Monday, November 21, 2022
Now that Trump has formally announced his candidacy in the 2024 presidential election, there's renewed buzz about the application of the Disqualification Clause. Here's a very brief explainer, along with some resources to help sort out what it is, and how it works.
First, the easy part: what it is. The Disqualification Clause disqualifies certain individuals from holding state and federal offices. The Clause, in Section 3 of the Fourteenth Amendment, was enacted shortly after the Civil War in order to bar confederate officers from holding public office. But its terms continue to apply today. It reads,
No Person shall be a Senator or Representative in Congress, or elector of President and Vice-President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may be a vote of two-thirds of each House, remove such disability.
Next, the harder part: how it works. The Clause itself raises several questions. For one, the Clause doesn't say how it's enforced, or who can enforce it. We do have some clues, though. We know that Congress can enact legislation "to enforce . . . the provisions" of the Fourteenth Amendment (under Section 5 of the Fourteenth Amendment). We know that "[e]ach House shall be the Judge of the Elections, Returns and Qualifications of its own Members . . . ." (Art. I, Sec. 5.) And we know that state officials and even private individuals in some cases have authority to challenge the qualifications of candidates for state and federal offices by filing quo warranto lawsuits.
For another, the Clause doesn't specifically say whether it applies to the president. But there are clues: the weight of historical scholarship says that it does.
For a third, the Clause doesn't define "insurrection or rebellion" or "aid or comfort to the enemies thereof," and it doesn't say how to determine whether a person "engaged" in the former or "g[a]v[e]" the latter. Again, we have clues. We know that Congress can call forth the militia "to suppress Insurrection." And we know that Congress enacted the Insurrection Act, which authorizes the President to call up the armed forces and militia in response to "unlawful obstructions, combinations, or assemblages, or rebellion against the authority of the United States [that] make it impracticable to enforce the laws of the United States by the ordinary course of judicial proceedings." Another part of the Insurrection Act authorizes the use of armed forces when insurrectionists "oppose or obstruct the execution of the laws of the United States or impede the course of justice under those laws." The Act holds accountable anyone who "incites, sets on foot, assists, or engages" in those acts.
As to "giv[ing] aid or comfort to the enemies," this may require some connection to a foreign and opposing government, not just a U.S. citizen opposing the U.S. government.
It seems clear that the January 6 insurrection was, indeed, an "insurrection or rebellion" under the Clause. And those who "incite[d], set on foot, assist[ed], or engage[d]" in that insurrection probably "engaged" in it for the purpose of the Clause.
But given the dearth of recent judicial precedent, we don't have a ton of contemporary judicial interpretation on enforcement. The Fourth Circuit earlier this year ruled that the 1872 Amnesty Act, which removed disqualification for confederate officers, did not remove disqualification for Madison Cawthorn in his bid for reelection to the House. The Eleventh Circuit ruled more recently that Marjorie Taylor Greene's case challenging a state process to determination disqualification was moot, because the process concluded in her favor. The best we have comes from a New Mexico state court that removed a county commissioner and prohibited him from seeking or holding any future office. That analysis is good, but it's just one court.
Rep. David Cicilline (D-RI) indicated last week that he's looking to introduce federal legislation that would ban Trump from the presidency. Other legislation is currently pending. In particular, H.R. 7906 authorizes the AG to investigate Section 3 disqualifications and pursue them in court.
CREW, which indicated earlier that it'd file to challenge Trump under the Disqualification Clause, issued letters to state AGs urging them to pursue quo warranto actions in their states. And FreeSpeechforPeople.org and Mi Familia Vota seek to garner public support for state AG actions to enforce the Disqualification Clause.
For more, here's a Congressional Research Service Legal Sidebar on the Clause.
Friday, November 18, 2022
AG Merrick Garland today appointed John L. Smith as special prosecutor in the investigations into efforts to interfere with the lawful transfer of power after the 2020 election and Trump's illegal retention of government documents at Mar-A-Lago. Smith is a former head of DOJ's Public Integrity Section and former chief prosecutor for the special court at the Hague.
The appointment means that the investigation and any criminal charges will now come from the special counsel, operating independently of ordinary DOJ channels. AG Garland likely made the appointment to avoid even the appearance of a conflict now that Trump declared his candidacy for the presidency in 2024. We don't know how quickly the special counsel will move, and we likely won't know that for some time. But the office isn't starting from scratch: it can pick up where DOJ left off its own investigations into these matters.
The appointment authorizes the special counsel to investigate these matters and to prosecute federal crimes that arose out of them. Neither investigation nor prosecution is limited to Trump (or anyone else). But the "authorization does not apply to prosecutions that are currently pending in the District of Columbia, as well as future investigations and prosecutions of individuals for offenses they committed while physically present on the Capitol grounds on January 6, 2021." As the appointment explains, those matters "remain under the authority of the United States Attorney for the District of Columbia."
In addition to investigation the insurrection and document retention, AG Garland's appointment letter and the regs authorize the special counsel to investigate "any matters that arose or might arise directly" from those investigations, including obstruction and perjury.
