, is not protected by the First Amendment"; and that the court should've excised any offending elements of the Act rather than ruling them unconstitutional.

August 21, 2021 in Cases and Case Materials, First Amendment, News, Opinion Analysis, Speech | Permalink | Comments (0)

Ninth Circuit Tosses OAN's Defamation Suit Against Rachel Maddow

The Ninth Circuit ruled this week that OAN failed to state a case for defamation against MSNBC host Rachel Maddow for stating that OAN "really literally is paid Russian propaganda." The ruling ends OAN's defamation suit.

The case, Herring Networks, Inc. v. Maddow, arose when Maddow ran a segment on OAN reporter Kristen Rouz, who, according to a story in the Daily Beast, also wrote stories for pay for Sputnik. At one point during the longer segment, Maddow said, "In this case, the most obsequiously pro-Trump right wing news outlet in America really literally is paid Russian propaganda." Herring then sued for defamation, and Maddow moved to strike the complaint under California's anti-SLAPP statute.

The Ninth Circuit ruled for Maddow. The court examined the broad context of the statement, the limited context of the statute, and the ability to determine the truth or falsity of the statement and concluded that it simply wasn't a statement of fact that could support a defamation claim:

In sum, two of the factors outlined in [circuit precedent]--the general context and the specific context of the contested statement--negate the impression that the statement is an assertion of objective fact. While the third factor [the ability to determine the truth or falsity of the statement] tilts in the other direction, we conclude that Maddow's contested statement fits within "the 'rhetorical hyperbole' [that] has traditionally added much to the discourse of our Nation."

August 21, 2021 in Cases and Case Materials, First Amendment, News, Opinion Analysis, Speech | Permalink | Comments (0)

Court Temporarily Stays District Judge Order in MPP Case

In an order by Justice Alito, the Supreme Court late yesterday temporarily stayed the district court injunction directing the Biden Administration to reinstate former President Trump's MPP policy until Tuesday at midnight. The brief order will allow the full Court to consider the Biden Administration's emergency application for a stay pending appeal.

Recall that the district court issued a permanent, nationwide injunction directing the Biden Administration to reinstate the MPP policy and send certain immigrants to Mexico pending their deportation proceedings. The Administration sought a stay of the injunction pending appeal, but the Fifth Circuit declined. The Administration then sought an emergency stay at the Supreme Court.

The Supreme Court's order temporarily stays the injunction until Tuesday. It also directs the plaintiffs in the case to file their response to the Administration's emergency application by 5 p.m. on Tuesday. A Court order will presumably follow before midnight Tuesday.

All this is still preliminary, though: the Biden Administration is still pursuing its appeal on the merits to the Fifth Circuit. The Court's ruling late yesterday only means that the Biden Administration need not reinstate the MPP policy pending its appeal of the district court order until Tuesday, and perhaps later, depending on what the Court says.

The Court's docket for the case is here.

August 21, 2021 in Cases and Case Materials, Courts and Judging, Executive Authority, News, Opinion Analysis, Separation of Powers | Permalink | Comments (0)

Fifth Circuit Rejects First Amendment Retaliation Claim for Union Activities

The Fifth Circuit earlier this week rejected free-speech and free-association claims of a public employee, who was also a public-union leader, after he was terminated for performance reasons. The court also rejected the plaintiffs' class-of-one equal protection claim.

The case, United Steel v. Anderson, arose when Sergio Castilleja, a community service officer for the Bexar County Community Supervision and Corrections Department, was terminated for violating Department rules and other performance issues, including using Department equipment for union activities. But prior to his termination, Castilleja had been elected president of the Bexar County Probation Officers Association, and, in that role, oversaw a no-confidence petition against the Department chief, Jarvis Anderson. When he was fired, Castilleja's children and various unions sued, arguing that the Department terminated him for his union activities in violation of the First Amendment and that the Department treated him differently than officers in other unions in violation of equal protection.

The Fifth Circuit rejected the claims. The court ruled that the Department provided a legitimate, non-speech and non-association reason for his termination--his performance deficiencies--and that the plaintiffs failed to show that this reason was a pretext for reprisal for protected speech and association. The court also ruled that the unions' equal protection argument failed, because under Engquist v. Oregon Department of Agriculture class-of-one equal protection claims (where one person alleges unequal treatment as compared to similarly situated persons) don't apply to discretionary public-employment decisions.

August 21, 2021 in Association, Cases and Case Materials, Equal Protection, First Amendment, News, Opinion Analysis, Speech | Permalink | Comments (0)

Friday, August 20, 2021

Fifth Circuit Strikes Fee for Latex Clubs

The Fifth Circuit ruled that a $5 per person fee for "latex clubs" in Texas violated free speech and due process. The ruling means that state authorities can't enforce the fee against sexually oriented clubs where dancers wear opaque latex breast coverings and shorts.

The case, Texas Entertainment Association v. Hegar, arose when Texas enacted a "sexually oriented business" fee that imposed a $5 charge per customer on businesses that serve alcohol in the presence of nude entertainment. In response, some sexually oriented businesses required dancers to wear opaque latex breast coverings and shorts. The gambit allowed these "latex clubs" to dodge the $5 fee for a good eight years, until the Texas comptroller issued a rule that excluded latex from the definition of "clothing" under the law. The rule meant that latex clubs now had to pay the fee.

