Thursday, August 15, 2019
Theatrical Performance featuring readings from
Wednesday, August 14, 2019
Check out Josh Blackman and Seth Barrett Tillman's piece at The Volokh Conspiracy on why the federal courts lack equitable jurisdiction in the border wall funding case and the emoluments challenge. In short: The plaintiffs don't state a cause of action (that would have been available under the equitable jurisdiction of the High Court of Chancery in England in 1789).
Blackman and Tillman elaborate on the argument (and others) in this amicus brief, in the Fourth Circuit emoluments case.
Here's from Volokh:
In order to invoke a federal court's equitable jurisdiction, Plaintiffs cannot simply assert in a conclusory fashion that the conduct of federal officers is ultra vires, and, on that basis, seek equitable relief. "Equity" cannot be used as a magic talisman to transform the plaintiffs into private attorneys general who can sue the government merely for acting illegally. Rather, in order to invoke the equitable jurisdiction of the federal courts, plaintiffs must put forward a prima facie equitable cause of action.
A plaintiff's mere request for equitable or injunctive relief does not invoke a federal court's equitable jurisdiction.
[Otherwise, plaintiffs' approach] would open the courthouse door to every plaintiff with Article III standing, who asserts that a federal official engaged in illegal conduct.
Tuesday, August 13, 2019
The Ninth Circuit ruled yesterday in National Association for Gun Rights, Inc. v. Mangan that Montana's electioneering disclosure requirements did not violate the First Amendment. The ruling keeps the requirements in place.
The Supreme Court has upheld disclosure requirements against First Amendment challenges, and so this ruling is really unremarkable. But at the same time it represents one in the next set of First Amendment challenges to campaign finance laws designed to spur this new Court to strike even more ways that government tries to regulate money in politics.
The case arose when the National Association for Gun Rights sought to spend more than $250 on an "electioneering communication." Montana law requires that any such organization register as a political committee. And such registration, in turn, subjects the group to requirements to disclosure expenditures.
The Association argued that the state's definition of electioneering communication was facially overbroad and unconstitutional as applied to it. In particular, the Association said that the First Amendment permits states to require disclosure only of express advocacy for or against a specific candidate, not the kind of general information that it sought to distribute.
The Ninth Circuit rejected the challenge. The court said that disclosure requirements are valid, even as to non-express-advocacy communications, because, under "exacting scrutiny," they are designed to promote the state's interests in transparency and discouraging circumvention of its electioneering laws.
The D.C. Circuit ruled today in Almaqrami v. Pompeo that plaintiffs' claim against the government for denying them "diversity visas" was not moot, even though the plaintiffs are from countries covered by President Trump's travel ban, upheld under Trump v. Hawaii. The ruling sends the case back to the district court for a decision on the merits. By the plaintiffs' own reckoning, however, even a win (alone) wouldn't guarantee their admittance to the United States.
The plaintiffs, nationals of Iran and Yemen, won the 2017 diversity visa lottery. But they were denied visas pursuant to a State Department Guidance Memo, instructing consular officers about how to evaluate diversity visa applications in light of Trump v. Int'l Refugee Assistance Project (the Court's earlier ruling allowing President Trump's executive order (2) to take effect while the Court considered appeals of the preliminary injunctions against the travel ban). They sued, arguing that the relevant section of the Immigration and Nationality Act authorized the President to restrict only entry, not visas, and that their denial violated the INA provision that bans discrimination by nationality.
Just before the end of Fiscal Year 2017, the district court ordered State to "hold those [unused diversity] visa numbers to process [p]laintiffs' visa applications in the event the Supreme Court finds [EO-2] to be unlawful." (Recall that the President replaced EO-2 with the (third) version of the travel ban that ultimately went to the Court.)
After the Court upheld the travel ban in Trump v. Hawaii, the government moved to dismiss the case as moot, arguing that EO-2 and the guidance memo under which the consular officers denied the plaintiffs visas were now expired, and that the district court's order was conditioned on the Court ruling that EO-2 was unlawful (which didn't happen).
The district court accepted this argument and dismissed the case as moot, but the D.C. Circuit reversed.
The D.C. Circuit ruled that because the district court issued its order before the end of Fiscal Year 2017, it could still grant relief to the plaintiffs (by ordering State to grant the visas). As to that language that seems to condition relief on the Court striking the travel ban (which of course it didn't), the D.C. Circuit said that the district court's order could be read to mean (1) that State must hold unused diversity visas to enable a later court judgment and (2) that a specific judgment would issue if the Court ruled a certain way. (1) allows the district court to order State to issue the visas; (2) would've required it.
Moreover, the court said that the plaintiffs could still get the relief they sought. That's because the district court might agree with them that the travel ban only applied to entry, not visas, and that the INA prohibits discrimination in issuing visas by nationality--even under Trump v. Hawaii. The court didn't opine on those questions, however; instead, it sent the case back to the district court for a ruling on them.
A win in the district court (or on appeal) could mean that the plaintiffs get their visas, and even get consideration under exceptions to the travel ban. But actual entry will require more: a decision that they meet an exception to the travel ban.
Thursday, August 8, 2019
The Barry University School of Law American Constitution Society Student Chapter and Law Review and the Texas A&M University School of Law just issued a Call For Papers for their 2020 Constitutional Law Scholars Forum.
The Forum is on Friday, February 28, 2020, in Orlando. The proposal deadline is December 1, 2019.
Thursday, August 1, 2019
Judge Christopher R. Cooper (D.D.C.) dismissed as moot a case by Atlas Brew Works arguing that the government's inability to approve its beer label during the government shutdown earlier this year violated its First Amendment right to free speech. In particular, Judge Cooper ruled that Atlas's claim didn't meet the mootness exception for cases that are "capable of repetition but evading review."
The case, Atlas Brew Works v. Barr, arose during the government shutdown, when, because of a lack of appropriated funds, the Alcohol and Tobacco Tax and Trade Bureau (in Treasury) couldn't approve Atlas's pending application for a label, as required by the Federal Alcohol Administration Act. (The FAA requires Bureau approval of a label before a brewer can distribute its beer in interstate commerce. It provides criminal penalties for violators.) Atlas filed suit, arguing that the government's failure to approve its pending label infringed on its right to free speech, because the lack of approval meant that it couldn't legally distribute its seasonal beer, which, without an approved label, would go stale. (Atlas put it this way: "[i]t cannot be denied the right to speak for lack of meeting an impossible condition.") Atlas sought a temporary restraining order and preliminary injunction preventing the Justice Department from enforcing the FAA's criminal sanctions against it.