The special counsel will operate almost entirely outside the DOJ's chain of command. But that doesn't mean that AG Garland is necessarily bound to all the special counsel's decisions. 28 C.F.R Sec. 600.7(b) provides:
The Special Counsel shall not be subject to the day-to-day supervision of any official of the Department. However, the Attorney General may request that the Special Counsel provide an explanation for any investigative or procedural step, and may after review conclude that the action is so inappropriate or unwarranted under established Department practices that it should not be pursued. In conducting that review, the Attorney General will give great weight to the views of the Special Counsel. If the Attorney General concludes that a proposed action by a Special Counsel should not be pursued, the Attorney General shall notify Congress . . . .
Moreover, special counsel staff are "subject to disciplinary action for misconduct and breach of ethical duties," and the AG can remove the special counsel "for misconduct, dereliction of duty, incapacity, conflict of interest, or for other good cause, including violation of Departmental policies."
Wednesday, November 16, 2022
Former President Trump filed his brief in the Eleventh Circuit case testing whether a district judge had authority to appoint a special master to review documents seized at Mar-A-Lago. Trump's arguments are familiar, largely already rejected, and unpersuasive.
A short history might help contextualize this:
Two weeks after the FBI seized documents that Trump illegally removed from the White House, transported to his private residence, and illegally stored there, Trump sued, seeking (extraordinary) "judicial oversight" of the government's review of the documents. A district judge appointed a special master to conduct that review. The government filed a notice of appeal and moved the district court for a partial stay of its order as it applied to documents bearing classified markings. The district court rejected the motion, but the Eleventh Circuit reversed. The Eleventh Circuit held that the government was likely to prevail, because everyone agreed that the search did not display a callous disregard for Trump's constitutional rights--"the foremost consideration" in determining whether the district court properly exercised jurisdiction in appointing the special master in the first place. The Supreme Court declined to vacate that ruling.
The Eleventh Circuit ruling went to the government's motion for a partial stay as the district court's order applied to classified documents. But the court's reasoning--that last part, that everyone agreed that the search (of all the documents, not just the classified documents) didn't display a callous disregard for Trump's constitutional rights--gave the government an opening to argue that the district court's original appointment of a special master was completely invalid. The government then argued (1) that the court lacked authority to appoint the special master at all, and (2) that the court lacked authority to stop the government from reviewing the documents pending the outcome of the special master review.
Trump's brief responds to the government's arguments. On the merits of the district court's appointment of the special master, Trump argues that the government's lack of callous disregard of his rights is not determinative, and that other equitable factors weigh in favor of the court's authority. As to the district court's order halting government review pending special master review, Trump argues that he's likely to succeed on the merits, because some of the documents are his, some are protected by privilege, and he automatically declassified any documents marked "classified" simply by treating them as unclassified documents. (He says that as president he had authority to declassify, and therefore he could declassify simply by thinking it).
Trump's arguments mostly rehash his claims that the courts have already flatly rejected. (Maybe that's why the court set oral argument for next Tuesday: easy case, easy ruling.) The brief--and Trump's entire case, from his original complaint--is simply an effort to drag out and frustrate the FBI's investigation, and even run the clock.
Monday, November 14, 2022
The Eighth Circuit granted a motion to stop the Biden Administration from implementing its student-debt forgiveness program pending appeal. The court just a few weeks ago granted an emergency motion for an administrative stay, to the same effect.
The ruling halts implementation of the program nationwide during the state's appeal. It's another setback for the loan-forgiveness program in the courts.
The court said, contrary to the district court, that the Missouri Higher Education Loan Authority had standing as a state agency, or, if not, because of "MOHELA's financial obligations to the State treasury, the challenged student loan debt cancellation presents a threatened financial harm to the State of Missouri." Moreover, "the equities strongly favor an injunction considering the irreversible impact the Secretary's debt forgiveness action would have as compared to the lack of harm an injunction would presently impose."
The court said that it couldn't limit an injunction to the plaintiff states, however, because MOHELA services loans nationwide, and because "tailoring an injunction to address the alleged harms to the remaining States would entail delving into complex issues and contested facts that would make any limits uncertain in their application and effectiveness."
District Court Rules ACA Ban on Sex Discrimination Doesn't Include Sexual Orientation or Gender Identity
Judge Matthew J. Kacsmaryk (N.D. Tex.) ruled that the ban on sex discrimination in the Affordable Care Act doesn't include a ban on discrimination by sexual orientation or gender identity. The ruling concludes that HHS regulations that ban discrimination by sexual orientation and gender identity are unlawful.
The case, Neese v. Becerra, tests HHS regulations against the ACA. The ACA prohibits discrimination "on the ground prohibited under . . . Title IX . . . ." Title IX, in turn, prohibits discrimination "on the basis of sex." HHS interpreted this to include discrimination based on sexual orientation and gender identity, and issued regs prohibiting such discrimination under the ACA.
The court ruled the ACA's ban on discrimination wasn't that capacious. The court said that Title IX's plain language, along with its broader objectives, means that sexual orientation and gender identity are not part of "sex" discrimination under that statute. And therefore they're not a part of "sex" discrimination under the ACA, either.