The TEA, which represents sexually oriented businesses in Texas, sued, arguing that the comptroller's move violated free speech, due process, and equal protection. The Fifth Circuit agreed, except as to equal protection.

The court ruled that the comptroller's redefinition was a content-based restriction on speech (and not content-neutral), because the comptroller produced no evidence that the redefinition served any non-speech purpose (like reducing the secondary effects of latex clubs). (The court declined to shoehorn the state's initial asserted interest behind the $5 fee--reducing secondary effects--into the comptroller's decision, more than eight years later, and based on no evidence.) The court applied strict scrutiny, and ruled that the comptroller's action failed.

The court also ruled that the comptroller's action violated due process. The court said that the comptroller previously declined to impose the fee on latex clubs--indeed, that the comptroller told one club that "everything was good"--and upset the latex clubs' "settled expectation that they would not be subject to" the fee.

Finally, the court ruled that the action didn't violate equal protection. The court said that latex clubs were more like nude dancing establishments (which were already subject to the fee), and not like sports bars (which were not). Because the move did not treat similarly situated businesses differently (latex clubs aren't similar to sports bars), the court ruled that it didn't violate equal protection.

August 20, 2021 in Cases and Case Materials, Due Process (Substantive), Equal Protection, First Amendment, News, Opinion Analysis, Speech | Permalink | Comments (0)

Third Circuit Allows Case Challenging Firing Range Zoning Restrictions to Move Forward

The Third Circuit ruled earlier this week that a lower court erred in dismissing a shooting-range owner's challenge to two local zoning ordinances that restrict how and where a shooting range can operate. The ruling is preliminary: it only means that the case can move forward to the merits, and that the local government, Robinson Township, Pennsylvania, has a chance to show that its zoning rules survive Second Amendment scrutiny. 

The case, Drummond v. Robinson Township, tests two zoning ordinances that affect the plaintiff's gun range. The first ordinance limits gun clubs to "pistol range, skeet shoot, trap and skeet, and rim-fire rifles," and disallows center-fire rifles. The second ordinance prohibits a for-profit entity from running a shooting range in one of the Township's zoning districts, but allows them in two others.

The district court dismissed the complaint, ruling that the plaintiff failed to establish a Second Amendment case. But the Third Circuit reversed.

The court ruled first that the ordinances were subject to Second Amendment scrutiny. The court ruled that "neither type of regulation rests on deep historical foundations, so both challenged rules attract heightened scrutiny."

The court next applied intermediate scrutiny. It ruled that "[a]t the outset, there is no doubt that the ordinance promotes a substantial government interest. It aims to advance 'public health, safety and welfare.'" But it went on to say that the Township failed at this stage of the litigation to show that its ordinances were sufficiently tailored to meet that interest. It said that because the ordinances were "outliers," the wind was against them. (That's because "[w]hen a challenged law has few analogues, it raises concern 'that the [government] has too readily foregone options that could serve its interests just as well, without substantially burdening' protected conduct.'") It also said that the Township (again, at this early stage of the litigation) failed to show that it "'seriously considered' more targeted tools for achieving its ends."

The court remanded the case for further proceedings.

August 20, 2021 in Cases and Case Materials, News, Opinion Analysis, Second Amendment | Permalink | Comments (0)

Texas Supremes Say State House Can Arrest Absent Members

The Texas Supreme Court ruled earlier this week that present members of the Texas House of Representatives can order the arrest and detention of absent House members under the state constitution and House rules.

The case, In re Greg Abbott, arose when Texas House Democrats fled the state in order to deny the House a quorum to pass voting restrictions. (A quorum for the state House is two-thirds of the members.) Present members voted to invoke House Rule 5, which authorizes a bare majority to "arrest" absent members. The absent members sued to halt the move, and the lower court issued a temporary restraining order prohibiting the House from arresting them. The Texas Supreme Court reversed.

The court pointed to Article III, Section 10 of the Texas Constitution, which provides that while two-thirds of a state legislative chamber "constitute[s] a quorum to do business," "a smaller number" may "compel the attendance of absent members, in such manner and under such penalties as each House may provide." According to the court, "[j]ust as article III, section 10 enables 'quorum-breaking' by a minority faction of the legislature, it likewise authorizes 'quorum-forcing' by the remaining members." The court wrote,

After examining the text and history of article III, section 10, together with the relevant judicial precedent, we conclude that the disputed provision means just what it says. . . . The text of article III, section 10 is clear, and the uniform understanding of the provision throughout our state's history--including around the time of its enactment--has been that it confers on the legislature the power to physically compel the attendance of absent members to achieve a quorum.

The court pointed to language in Kilbourn v. Thompson (1880), which interpreted the parallel provision in the U.S. Constitution, as persuasive authority. It wrote, "In Kilbourn, the U.S. Supreme Court's interpreted the federal constitution's quorum-forcing language to vest expansive power in Congress to determine the 'Manner' by which to compel 'the Attendance of absent Members.' In the Court's words, 'the penalty which each House is authorized to inflict in order to compel attendance of absent members may be imprisonment.'"

August 20, 2021 in Cases and Case Materials, News, Opinion Analysis, State Constitutional Law | Permalink | Comments (0)