Once the shutdown ended, the government moved to dismiss the case as moot. Yesterday, the court agreed.
The court ruled first that Atlas's claim couldn't survive as a challenge to the government's policy, because, in short, there's no ongoing policy behind the shutdown that would infringe on Atlas's free speech.
The court ruled next that Atlas's claim was not capable of repetition but evading review. Judge Cooper explained:
To recap the boxes that must be checked for this dispute to recur: a lapse in appropriations must happen; the lapse must affect the Treasury Department; the lapse must last long enough to actually cause a shutdown; Treasury must respond to the shutdown by shuttering the [beer-label approval process under the FAA]; and Atlas must have a [label] application pending at the time the shutdown begins or file one shortly thereafter. In the Court's view, the combination of these contingencies takes this case beyond the limits of the capable-of-repetition exception to mootness.
Tuesday, July 30, 2019
District Court Tosses DNC's Case Against Russia, Trump Campaign for Hacking its Computers, Distributing Stolen Materials
Judge John G. Koeltl (S.D.N.Y.) today dismissed the Democratic National Committee's lawsuit against the Russian Federation, the Trump Campaign, and individuals associated with the campaign for hacking into DNC computers in the 2016 presidential election and distributing stolen material through WikiLeaks.
The ruling ends the case, unless and until the DNC appeals.
The DNC brought the case under a variety of federal statutes, including RICO, and state common law trespass and conversion. The DNC alleged that Russia unlawfully hacked DNC computers and distributed stolen material, and that this benefited the Trump campaign, which "welcomed" the help.
The court dismissed the claims against Russia under the Foreign Sovereign Immunities Act. (The court said that exceptions to the FSIA don't apply because not all of Russia's activities occurred within the United States.) It dismissed the claims against the other defendants under the First Amendment. Here's the short version why:
the First Amendment prevents such liability in the same way [under Bartnicki v. Vopper, ed.] it would preclude liability for press outlets that publish materials of public interest despite defects in the way the materials were obtained so long as the disseminator did not participate in any wrongdoing in obtaining the materials in the first place. The plausible allegations against the remaining defendants are insufficient to hold them liable for the illegality that occurred in obtaining the materials from the DNC.
So what about all the contacts between the defendants: Don't they show that the defendants "participated in wrongdoing"? The court said no: the DNC simply didn't plead sufficient facts to show this.
The court rejected the DNC's attempt to distinguish or work around Bartnicki, ruling that the case doesn't permit a challenge for stolen trade secrets, or for "after-the-fact" coconspiracy to steal the documents.
The court ruled that there were other reasons to dismiss the case, based on some of the specific causes of action.
Monday, July 29, 2019
Judge James S. Boasberg (D.D.C.) ruled today that the Secretary of Health and Human Services violated the Administrative Procedure Act in approving a state's proposed work requirements for its Medicaid recipients.
The ruling in Philbrick v. Azar comes just months after the court struck HHS's approvals for Arkansas's and Kentucky's proposed work requirements.Those rulings are now on appeal to the D.C. Circuit.
The government didn't change its position or arguments from the earlier cases, suggesting that it's banking on higher courts to rule in its favor and uphold the approvals.
Judge Boasberg ruled here, as in the earlier cases, that HHS didn't sufficiently consider the purpose of the Medicaid program--to provide health care for the financially needy--in granting the approvals for work requirements. The court noted that the requirements mean that Medicaid beneficiaries lose benefits, not gain them, in direct contradiction to the purpose of the program.
Here's the court's summary:
Plaintiffs argue that the Secretary's approval of New Hampshire's plan suffers from the same deficiency [as the Arkansas and Kentucky plans] and thus must meet the same fate. The Court concurs. On their face, these work requirements are more exacting than Kentucky's and Arkansas's, mandating 100 monthly hours--as opposed to 80--of employment or other qualifying activities. They also encompass a larger age range than in Arkansas, which applied the requirements only to persons 19 to 49. Yet the agency has still not contended with the possibility that the project would cause a substantial number of persons to lose their health-care coverage. That omission is particularly startling in light of information before the Secretary about the initial effects of Arkansas's markedly similar project--namely, that more than 80% of persons subject to the requirements had reported no compliance for the initial months, and nearly 16,900 people had lost coverage. The agency's rejoinders--that the requirements advance other asserted purposes of Medicaid, such as the health and financial independence of beneficiaries and the fiscal sustainability of the safety net--are identical to those this Court rejected with respect to HHS's 2018 approval of Kentucky's program.
The government will surely appeal this ruling, too, and try to get the D.C. Circuit or, ultimately, the Supreme Court to bite at its arguments.
Saturday, July 27, 2019
The Supreme Court late Friday granted the administration's motion for a stay of the district court's permanent injunction, affirmed by the Ninth Circuit, prohibiting the administration from reprogramming funds to build a border wall. The ruling is a significant victory for President Trump. It means that the administration can go ahead with its plans to reprogram funds and build portions of the wall.
This ruling doesn't end the case. But it strongly suggests that any further ruling from the Court will also favor the administration.
The case, Trump v. Sierra Club, involves the Sierra Club's challenge to the administration's reprogramming of $2.5 billion from military accounts to build a border wall. The administration moved to reprogram funds after Congress granted the administration only $1.375 billion (of the $5.7 billion requested by the administration), and restricted construction to eastern Texas, for border wall construction. As relevant here, the administration announced that it would transfer $2.5 billion from Defense Department accounts to the Department of Homeland Security. In order to get the money in the right account, DoD had to transfer funds under Section 8005 of the DoD Appropriations Act of 2019. That section authorizes the Secretary of Defense to transfer up to $4 billion "of working capital funds of the Department of Defense or funds made available in this Act to the Department of Defense for military functions (except military construction)," so long as the Secretary determines that "such action is necessary in the national interest." The funds can be used "for higher priority items, based on unforeseen military requirements, than those for which originally appropriated and in no case where the item for which funds are requested has been denied by the Congress."
The Sierra Club sued, arguing that the transfer violated the law, because wall funding wasn't "unforeseen" and because Congress had previously denied requested wall funding. The district court entered a permanent injunction, and the Ninth Circuit affirmed. The government filed an application for a stay with the Supreme Court.