The court distinguished Bostock v. Clayton County. The Supreme Court in that case held that Title VII's ban on discrimination "because of sex" included a bans on sexual orientation and gender identity discrimination. But the district court said that Bostock only applied to Title VII, not other anti-sex-discrimination statutes, and that differences between Title VII and Title IX meant that Title IX didn't include bans on sexual orientation and gender identity discrimination.
The Supreme Court today rejected an attempt by Kelli Ward, the chair of the Arizona Republican Party, to stop the January 6 Committee from obtaining her phone records around the time of the insurrection.
The ruling means that Ward's phone provider must turn the records over. (The subpoena seeks telephone numbers, not the content of the conversations.)
The Court didn't provide an explanation for denying Ward's application. Justice Thomas and Alito would have granted it, but they provided no explanation, either. (That's not unusual for this kind of request. The Court often issues a decision on an emergency application without an explanation.)
The Committee subpoenaed Ward's provider after Ward, who played an instrumental role in various efforts to reverse the election and prevent the peaceful transition of power, repeatedly invoked the Fifth Amendment when she testified to the Committee earlier this year. Ward then sued, seeking to quash the subpoena. The district court and the Ninth Circuit both rejected her motion; today the Supreme Court rejected it, too.
Ward argued that the subpoena violated her First Amendment associational rights under Americans for Prosperity Foundation v. Bonta. In that case, the Supreme Court struck a California requirement that charitable organizations that solicit contributions in the state must disclose to the state attorney general the identities of their major donors. The Court applied "exacting scrutiny," and ruled that the disclosure regime wasn't sufficiently tailored to meet the state's asserted interests. Ward claimed that "exacting scrutiny" should apply to the Committee's subpoena, too, as a form of compelled disclosure that interfered with her associational rights.
The Ninth Circuit flatly rejected that argument. The court said that Americans for Prosperity didn't even apply, because unlike the disclosure requirement in that case, the Committee's subpoena was targeted at a particular person, Ward, for particular and relevant information to the Committee's investigation, and because Ward made no allegation that disclosure would lead to any harassment (which would interfere with Ward's associational rights). The court noted that the subpoena sought "to uncover those with whom [Ward] communicated in connection with" the January 6 attack, not members of a political party. It also noted that Ward's theory would allow anyone to "raise a First Amendment objection to any subpoena for records of calls that included discussions of politics--or, presumably, of 'social, economic, religious, [or] cultural' matters. (Narcotics traffickers, or anyone else who might face such subpoenas, would be well advised to make at least a few calls to their preferred political party.)"
The court held that even if Americans for Prosperity's "exacting scrutiny" applied, the subpoena met it. That's because it's "narrowly tailored" to get only the information that the Committee needs, and because the Committee already tried to get this information from Ward when she testified, but she invoked the Fifth.
Judge Ikuta dissented from the Ninth Circuit ruling.
Over the past several years state legislatures confronting a severe housing shortage have increasingly preempted local land use regulations that restrict housing supply in an effort to facilitate more housing production. But even where state legislatures have been successful, they now confront another problem: many of the preempted land use regulations are duplicated at the neighborhood or block level through private “covenants, conditions and restrictions” (CCRs) enforced by homeowners associations. In response, California’s legislature has begun aggressively invalidating or “overriding” these CCRs. While many states have barred HOAs from prohibiting pets, clotheslines, signs and flags, California has moved much farther, prohibiting HOAs from unreasonably limiting accessory dwelling units and overriding any private CCR that would inhibit the construction of 100% affordable housing of any density.
These overrides present serious legal questions because CCRs are property and contract rights that may be protected by the Constitution’s Takings and Contract clauses. Overrides have not resulted in much published litigation in the past, but California’s new wave of aggressive CCR overrides may change that. While the Contract Clause argument is exceptionally weak, homeowners who are disabled from enforcing a servitude benefitting their property due to a legislative override have a viable argument that the override interferes with their reasonable expectations regarding the use of their property, and therefore constitutes an unconstitutional taking. On balance, however, I argue that most CCR overrides will survive a takings challenge because the enforceability of CCRs has long been subject to alteration or even termination by courts or legislatures on public policy grounds, so a homeowner would reasonably expect a CCR to be unenforceable if it conflicts with public policy as determined by the legislature. Nevertheless, the current Supreme Court has been very aggressive in recent takings cases so legislatures will have to be careful in crafting overrides to ensure they satisfy the Court’s increasingly stringent takings standards.
Michael L. Smith (Idaho), Originalism, Common Good Constitutionalism, and Transparency, Harvard J. L. and Public Policy (forthcoming):
A theory of interpretation that is more transparent tends to be preferable to less transparent alternatives. Increased transparency tends to promote the values of constraint, democratic legitimacy, and an understanding of what the law is. Under a transparency rubric, originalism, as a standard of interpretation, performs better than common good constitutionalism. Originalism provides a better defined (though still imperfect) basis for determining the correctness of claims about the Constitution means. Common good constitutionalism’s reliance on morally and politically loaded terminology makes it elusive as a standard of interpretation that tends to match the desires of the interpreter. At the implementation stage, however, those who implement common good constitutionalism do so in a transparent manner—reading the Constitution in line with their readily expressed moral and political inclinations. Originalism, on the other hand, is vulnerable to disingenuous interpreters who use originalism as a smokescreen to achieve political ends in the guise of neutrality. This casts doubts on originalist attempts to use common good constitutionalism as an opportunity to sell their theory to nonoriginalists.