A sharply, and ideologically, divided Court granted the stay. The Court (the majority comprised of Chief Justice Roberts and Justices Thomas, Alito, Gorsuch, and Kavanaugh) gave only this explanation in its short opinion: "Among the reasons is that the Government has made a sufficient showing at this stage that the plaintiffs have no cause of action to obtain review of the Acting Secretary's compliance with Section 8005." This probably refers to the government's argument that the Sierra Club wasn't within the "zone of interests" protected by Section 8005, and therefore wasn't a proper party to bring the case. It may also refer to the government's argument that the district court and the Ninth Circuit misread the "unforeseen" and "has been denied by the Congress" language in Section 8005. (The government offered a much narrower interpretation of those phrases than the lower courts adopted.)
The Court left the door open for Supreme Court review on a regular writ of certiorari. But given the ruling and alignment in its order granting the stay, it seems unlikely that the Court will rule against the administration.
Justices Ginsburg, Sotomayor, and Kagan wrote (without explanation) that they would have denied the stay. Justice Breyer offered a middle ground: allow the administration to move forward with the contracts it needs to build under its strict timeline, but not allow it to actually begin construction until we get a final say-so from the Court.
Friday, July 12, 2019
In its opinion in Overbey v. Mayor & City Council of Baltimore, the Fourth Circuit held that non-disparagement clauses in settlement of police misconduct claims violates the First Amendment.
Writing for the majority, Judge Henry Floyd, described the non-disparagement clauses that the Baltimore Police Department inserted in 95% of its settlement agreements. Here, Ashley Overbey sued the city for being arrested in her home when she called 911 to report a burglary, resulting in a settlement of $63,000, complete with the usual non-disparagement provision. The Baltimore Sun newspaper reported on the settlement as it went before a city agency for approval, including a negative comment about Overbey from the City Solicitor, and the reporting prompted some anonymous on-line comments, to which Overbey responded online. The City decided that Overbey's online comments violated the non-disparagement clause and thus remitted only half of the settlement amount, retaining $31,500 as "liquidated damages."
The court found that the settlement agreement included a waiver of Overbey's First Amendment rights (rejecting the City's argument that the First Amendment was not implicated by refraining from speaking), and further held that the waiver was "outweighed by a relevant public policy that would be harmed by enforcement." The court rejected the city's arguments, including a fairness argument that the court should enforce Overbey's sale of her speech rights:
Essentially, the City argues that half of Overbey’s settlement sum was earmarked for her silence, and that it would be unfair for Overbey to collect that half of her money when she was not, in fact, silent. When the second half of Overbey’s settlement sum is viewed in this light, it is difficult to see what distinguishes it from hush money. Needless to say, this does not work in the City’s favor. We have never ratified the government’s purchase of a potential critic’s silence merely because it would be unfair to deprive the government of the full value of its hush money. We are not eager to get into that business now.
The court thus reversed the district judge's grant of summary judgment to the city. It's opinion clearly held that "the non-disparagement clause in Overbey's settlement agreement amounts to a waiver of her First Amendment rights and that strong public interests rooted in the First Amendment make it unenforceable and void."
The court also considered the First Amendment claim of the other plaintiff, Baltimore Brew, a local news website, which the district judge had dismissed for lack of standing. The court held that Brew had standing based on its complaint's allegations regarding the City's pervasive use of non-disparagement clauses in settlements with police brutality claimants as it "impedes the ability of the press generally and Baltimore Brew specifically, to fully carry out the important role the press plays in informing the public about government actions." The court stressed that its conclusion was based on the allegations in the complaint and that the evidentiary record should be developed by the district judge.
Dissenting, recent appointee to the bench Judge Marvin Quattlebaum stated that since Overbey entered into the settlement agreement voluntarily — a question the majority stated it need not resolve given its conclusion regarding public interest — the courts should enforce it. The defendants, the dissenting judge argued, have an interest in finality, the certainty of their contract, and gave up their "opportunity for vindication by a judge or jury" and are thus entitled to have the non-
disparagement clause enforced. In a footnote, the dissenting judge found the "hush money" by the majority as "harsh words," suggesting that a better view is that the plaintiff "cannot have her cake and eat it too."
[image: "hush money" circa 1883 via]
Wednesday, July 10, 2019
The Fourth Circuit ruled that Maryland and D.C. lacked standing to pursue their case against President Trump that he's violating the Foreign and Domestic Emoluments Clauses. The decision reverses a district court ruling and dismisses the case.
The ruling means that this case goes away. And while the court only ruled on standing, it also noted that the plaintiffs faced plenty of other obstacles in bringing an emoluments case against the president--everything from the justiciability of emoluments claims to presidential immunity. In other words, even if there's some plaintiff with standing to bring this kind of suit, they'll face serious headwinds for other constitutional reasons.
The ruling is especially notable because it came on the president's motion for mandamus. Mandamus is an extraordinary form of relief, and the standard is quite high. Still, the court ruled that the president met it, underscoring just how wrong the Fourth Circuit thought the district court's ruling was.
The Fourth Circuit held that the plaintiffs lacked standing based on harm to their proprietary interests in their own convention centers when the Trump International Hotel siphons off business from them. According to the court, one problem was that the plaintiffs couldn't show that any violation of the Emoluments Clauses caused their harm:
To begin, the District and Maryland's theory of proprietary harm hinges on the conclusion that government customers are patronizing the Hotel because the Hotel distributes profits or dividends to the President, rather than due to any of the Hotel's other characteristics. Such a conclusion, however, requires speculation into the subjective motives of independent actors who are not before the court, undermining a finding of causation.
Another problem was redressability--that the plaintiffs' requested relief wouldn't redress their harm:
And, even if government officials were patronizing the Hotel to curry the President's favor, there is no reason to conclude that they would cease doing so were the President enjoined from receiving income from the Hotel. After all, the Hotel would still be publicly associated with the President, would still bear his name, and would still financially benefit members of his family.
The court next rejected the plaintiffs' claims of parens patriae standing to protect the economic interests of their citizens. The court said that these claims ran into exactly the same problems that the plaintiffs' own proprietary-harm claims ran into--no causation, no redressability.
Finally, the court rejected the plaintiffs' claim that they suffered an injury to their quasi-sovereign interests--that "[t]heir injury is the violation of their constitutionally protected interest in avoiding entirely pressure to compete with others for the President's favor by giving him money or other valuable dispensations" and that "it is the opportunity for favoritism that disrupts the balance of power in the federal system and injures the District and Maryland." The court said simply that "[t]his alleged harm amounts to little more than a general interest in having the law followed"--not enough for standing.
Tuesday, July 9, 2019
In its opinion in Knight First Amendment v. Trump, the Second Circuit ruled that the "First Amendment does not permit a public official who utilizes a social media account for all manner of official purposes to exclude persons from an otherwise-open dialogue because they expressed views with which the official disagrees." The case arose from challenges to the President, Donald J. Trump, blocking users on Twitter. Recall that United States District Judge for the Southern District of New York, Naomi Reice Buchwald, issued a 75 page opinion based on the parties motions for summary judgment (and stipulated facts) concluding that found that the President's Twitter account, @realdonaldtrump, is in violation of the First Amendment when it blocks other Twitter users based on their political views. A unanimous panel of the Second Circuit affirms that decision.
The Second Circuit opinion, authored by Judge Barrington Parker, first considered the state action threshold. The government attorneys interestingly represented the President to argue that his account is nongovernmental. The court rejected the government attorneys' position that while the @realdonaldtrump Twitter account is not independent of Trump's presidency, that the specific act of blocking should not be considered state action. Further, the Second Circuit rejected the argument that because the person of Donald Trump established the account before becoming President and will retain control after he leaves the presidency, the @realdonaldtrump account must be considered "private" and not subject to the First Amendment: "the fact that government control over property is temporary, or that the government does not 'own' the property in the sense that it holds title to the property, is not determinative." The court stated:
The government’s contention that the President’s use of the Account during his presidency is private founders in the face of the uncontested evidence in the record of substantial and pervasive government involvement with, and control over, the Account. First, the Account is presented by the President and the White House staff as belonging to, and operated by, the President. The Account is registered to “Donald J. Trump, ‘45th President of the United States of America, Washington, D.C.’” The President has described his use of the Account as “MODERN DAY PRESIDENTIAL.” The White House social media director has described the Account as a channel through which “President Donald J. Trump . . . [c]ommunicat[es] directly with you, the American people!” The @WhiteHouse account, an undoubtedly official Twitter account run by the government, “directs Twitter users to ‘Follow for the latest from @POTUS @realDonaldTrump and his Administration.” Further, the @POTUS account frequently republishes tweets from the Account. As discussed earlier, according to the National Archives and Records Administration, the President’s tweets from the Account “are official records that must be preserved under the Presidential Records Act.”
Second, since becoming President he has used the Account on almost a daily basis “as a channel for communicating and interacting with the public about his administration.” The President utilizes White House staff to post tweets and to maintain the Account. He uses the Account to announce “matters related to official government business,” including high‐level White House and cabinet‐level staff changes as well as changes to major national policies. He uses the Account to engage with foreign leaders and to announce foreign policy decisions and initiatives. Finally, he uses the “like,” “retweet,” “reply,” and other functions of the Account to understand and to evaluate the public’s reaction to what he says and does. In sum, since he took office, the President has consistently used the Account as an important tool of governance and executive outreach. For these reasons, we conclude that the factors pointing to the public, non‐private nature of the Account and its interactive features are overwhelming.
The court then proceeded to the merits of the First Amendment claim, finding that viewpoint discrimination violates the First Amendment. Interestingly, it is for this proposition and only this one that the court cites the United States Supreme Court's closely divided case from last month, Manhattan Community Access Corp. v. Halleck. The Second Circuit easily finds the account creates a public forum. The Second Circuit noted that the government did not contest the district judge's conclusion that the plaintiffs were engaged in protected speech, but the government argued that the plaintiffs' speech was not burdened by being blocked. While the court stated that the government was correct that the plaintiffs did not have a First Amendment right to have the president listen to them,
the speech restrictions at issue burden the Individual Plaintiffs’ ability to converse on Twitter with others who may be speaking to or about the President. President Trump is only one of thousands of recipients of the messages the Individual Plaintiffs seek to communicate. While he is certainly not required to listen, once he opens up the interactive features of his account to the public at large he is not entitled to censor selected users because they express views with which he disagrees.
The court also rejected the government's position that the plaintiffs should employ "workarounds" such as creating new accounts, in large part because the government itself conceded that such workarounds burdened speech.
Finally, the Second Circuit rejected the argument that the Twitter account is government speech and thus not subject to the First Amendment. The court stated that while the president's initial tweets are government speech, the interactive features are decidedly not:
Considering the interactive features, the speech in question is that of multiple individuals, not just the President or that of the government. When a Twitter user posts a reply to one of the President’s tweets, the message is identified as coming from that user, not from the President. There is no record evidence, and the government does not argue, that the President has attempted to exercise any control over the messages of others, except to the extent he has blocked some persons expressing viewpoints he finds distasteful. The contents of retweets, replies, likes, and mentions are controlled by the user who generates them and not by the President, except to the extent he attempts to do so by blocking. Accordingly, while the President’s tweets can accurately be described as government speech, the retweets, replies, and likes of other users in response to his tweets are not government speech under any formulation.
The Second Circuit ends with what might be considered a chastisement:
The irony in all of this is that we write at a time in the history of this nation when the conduct of our government and its officials is subject to wide‐open, robust debate. This debate encompasses an extraordinarily broad range of ideas and viewpoints and generates a level of passion and intensity the likes of which have rarely been seen. This debate, as uncomfortable and as unpleasant as it frequently may be, is nonetheless a good thing. In resolving this appeal, we remind the litigants and the public that if the First Amendment means anything, it means that the best response to disfavored speech on matters of public concern is more speech, not less.
Faculty Recruitment Announcement
LOUISIANA STATE UNIVERSITY, PAUL M. HEBERT LAW CENTER seeks to hire tenure-track or tenured faculty in the following areas: federal courts, constitutional law, civil procedure, and evidence. Applicants should have a J.D. from an ABA-accredited law school, superior academic credentials and publications or promise of productivity in legal scholarship, as well as a commitment to outstanding teaching.
LSU is also looking to fill other positions including a director of the Immigration Law Clinic and Assistant Professor of Professional Practice to teach legal analysis and writing.