Friday, November 11, 2022
Trump objects to the subpoena on several grounds:
[T]he Committee did not issue the Subpoena to further a valid legislative purpose; the Subpoena is unwarranted because other sources can provide the information the Subpoena seeks; the Subpoena is broader than reasonably necessary; the Subpoena infringes on executive privilege; the Subpoena infringes President Trump's First Amendment rights; the Committee is not duly authorized; and the Committee lacks authority to issue subpoenas.
Just to be clear: These grounds are entirely spurious. Some are flat wrong, factually or legally or both. Others have been roundly rejected in the courts. Again and again. Still, Trump raises them.
For example, Trump argues that a former president is absolutely immune from compelled testimony. But his best source for this is a letter that President Truman wrote in response to a subpoena by the House Un-American Activities Committee. Every other authority he cites speaks to current, not former, presidents. The difference matters: the reason for the president's absolute immunity (if such immunity exists) is that Congress, by compelling testimony, could frustrate the current president's exercise of their Article II responsibilities (by taking the president away from their job), and thus undermine the separation of powers. This reason applies with far less force, if at all, to a former president. The reason's simple: a former president is no longer exercising Article II responsibilities. In any event, neither OLC nor the Supreme Court has definitively extended absolute immunity from compelled congressional testimony to a former president. And Congress obviously thinks it has the power. That counts for something.
Trump also argues that the subpoena doesn't serve a legitimate legislative purpose. This is a familiar trope in Trump team litigation. And it's failed consistently in the courts, including in court challenges to the January 6 Committee's authority.
The strategy--the same as always--is clear: Trump's trying to run the clock in hopes that the subpoena (and the entire Committee) go away with a new Republican Congress. Or, if not, stall in the courts as long as possible.
Justice Sotomayor, as Second Circuit justice, denied an emergency application to halt New York City's vaccine mandate for public employees, pending appeal.
The denial came without explanation. That's not unusual for this kind of thing.
A group called New Yorkers for Religious Liberty filed the application. It argued that the City's enforcement of the vaccine mandate violate the Free Exercise Clause. In particular, the group maintained that the City had too much discretion in granting religious exemptions, that the City "play[ed] denominational favorites" and made other arbitrary decisions regarding exemptions, and that "[t]he City uses its executive discretion to prefer secular conduct that undermines the government's asserted interest in similar ways as non-exempted religious conduct."
The arguments looked to exploit holes in the Smith test, which applies rational basis review to government actions that are neutral with regard to religion and generally applicable. The Court in Masterpiece Cakeshop v. Colorado Civil Rights Commission held that statements by commissioners reflected anti-religious animus, and therefore the Commission failed to apply Colorado's anti-discrimination law in a way that was neutral with regard to religion. More recently, in Fulton v. City of Philadelphia, the Court ruled that the City's discretion in enforcing anti-discrimination law made it not generally applicable. The two rulings significantly chipped away at Smith, even if the Court (so far) has declined to outright overrule Smith.
The group's arguments in its emergency application are in the same spirit--that the City enforces the otherwise neutral and generally applicable vaccine mandate in a way that discriminates against certain religious beliefs, or leaves too much discretion in the hands of City officials who can grant exemptions.
Justice Sotomayor's denial follows two Court rulings earlier this year, one rejecting a Biden Administration effort to impose a vaccine mandate on employees of large employers and another one upholding a Biden Administration move to require facilities that receive Medicare or Medicaid funding to ensure that their employees are vaccinated. Those rulings turned on the Administration's authority to adopt those rules, however, and not the Free Exercise Clause.
Judge Mark T. Pittman (N.D. Tex.) ruled that the Biden Administration's student-loan forgiveness program is unconstitutional. The Administration already said that it'd appeal.
Judge Pittman's ruling is different than these, in that it isn't temporary. Instead, it "vacates" the program in its entirety.
The court ruled that the program violated the newly discovered major questions doctrine. The court said that the program involved a matter of "vast 'economic and political significance'" (because it'll "cost more than $400 billion"), yet Congress hadn't clearly authorized it in the HEROES Act. Under West Virginia v. EPA's major questions doctrine, the court said that the program is therefore unconstitutional.
That's striking, given that the HEROES Act plainly authorizes the Secretary of Education to "waive or modify" federal student loans "as the Secretary deems necessary in connection with a war or other military operation or national emergency." ("The term 'national emergency' means a national emergency declared by the President of the United States.") It's striking, too, because, unlike the West Virginia case, the Administration's action here doesn't impose a regulatory scheme. If the major questions doctrine reaches this program, it'll likely reach a whole lot of other programs that we might not necessarily have expected under West Virginia, too--programs where the president has statutory authority to declare an "emergency," or where an administration takes non-regulatory action. (And remember: the Court hasn't defined "economic and political significance." So we don't know how or whether that limiting principle would apply.)
The ruling is striking at an even more basic level, on standing. Under the standing rule, a plaintiff, in order to get into federal court, has to plausibly plead (1) that they've suffered a harm, (2) that the defendant's action caused the harm, and (3) that the plaintiff's requested relief will redress the harm. Here, the plaintiffs in the case didn't qualify for the full forgiveness. That was their "harm" for standing purposes. And they connected that harm to the forgiveness program, demonstrating causation.
Yet they asked the court to vacate the entire program (as opposed to remand to the Department to fix it so that they'd qualify). The court obliged, and, as a result, they (still) don't get forgiveness (and neither does anyone else). This seems counterproductive, at best, as a practical matter. But it also seems to play fast and loose with the third standing requirement, that the requested relief must redress the harm.
Thursday, November 10, 2022
The Second Circuit ruled that a district court improperly granted summary judgment to the Rockland County Department of Health (NY) and its officials in a claim by parents of minor children that the Department's order excluding unvaccinated children from school violated their right to free exercise of religion.
The ruling means that the district court must hold a trial to resolve disputed facts surrounding the claim before ruling on the free exercise issue.
The case, M.A. v. Rockland County Department of Health, arose when the Department excluded children who were not vaccinated against measles from attending school. The Department issued the order in response to a measles outbreak.
Parents sued, arguing that the order violated free exercise, among other things. The district court ruled that the order was neutral with regard to religion and generally applicable. It applied Smith's rational basis review and granted summary judgment to the district.
The Second Circuit reversed. The court said there were facts in dispute as to the order's neutrality and general applicability that made the case inappropriate for summary judgment.
While a reasonable juror could conclude that [a Department official's] statements [about individuals who oppose vaccines] evinced religious animus, rendering the Declaration not neutral, a reasonable juror could also conclude the opposite. Similarly, there are disputes of fact regarding whether the Declaration, in practice, primarily affected children of religious objectors or whether there was a sizable population of children who were unvaccinated for a variety of non-medical and non-religious reasons. There are also disputes as to whether the County's purpose in issuing the Declaration was to stop the spread of measles or to encourage vaccination. Given these fact-intensive issues, the district court's grant of summary judgment on the Plaintiffs' Free Exercise Claim was erroneous.
The case now goes back to the district court for a trial on these questions.
The Sixth Circuit ruled this week that the First Amendment doesn't protect a right to record police misconduct investigations.
The case, Hils v. Davis, arose when the president of the police union sought to record Citizen Complaint Authority interviews of an officer in a police-misconduct investigation. The union president alleged that the Authority wasn't recording the entire interviews, so he sought to fill the gaps. The Authority prevented him from recording, and he sued.
The court examined the "many potential ways to think about this claim," including text and history of the First Amendment, precedent involving press access to public proceedings, government-employee speech, and forum analysis. It rejected the claims under them all. The fundamental problem according to the court: Authority interviews are part of non-public government investigations. The court said that the Authority has a legitimate interest in keeping the interviews under wraps while the investigation is pending, and that interviewees have other ways of voicing their concerns that the Authority is selectively recording the interviews: Say so.
The Fifth Circuit rejected claims by a tanning business that COVID shutdowns violated its equal protection rights and amounted to an uncompensated taking.
The case, Golden Glow Tanning Salon v. City of Columbus, Mississippi, arose when Columbus ordered a seven-week shutdown of certain businesses in the early days of the COVID pandemic. Golden Glow sued, arguing that the shutdown violated equal protection and constituted an uncompensated taking.
The Fifth Circuit rejected both claims. The court applied rational basis review to Golden Glow's equal protection claim, and concluded that Columbus's action was reasonable, even if a little both over- and underinclusive. As to takings, the court rejected Golden Glow's claim that the shutdown effected a per se taking, because Golden Glow failed to demonstrate that the shutdown "rendered the entire property 'valueless.'"
Judge Ho concurred, and pitched a case for the right to earn a living as a fundamental right. Judge Ho argued that the right "to pursue callings" has even better historical foundations than other unenumerated fundamental rights.
The solicitor general and the House today filed separate oppositions to former President Trump's emergency application to the Supreme Court for a stay of the lower court's ruling that Treasury must turn over Trump's taxes to the House Committee on Ways and Means.
The filings follow the Court's temporary stay and super-fast briefing schedule in the case. (The Court's temporary stay prevents Treasury from turning over the taxes until it resolves Trump's emergency application.)
Both briefs argued that the lower court got it right--that the Committee has a legitimate legislative purpose for requesting the taxes, and that the Committee's request doesn't violate the separation of powers.
The Committee brief added that the Court should rule quickly, because time's running out on this Congress, and (implicitly) that delays will simply play into Trump's run-the-clock strategy, should the Republicans take the House: "Delaying Treasury from providing the requested tax information would leave the Committee and Congress as a whole little or no time to complete their legislative work during this Congress, which is quickly approaching its end."