Applications should include a letter of application, resume, references, and teaching evaluations (if available) to: Melissa T. Lonegrass and Christina M. Sautter, Co-Chairs, Faculty Appointments Committee c/o Pam Hancock (or by email to phancock AT lsu.edu), Paul M. Hebert Law Center, Louisiana State University, 1 East Campus Drive, Baton Rouge, Louisiana 70803-0106
Sunday, June 30, 2019
Judge Haywood S. Gilliam, Jr., (N.D. Cal.) issued a permanent injunction on Friday halting the Trump Administration's efforts to reprogram Defense Department funds to construct portions of a border wall. The ruling largely incorporates the court's reasoning from its earlier preliminary injunction.
The court declined to stay the injunction pending appeal. This means that the injunction will stay in place unless and until the Ninth Circuit vacates it.
The court ruled that Trump Administration officials "are enjoined from taking any action to construct a border barrier in the areas Defendants have identified as El Paso Sector 1, Yuma Sector 1, El Centro Sector, and Tucson Sectors 1-3 using funds reprogrammed by DoD under Sections 8005 and 9002 of the Department of Defense Appropriations Act, 2019."
At the same time, the court denied the plaintiffs' request for a declaratory judgment concerning the government's invocation of Sections 8005 and 9002 beyond those sectors, its invocation of Section 284 (but only because it didn't have to rule on this, see below), and its compliance with the National Environmental Policy Act.
The ruling does not stop the Administration from using other, valid sources of funding for the wall. Thus, the ruling does not stop the Administration from using $1.375 "for the construction of primary pedestrian fencing, including levee pedestrian fencing, in the Rio Grande Valley Sector" under the Consolidated Appropriations Act of 2019 (although that funding comes with its own statutory restrictions). It also does not stop the Administration from using "[a]bout $601 million from the Treasury Forfeiture Fund."
But those together don't come anywhere close to the $5.7 billion sought by the President in the CAA process. That's why this ruling is such a blow to the Administration's effort to build a border wall.
Importantly, the ruling is not based on the President's use of "emergency" power or the President's determination of what's in the "national interest." Instead, the court ruled that the reprogramming violated other statutory provisions.
Here's a quick review of the relevant statutory issues:
Sections 2005, 2009, and 284
Under Section 284, "[t]he Secretary of Defense may provide support for the counterdrug activities . . . of any other department or agency of the Federal Government" if "such support is requested . . . by the official who has responsibility for [such] counterdrug activities." 10 U.S.C. Sec. 284. But the Administration didn't (and doesn't) intend to use appropriated funds under Section 284 for a border wall. Instead, as the court said, "every dollar of Section 284 support to DHS and its enforcement agency, CBP, [for construction of the wall] is attributable to reprogramming mechanisms."
One of those mechanisms is Section 8005 of the 2019 DOD Appropriations Act. That provision authorizes the Secretary of Defense to transfer up to $4 billion "of working capital funds of the Department of Defense or funds made available in this Act to the Department of Defense for military functions (except military construction)." Under the provision, the transfer must be (1) either (a) DOD working capital funds or (b) "funds made available in this Act to the [DOD] for military functions (except military construction)," (2) first determined by the Secretary of Defense as necessary in the national interest, (3) for higher priority items than those for which originally appropriated, (4) based on unforeseen (5) military requirements, and (6) in no case where the item for which funds are requested has been denied by Congress.
The court ruled in its earlier order granting a preliminary injunction that the plaintiffs are likely to show that the funds were denied by Congress (because Congress considered, and denied, full funding for the wall); that the transfer is not based on "unforeseen military requirements" (because there was nothing "unforeseen" about this, as evidenced by "the Administration's multiple requests for funding for exactly that purpose dating back to at least early 2018"); and that the Administration's interpretation of Section 8005 would raise constitutional questions (because that interpretation would "authorize the Acting Secretary of Defense to essentially triple--or quintuple, when considering the recent additional $1.5 billion reprogramming--the amount Congress allocated to this account for these purposes, notwithstanding Congress's recent and clear actions in passing the CAA, and the relevant committees' express disapproval of the proposed reprogramming," and "reading Section 8005 to permit this massive redirection of funds under these circumstances likely would amount to an 'unbounded authorization for Defendants to rewrite the federal budget'" in violation of the separation of powers).
In yesterday's order granting a permanent injunction, the court also rejected the Administration's effort to use Section 9002 of the DOD Appropriations Act of 2019 as a mechanism for reprogramming, because "Section 9002 authority . . . is subject to Section 8005's limitations."
Given that the government acknowledged that "all of the money they plan to spend on border barrier construction under Section 284 is money transferred into the relevant account under Sections 8005 and 9002 . . . the Court's ruling as to Sections 8005 and 9002 obviates the need to independently assess the lawfulness of Defendants' invocation of Section 284."
Section 2808 authorizes the Secretary of Defense to "undertake military construction projects, and may authorities the Secretaries of the military departments to undertake military construction projects, not otherwise authorized by law." 10 U.S.C. Sec. 2808. The provision requires that the President first declare a national emergency under the National Emergencies Act. The court previously ruled that "it is unclear how border barrier construction could reasonably constitute a 'military construction project' such that Defendants' invocation of Section 2808 would be lawful." The court incorporated that reasoning into its order granting a permanent injunction.
NEPA requires the government to undertake an environmental impact assessment of agency actions. The court ruled previously that DHS validly waived NEPA's requirements as to the wall, and that the actions therefore don't violate NEPA. It incorporated that reasoning on Friday.
Thursday, June 27, 2019
In its highly anticipated opinion in Department of Commerce v. New York on the issue of whether the decision by Secretary of Commerce Wilbur Ross to include a citizenship question on the main census questionnaire for 2020 is lawful, the Court held that given the "unusual circumstances" of the case, the matter should be remanded to the agency to provide a "reasoned explanation" for its decision pursuant to the Administrative Procedure Act (APA), thus affirming the district court on this point.
Chief Justice Roberts's opinion for the Court is relatively brief — 29 pages — but the brevity is undercut by the shifting alliances within the opinion's sections and the additional 58 pages of opinions concurring in part and dissenting in part.
Recall the basic issue from oral argument: whether the challengers had standing, the actual enumeration requirements in the Constitution, Art. I, § 2, cl. 3, and Amend. XIV, § 2, and the nonconstitutional issues centering on the Administrative Procedure Act. The equal protection argument receded into the background on appeal, but has re-emerged in other proceedings.
After explaining the facts and procedural history, including the rather unusual question of whether the Secretary of Commerce, Wilbur Ross, should be deposed, the Court unanimously held the challengers had standing, rejecting the government's contrary contention: "we are satisfied that, in these circumstances, respondents have met their burden of showing that third parties will likely react in predictable ways to the citizenship question, even if they do so unlawfully and despite the requirement that the Government keep individual answers confidential."
A majority of the Court, Roberts joined by Thomas, Alito, Gorsuch, and Kavanaugh — held that the Enumeration Clause did not provide a basis to set aside the determination of Wilbur Ross. The majority held that the Constitution vests Congress with virtually unlimited discretion to conduct the census, and that Congress has delegated this broad authority to the Secretary of Commerce. The majority stated that "history matters" so that "early understanding and long practice" of inquiring about citizenship on the census should control.
A notably different but numerically larger — 7 Justices — rejected the government's contention that the discretion given by Congress to the Secretary of Commerce is so broad as to be unreviewable. There is "law to apply" and the statute provides criteria for meaningful review. Only Justices Alito and Gorsuch disagreed with this conclusion.
And yet another majority, the same majority as the holding for no claim under the Enumeration Clause — Roberts was joined by Thomas, Alito, Gorsuch, and Kavanaugh — rejected the claim "at the heart of this suit" that Secretary Ross "abused his discretion in deciding to reinstate the citizenship question." Essentially, this majority held that because the statute gives the Secretary to make policy choices and "the evidence before the Secretary hardly led ineluctably to just one reasonable course of action."
That same majority rejected the claim of violations of the APA by Secretary Ross in the collection of information and data, and even if he did so, it was harmless.
Finally, the Chief Justice's opinion for the Court — this time with a majority of Justices Ginsburg, Breyer, Sotomayor, and Kagan, considered the district judge's conclusion that the decision of the Secretary of Commerce, Wilbur Ross, rested on a pretextual basis. The Court's opinion reviewed the evidence presented to the district court:
That evidence showed that the Secretary was determined to reinstate a citizenship question from the time he entered office; instructed his staff to make it happen; waited while Commerce officials explored whether another agency would request census-based citizenship data; subsequently contacted the Attorney General himself to ask if DOJ would make the request; and adopted the Voting Rights Act rationale late in the process. In the District Court’s view, this evidence established that the Secretary had made up his mind to reinstate a citizenship question “well before” receiving DOJ’s request, and did so for reasons unknown but unrelated to the VRA.
After considering other evidence, the Court concluded:
Altogether, the evidence tells a story that does not match the explanation the Secretary gave for his decision. In the Secretary’s telling, Commerce was simply acting on a routine data request from another agency. Yet the materials before us indicate that Commerce went to great lengths to elicit the request from DOJ (or any other willing agency). And unlike a typical case in which an agency may have both stated and unstated reasons for a decision, here the VRA enforcement rationale—the sole stated reason—seems to have been contrived.
We are presented, in other words, with an explanation for agency action that is incongruent with what the record reveals about the agency’s priorities and decisionmaking process. It is rare to review a record as extensive as the one before us when evaluating informal agency action— and it should be. But having done so for the sufficient reasons we have explained, we cannot ignore the disconnect between the decision made and the explanation given. Our review is deferential, but we are “not required to exhibit a naiveté from which ordinary citizens are free.” United States v. Stanchich, 550 F. 2d 1294, 1300 (CA2 1977) (Friendly, J.). The reasoned explanation requirement of administrative law, after all, is meant to ensure that agencies offer genuine justifications for important decisions, reasons that can be scrutinized by courts and the interested public. Accepting contrived reasons would defeat the purpose of the enterprise. If judicial review is to be more than an empty ritual, it must demand something better than the explanation offered for the action taken in this case.
In these unusual circumstances, the District Court was warranted in remanding to the agency . . . .
Thus the Court remanded the decision to the agency for further explanation. To be sure, this conclusion and section seems inconsistent with the "abuse of discretion" section finding no "abuse of discretion." And notably, Chief Justice Roberts is the only Justice supporting both of those conclusions.
Also notably, the Court's opinion does not comment on any of the recently revealed evidence or new proceedings - updates shortly.
In its opinion in Rucho v. Common Cause, consolidated with Lamone v. Benisek, a sharply divided United States Supreme Court decided that the judicial branch has no role to play in challenges to redistricting based upon partisan gerrymandering.
Recall that Rucho involved the constitutionality of partisan gerrymandering in North Carolina. The major question raised by the arguments was whether the courts have any role in protecting voters from partisan gerrymandering; Recall also that in an almost 200 page opinion, the three judge court resolved the issues of justiciability and standing in favor of the plaintiffs and held that the redistricting violated equal protection.
Recall that Lamone involved the constitutionality of partisan gerrymandering in Maryland. The oral argument centered the First Amendment, but equal protection doctrine did surface in the context of comparing racial gerrymandering which is analyzed under the Equal Protection Clause.
And also recall that while the Court had previously taken on the issue of partisan gerrymandering, it dodged answering the ultimate question. Today, the Court's 5-4 decision makes that dodge permanent for all federal courts by holding that the questions is a nonjusticiable political question.
Writing for the Court, Chief Justice Roberts — joined by Justices Thomas, Alito, Gorsuch, and Kavanaugh — held that challenges to partisan gerrymandering involve a political question because they lack “judicially discoverable and manageable standards for resolving them, citing Baker v. Carr (1962). The majority then rejects all the "tests" (quotation marks in original) for resolving the issue. (Recall that Chief Justice Roberts's expressed skepticism about developing standards in the oral arguments on an earlier partisan redistricting case, Gill v. Whitford, calling the political science of redistricting "gobbledygook"). It is not that there is no relief, the majority concludes. While partisan gerrymandering is "incompatible with democratic principles," as the Court had previously stated in Arizona State Legislature v. Arizona Independent Redistricting Comm’n (2015), and the majority opinion "does not condone excessive partisan gerrymandering," the remedy is in the state courts. Or Congress might pass a law to address the matter, citing as an example the Fairness and Independence in Redistricting Act Bill, although the Court does not express a view on this or other pending proposals.