The Committee also added that a ruling for Trump would undermine Congress's authority more generally:
The "power of inquiry--with process to enforce it--is an essential and appropriate auxiliary to the legislative function." And more recently, this Court in Mazars confirmed that "[l]egislative inquiries might involve the President in appropriate cases" and rejected an approach that gave "short shrift to Congress's important interests in conducting inquiries to obtain the information it needs to legislative effectively." To rule for the Trump parties on the merits would disregard those important Congressional interests and "risk seriously impeding Congress in carrying out its responsibilities" by preventing Congress from completing any investigation involving a former President whenever there are allegations that the investigation was politically motivated.
Next move's for the Court.
Monday, November 7, 2022
The Supreme Court will hear arguments on Tuesday in Health and Hospital Corporation of Marion County v. Talevski. The case tests whether a state-owned nursing-home resident can sue under Section 1983 for violations of standards of care that the state must satisfy in order to receive Medicaid funding. Here's my Preview, from the ABA Preview of United States Supreme Court Cases, with permission:
In January 2016, Gorgi Talevski entered Valparaiso Care and Rehabilitation (VCR), a government-owned nursing home, after his family determined that he needed professional care for his dementia. Shortly after he moved to VCR, Gorgi’s condition deteriorated rapidly. He lost his abilities to feed himself and to communicate in English (instead speaking only in his native Macedonian), among other cognitive and physical functions that he exhibited upon entering VCR.
Gorgi’s family discovered that VCR had been prescribing six powerful psychotropic drugs as part of his regimen. (VCR says that they prescribed drugs, including these six and others, in order “to arrest his decline and ameliorate his behavior.” In particular, VCR claims that Gorgi “repeatedly acted in a violent and sexually aggressive manner toward members of VCR’s staff and female residents.”) Gorgi’s family filed a grievance with the Indiana State Department of Health and hired a private neurologist, who ordered the drugs stopped. Gorgi’s condition improved, and he could feed himself again. (VCR contends that Gorgi’s aggressive behavior did not improve, however.)
During the same period, VCR temporarily transferred Gorgi two or more times to an all-male facility about an hour-and-a-half away. (Gorgi returned to VCR in between the temporary transfers.) Around December 2016, a physician at the second facility determined that Gorgi should not return to VCR. So VCR transferred Gorgi through an involuntary discharge to a dementia facility in Indianapolis.
Gorgi’s family filed a grievance with the Indiana State Department of Health. A state administrative law judge ruled that VCR violated Gorgi’s discharge rights. But the only relief available was readmittance to VCR. Fearing that VCR would retaliate against him, Gorgi’s family moved him to another nursing home.
Gorgi’s wife, Ivanka Talevski, sued VCR on Gorgi’s behalf. She alleged that VCR wrongfully used chemical restraints on Gorgi and impermissibly transferred him in violation of the Federal Nursing Home Reform Act (FNHRA). The district court ruled in favor of VCR, but the United States Court of Appeals for the Seventh Circuit reversed. This appeal followed.
Congress enacted the FNHRA to establish minimum standards of care that nursing homes must meet in order to qualify for federal Medicaid funding. The FNHRA sets certain rules for nursing-home facilities, and it sets certain “[r]equirements relating to residents’ rights.” In return for receiving federal Medicaid funds, state nursing-home facilities must comply with these rules and respect these rights.
Two of those rights are at issue here. The first one protects nursing-home residents against “chemical restraints imposed for purposes of discipline or convenience and not required to treat the resident’s medical symptoms,” except “to ensure the physical safety of the resident or other residents” and only under specific physician instructions. 42 U.S.C. § 1396r(c)(1)(A). The second one prohibits a nursing home from transferring a resident unless “the safety of individuals in the facility is endangered,” among other specified exceptions. 42 U.S.C. § 1396r(c)(2).
But just because the FNHRA establishes those rights, a nursing-home resident cannot necessarily sue to enforce them. That’s because the FNHRA is a federal spending program; it sets conditions for states on the receipt of federal funds (in this case Medicaid funds). In that way, the FNHRA, like other spending programs, creates benefits and obligations between the federal government and the states. While the FNHRA sets standards for the benefit of nursing home patients, the question is whether those patients can sue to enforce those rights. (Just a quick technical note, with important implications: individuals sue to enforce federal rights under another statute, 42 U.S.C. § 1983, or just “Section 1983.” That law, first enacted in 1871, authorizes individuals to sue defendants who are acting “under color of law” for violating their rights under the Constitution or federal law. We’ll hear the parties reference Section 1983 throughout the oral argument.)
Under Court precedent, a person can sue to enforce rights created by a federal spending program only when that program has certain characteristics. In particular, Congress must have intended that the program, or a provision in it, benefits the plaintiff; the rights can’t be “vague and amorphous” so as to “strain judicial competence”; and the program “must unambiguously impose a binding obligation on the States.” Blessing v. Freestone, 550 U.S. 329 (1997). All this means that a plaintiff must demonstrate that a federal spending program unambiguously creates an individual right that protects the plaintiff. Gonzaga University v. Doe, 536 U.S. 273 (2002). That’s a high bar, and the Court hasn’t found that a federal spending program created an individually enforceable right since 1990.
Against this backdrop, VCR argues first that congressional spending programs do not create enforceable rights under Section 1983 at all. VCR says that Congress enacted Section 1983 with common-law contractual principles in mind. According to VCR, those principles preclude “third parties” from enforcing contracts. If a federal spending program is a contract between the federal government and a state, this means that an individual who is not a party to the contract (like a nursing home resident) can’t sue to enforce that contract, even if the contract protects them. VCR claims that this is also consistent with separation-of-powers and federalism principles in our Constitution. Finally, it contends that the Court itself has effectively recognized this in its most recent decisions, which, according to VCR, call into question whether congressional spending programs give rise to Section 1983 claims. VCR asserts that the Court should overrule its cases to the contrary.
But even if the Court continues to hold that certain federal spending programs allow Section 1983 claims, VCR argues that the FNHRA doesn’t. VCR says that Congress has created “more than sufficient [other] individualized remedies” for nursing-home residents “to foreclose resort to Section 1983.” Moreover, it claims that the two rights asserted by Talevski “come nowhere close to meeting the stringent criteria” in Blessing and Gonzaga.
Talevski counters that congressional spending programs like the FNHRA can create rights, and that the plain text of Section 1983 authorizes individual lawsuits to enforce them. Talevski says that the text, context, and purpose of Section 1983 all support this conclusion. He also claims that the Court’s precedents and specific congressional ratification of those precedents support this conclusion. Talevski asserts that these sources should guide the Court’s ruling, not the common law of contracts in the 1870s. But even if the common law of contracts governs, Talevski says that “the prevailing rule in this country in the early 1870s was that third parties could sue to enforce contracts for their benefits,” and so Section 1983 authorizes lawsuits to enforce rights in federal spending programs even under VCR’s historical argument.
Talevski argues next that Congress clearly intended to allow individual lawsuits to enforce the FNHRA’s rights against chemical restraint and involuntary discharge. He says that the FNHRA’s text, structure, history, and purpose all support this conclusion. For example, he points out that the FNHRA repeatedly refers to residents’ “rights,” that the FNHRA specifically describes them as “legal rights,” and that the FNHRA rights pass to a resident’s guardian if the resident becomes incompetent. Talevski also points out that the FNHRA rights are part of a “bill of rights” that are provided orally and in writing to each resident. He claims that these rights are “fundamental” for nursing home residents, who “are among the most vulnerable individuals in our society.”
Finally, Talevski argues that the FNHRA offers no other federal mechanism for residents to hold nursing homes accountable for individual rights violations. He says that before the FNHRA these rights were secured only by regulation, and that Congress would have no reason to enact the FNHRA if regulatory enforcement sufficed. Moreover, he points out that the FNHRA “explicitly preserves access to other federal remedies outside FNHRA,” including Section 1983 actions.
The government weighed in as amicus to argue that congressional spending programs can create rights that are enforceable through Section 1983 actions. In particular, the government argues that VCR is wrong to argue that common-law contract principles should govern the Court’s interpretation of Section 1983, and that the Court should not overturn its precedents authorizing Section 1983 suits to enforce spending program rights.
But at the same time the government argues that Section 1983 is not available to protect the rights in the FNHRA. The government says that the vast majority of nursing-home residents live in private nursing homes that are not covered by the FNHRA; that Congress provided only administrative oversight and enforcement for those nursing homes; and that Congress could not have intended to create an additional and potentially conflicting enforcement mechanism (through Section 1983 lawsuits) for the small percentage of public nursing-home residents.
The first question in this case—whether a plaintiff can sue under Section 1983 to enforce rights provided in federal spending programs—could impact the ability of millions of participants in those programs to enforce their rights in court. In particular, if the Court overrules its precedents—or lets those precedents die on the vine—participants in core social-safety-net programs like Medicaid, Medicare, the Children’s Health Insurance Program, Temporary Assistance to Needy Family, the Supplemental Nutrition Assistance Program, and the McKinney-Vento Homeless Assistance Program will not be able to sue in court to enforce their rights under those programs. Because the federal government cannot enforce rights in every instance, and because the government only reluctantly withholds federal funds for noncomplying states, this would leave millions of participants at the whim of state legislatures and state officials who administer the programs—and who too often have little regard for participants’ rights.
But even if the Court stops short on the first question, the second question could have a similarly significant impact, but for a smaller population. If the Court rules that nursing-home residents cannot sue under Section 1983 to enforce their rights under the FNHRA, those residents could only rely on administrative mechanisms and, ultimately, revocation of Medicaid funds to enforce their rights. But the federal government cannot enforce FNHRA rights in every case, and it’s loath to revoke funds when states don’t comply with the Act (because such a move would ultimately hurt nursing-home residents even more).