In dissent, Justice Kagan — joined by Justices Ginsburg, Breyer, and Sotomayor — begins by stating "For the first time ever, this Court refuses to remedy a constitutional violation because it thinks it is beyond its judicial capabilities." Kagan's impassioned dissent, as long as the majority opinion, and parts of which she read from the bench (a rare practice for her), explains that democracy is at stake and if "left unchecked, gerrymanders like the ones here may irreparably damage our system of government. The dissenting opinion suggests that the majority has not paid sufficient attention to the constitutional harms at the core of these cases, and discusses the cases, concluding that no one thinks this is how democracy should work, and that in the past the Court has recognized the infringement to individual rights partisan gerrymandering inflicts. As for standards, the four dissenters argue that courts have developed a framework for analyzing claims of partisan gerrymandering, including the workable standard the three judge courts in Rucho and Lamone used. As for state courts, Kagan's opinion asks "what do those courts know that this Court cannot? If they can develop and apply neutral and manageable standards to identify unconstitutional gerrymanders, why couldn't we?"
Given that former-Justice Kennedy had a central role in arguing for a First Amendment right to challenge partisan gerrymandering, his retirement and replacement by Justice Kavanaugh made the majority for an opinion that Chief Justice Roberts had seemingly long wanted.
Wednesday, June 26, 2019
The Supreme Court ruled today in Tennessee Wine and Spirits Retailers Ass'n v. Thomas that Tennessee's 2-year durational-residency requirement for retail liquor store license applicants violates the dormant Commerce Clause and is not saved by the Twenty-first Amendment.
The 7-2 ruling, authored by Justice Alito, is a strong endorsement of the Court's dormant Commerce Clause jurisprudence, which sets limits on states' economic protectionism and discrimination against interstate commerce.
Justice Alito, joined by Chief Justice Roberts and Justices Ginsburg, Breyer, Sotomayor, Kagan, and Kavanaugh, wrote first that the residency requirement violated the dormant Commerce Clause. The Court said that while "[i]n recent years, some Members of the Court have authored vigorous and thoughtful critiques of" the dormant Commerce Clause,
the proposition that the Commerce Clause by its own force restricts state protectionism is deeply rooted in our case law. And without the dormant Commerce Clause, we would be left with a constitutional scheme that those who framed and ratified the Constitution would surely find surprising.
The Court went on to say that Tennessee's 2-year durational-residency requirement "plainly favors Tennesseans over nonresidents" in violation of the doctrine.
As to the Twenty-first Amendment, the Court said that despite "the ostensibly broad text of Section 2 . . . we have looked to history for guidance, and history has taught us that the thrust of Section 2 is to 'constitutionaliz[e]' the basic structure of federal-state alcohol regulatory authority that prevailed prior to the adoption of the Eighteenth Amendment." Under that reading, the Court said that "as recognized during that period, the Commerce Clause did not permit the States to impose protectionist measures clothed as police-power regulations."
In short, "Section 2 cannot be given an interpretation that overrides all previously adopted constitutional provisions," including the dormant Commerce Clause, and therefore Tennessee's residency requirement isn't saved by the Twenty-first Amendment.
Justice Gorsuch, joined by Justice Thomas, dissented. Justice Gorsuch argued that the plain text of the Twenty-first Amendment, the history, and early Court interpretations all point toward permitting state residency requirements:
But through it all, one thing has always held true: States may impose residency requirements on those who seek to sell alcohol within their borders to ensure that retailers comply with local laws and norms. In fact, States have enacted residency requirements for at least 150 years, and the Tennessee law at issue before us has stood since 1939. Today and for the first time, the Court claims to have discovered a duty and power to strike down laws like these as unconstitutional.
In a closely watched administrative law and separation-of-powers case, Kisor v. Wilkie, the Court today declined to overrule Auer v. Robbins, which says that courts should defer to agencies' interpretations of their own ambiguous regulations. At the same time, however, the Court sharply limited its application. As a result, Auer deference hangs on, but in a more (perhaps much more) limited form.
And although the case didn't raise Chevron deference (which says that courts defer to agencies' interpretation of applicable federal law), signs suggest that it's next on the chopping block.
The Court split sharply over whether to overrule Auer. Justice Kagan, joined by Chief Justice Roberts and Justices Ginsburg, Breyer, and Sotomayor on this point, wrote to keep it in place, but limit it. Justice Gorsuch, joined by Justices Thomas, Alito, and Kavanaugh, wrote to overrule it.
Writing for the Court, Justice Kagan wrote that Auer deference depends on a preceding two-step, thus limiting it in future applications. "First and foremost, a court should not afford Auer deference unless the regulation is genuinely ambiguous. If uncertain does not exist, there is no plausible reason for deference." Next, "[i]f genuine ambiguity remains, moreover, the agency's reading must still be 'reasonable.' In other words, it must come within the zone of ambiguity the court has identified after employing all its interpretive tools. . . ." Even then,
[s]till, we are not done--for not every reasonable agency reading of a genuinely ambiguous rule should receive Auer deference. We have recognized in applying Auer that a court must make an independent inquiry into whether the character and context of the agency interpretation entitles it to controlling weight. . . .
To begin with, the regulatory interpretation must be one actually made by the agency. . . .
Next, the agency's interpretation must in some way implicate its substantive expertise. . . .
Finally, an agency's reading of a rule must reflect "fair and considered judgment" to receive Auer deference. . . .
The Court also held that under stare decisis principles, Auer should stay in place.
Chief Justice Roberts joined much, but not all, of the Court's opinion (the portions specifying the limits of Auer deference and upholding Auer under stare decisis) and wrote separately "to suggest that the distance between the majority and JUSTICE GORSUCH is not as great as it may initially appear." Importantly, he also wrote that nothing in today's ruling says anything about the continued validity of Chevron deference: "Issues surrounding judicial deference to agency interpretations of their own regulations are distinct from those raised in connection with judicial deference to agency interpretations of statutes enacted by Congress. [Chevron.]"
Justice Gorsuch, joined by Justices Alito, Thomas, and Kavanaugh, would have overruled Auer. (Indeed, Justice Gorssuch read the majority's ruling to more-or-less do that.)
The four conventional progressives differed sharply from four conventional conservatives (minus Chief Justice Roberts) over the history and reasons for Auer deference, whether Auer deference violates the Administrative Procedure Act, and whether it violates the separation of powers. (On this last point, four conservatives (again, minus Chief Justice Roberts) argued that Auer deference meant that executive agencies were exercising the judicial power, in violation of the separation of powers. The four progressives disagreed.) This means that there's 4-4 split on the Court over these questions, with Chief Justice Roberts declining to join either side (but nevertheless voting to uphold Auer under stare decisis).
Justice Kavanaugh, joined by Justice Alito, wrote separately to agree with Chief Justice Roberts that "the distance between the majority and JUSTICE GORSUCH is not as great as it may initially appear," and that this case doesn't touch on Chevron deference.
Tuesday, June 25, 2019
Call for Papers for
Section on Constitutional Law Program
at the 2020 AALS Annual Meeting
The Section on Constitutional Law is pleased to announce a Call for Papers from which one or two additional presenters will be selected to participate in the Section’s program with Professors Steven Calabresi and Reva Siegel and Dean Julie Suk at the AALS 2020 Annual Meeting in Washington, DC.
Form and length of submission: The panel is titled “The Nineteenth Amendment at 100 – Its Contribution and Legacy,” and will explore the Nineteenth Amendment’s role in constitutional interpretation both inside and outside of the courts in the century after suffrage. The Section welcomes relevant submissions. Submissions may take the form of abstracts or more complete drafts, but preference will be given to more developed projects.
Submission method and due date: Submissions should be anonymized. They should include a cover page with the author’s name and contact information. The cover page should be the only part of the submission that includes any identifying information for the author. Submissions should be sent electronically to Professor Lou Virelli at email@example.com. The due date for submissions is Friday, August 30, 2019.
Submission review: Papers will be selected after review by members of the Executive Committee of the Section. The Committee’s review will consider scholarly excellence, as well as new and diverse perspectives on the interpretation of the Nineteenth Amendment. The author(s) of the selected paper(s) will be notified by Friday, September 13, 2019. The Call for Papers presenters will be responsible for paying their conference registration fee and hotel and travel expenses.
Inquiries or questions: All inquiries should be submitted to Lou Virelli at Stetson University College of Law.
Monday, June 24, 2019
The Supreme Court ruled today that a federal criminal law that enhances criminal penalties for using, carrying, or possessing a firearm in connection with any federal "crime of violence or drug trafficking crime" was unconstitutionally vague. The ruling strikes the law.
The case, United States v. Davis, tested the federal law that enhances penalties (over and above a defendant's base conviction) for using, carrying, or possessing a firearm "in furtherance of" any federal "crime of violence or drug trafficking crime." The statute then defines "crime of violence" in two subparts, an "elements clause" and a "residual clause." Under the act, a crime of violence is "an offense that is a felony" and
(A) has as an element the use, the attempted use, or threatened use of physical force against the person or property of another, or
(B) that by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.
The Court ruled the residual clause, (B), unconstitutionally vague.
Justice Gorsuch wrote for the Court, joined by Justices Ginsburg, Breyer, Sotomayor, and Kagan. He started by noting that the vagueness doctrine is designed to protect due process and the separation of powers:
In our constitutional order, a vague law is no law at all. Only the people's elected representatives in Congress have the power to write new federal criminal laws. And when Congress exercises that power, it has to write statutes that give ordinary people fair warning about what the law demands of them. Vague laws transgress both of those constitutional requirements. They hand off the legislature's responsibility for defining criminal behavior to unelected prosecutors and judges, and they leave people with no sure way to know what consequences will attach to their conduct. When Congress passes a vague law, the role of the courts under our Constitution is not to fashion a new, clearer law to take its place, but to treat the law as a nullity and invite Congress to try again.
Justice Gorsuch compared the residual clause to similar language that the Court ruled unconstitutionally vague in Johnson v. United States (defining "violent felony" as a "serious potential risk of physical injury to another") and Sessions v. Dimaya (defining "crimes of violence" for many federal statutes). He rejected the government's argument that the courts should interpret the residual clause on a case-by-case basis (to determine in any individual case whether the crime fit the definition), concluding that reading the act's text, context, and history, the act "simply cannot support the government's newly minted case-specific theory." He also rejected the government's constitutional avoidance argument, "doubt[ing] [that] the canon could play a proper role in this case even if the government's reading were 'possible.'" That's because "no one before us has identified a case in which this Court has invoked the canon to expand the reach of a criminal statute in order to save it."
Justice Kavanaugh dissented, joined by Chief Justice Roberts and Justice Thomas and Alito. Justice Kavanaugh distinguished Johnson and Dimaya, arguing that "[t]hose cases involved statutes that imposed additional penalties based on prior convictions," while "[t]his case involves a statute that focuses on the defendant's current conduct during the charged crime." "The statute here operates entirely in the present[, and] [u]nder our precedents, this statute therefore is not unconstitutionally vague." He also pointed to the statute's impact on crime rates, and many years of application of it:
[One] cannot dismiss the effects of state and federal laws that impose steep punishments on those who commit violence crimes with firearms.
Yet today, after 33 years and tens of thousands of federal prosecutions, the Court suddenly finds a key provision of Section 924(c) to be unconstitutional because it is supposedly too vague. That is a surprising conclusion for the Court to reach about a federal law that has been applied so often for so long with so little problem. The Court's decision today will make it harder to prosecute violent gun crimes in the future. The Court's decision also will likely mean that thousands of inmates who committed violent gun crimes will be released far earlier than Congress specified when enacting Section 924(c). The inmates who will be released early are not nonviolent offenders. They are not drug offenders. They are offenders who committed violent crimes with firearms, often brutally violent crimes.
A decision to strike down a 33-year-old, often-prosecuted federal criminal law because it is all of a sudden unconstitutionally vague is an extraordinary event in this Court. The Constitution's separation of powers authorizes this Court to declare Acts of Congress unconstitutional. That is an awesome power. We exercise that power of judicial review in justiciable cases to, among other things, ensure that Congress acts within constitutional limits and abides by the separation of powers. But when we overstep our role in the name of enforcing limits on Congress, we do not uphold the separation of powers, we transgress the separation of powers.
Chief Justice Roberts did not join the portion of Justice Kavanaugh's dissent that argues that the statute is saved under the unconstitutional avoidance canon.
June 24, 2019 in Cases and Case Materials, Congressional Authority, Courts and Judging, Due Process (Substantive), Executive Authority, News, Opinion Analysis, Separation of Powers | Permalink | Comments (0)