All that said, the Court has not authorized a Section 1983 lawsuit to enforce rights in a federal spending program since 1990. For this Court, that may cut in favor of overruling precedent—either actually or practically—that allows such suits. (As we saw this Summer, this Court is not shy about expressly overruling well-settled precedent, or acknowledging that well-settled precedent has effectively withered away.) And VCR’s historical argument (on the common-law of contracts) is pitch-perfect for this Court and its newly revitalized historical approach. (That’s not to say that VCR’s argument is right. As several amici point out, it’s not. But the Court’s newly revitalized historical approach only concerns itself with “the historical record compiled by the parties” in litigation, not (necessarily) the actual historical understanding of a particular area of law. New York State Rifle & Pistol Association, Inc. v. Bruen, 597 U.S. ___ (2022).) All this means that the case is ripe for this Court to restrict or even overturn its precedents allowing Section 1983 claims to enforce rights in federal spending programs.
Friday, November 4, 2022
The Eleventh Circuit yesterday ruled that Representative Marjorie Taylor Greene's federal lawsuit seeking to halt a state-level challenge to her candidacy was moot. The court said that the state process ran its course in her favor, and so there was nothing left for the federal courts to enjoin.
The case started when a group of Georgia voters filed a claim under Georgia's "Challenge Statute" that Marjorie Taylor Greene was ineligible for election to the House under Section 3 of the Fourteenth Amendment. That provision says that a person can't be candidate for office if they took an oath as an officer to support the Constitution of the United States and subsequently "shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof."
Greene sued in federal court to halt the state-level challenge, arguing that it violated her First Amendment right to run for public office; the Due Process Clause; Article I, Section 5, insofar as it exceeded the state's power to regulate election procedures and usurped the House's role as judge of the qualifications of its members; and the 1872 Amnesty Act (which she claimed removed the "disability" imposed by Section 3 prospectively to all members of Congress).
The federal district court ruled against Greene, and Greene appealed to the Eleventh Circuit.
Meanwhile, in the state challenge, a Georgia administrative law judge ruled that Greene's challengers failed to show that she fit within Section 3. Georgia Secretary of State Brad Raffensperger adopted the ALJ's conclusion, and the state courts affirmed.
Given that the state challenge ran its course, the Eleventh Circuit yesterday dismissed Greene's federal case as moot. The court said nothing about the merits of the challengers' Section 3 claim against Greene.
But Judge Branch, in a concurring opinion, argued that Greene was likely to prevail on her claim that the state process would have violated Article I, Sections 4 and 5 by imposing an additional qualification on her--that she defend herself against a Section 3 challenge in a state process:
[I]n purporting to assess Rep. Greene's eligibility under the rubric of Section 3 of the Fourteenth Amendment to the U.S. Constitution, Georgia imposed a substantive qualification on her. The State was not merely, as the district court incorrectly concluded, enforcing the preexisting constitutional disability in Section 3. Instead, the State Defendants, acting under the Challenge Statute, forced Rep. Greene to defend her eligibility under Section 3 to even appear on the ballot pursuant to a voter challenge to her candidacy--thereby imposing a qualification for office that conflicts with the constitutional mechanism contained in Section 3. In other words, by requiring Rep. Greene to adjudicate her eligibility under Section 3 to run for office through a state administrative process without a chance of congressional override, the State imposed a qualification in direct conflict with the procedure in Section 3--which provides a prohibition on being a Representative and an escape hatch.
Michael Foran (Glasgow), Rights, Common Good, and the Separation of Powers, The Modern L. Rev.:
Common good constitutionalism seeks to ground and legitimate choices of constitutional design and interpretation in a manner committed to pursuing the flourishing of all members of the community. This raises important questions relating to the separation of powers and fundamental rights protection. This paper seeks to advance and defend an account of rights-based judicial review from within a common good constitutional framework. It will argue that rights and the common good are co-constitutive: a genuinely common good will ensure the protection of fundamental rights and genuinely fundamental rights will help constitute and further the common good. With this in mind, a conception of the separation of powers will be advanced wherein different organs of state act collaboratively to ensure both that fundamental rights are protected and that the state can pursue goals which help to further the common good.
Thursday, November 3, 2022
The Ninth Circuit ruled yesterday that the Miss United States of America Pageant can exclude a transgender woman as a matter of free speech. The court said that the Pageant was inherently expressive, and that requiring it to include a transgender woman would impermissibly interfere with its message.
The case, Green v. Miss United States of America, arose when Anita Noelle Green, a transgender woman, sued the Pageant for excluding her in violation of the Oregon Public Accommodations Act. The Pageant claimed that it declined to include Green because she failed to meet its "natural born female" eligibility criterion, and that the Oregon Act violated the First Amendment insofar as it required the Pageant to include her. The district court ruled for the Pageant, and the Ninth Circuit affirmed (though for a slightly different reason).
The Ninth Circuit held that the Pageant was an expressive activity, protected by free speech, and that forcing it to accept a transgender woman would fundamentally alter its expressive message. The court said that compelling the Pageant to include the woman would amount to a content-based regulation on speech, triggering strict scrutiny--a standard the government couldn't meet. According to the court, that's because eliminating discrimination against LGBTQ individuals isn't a compelling government interest, at least in the speech context.
Judge VanDyke concurred and argued that requiring the Pageant to include Green would also violate the Pageant's First Amendment right to expressive association. (That was the basis of the district court's ruling.)
Judge dissented. She argued that the court should first figure out whether the Oregon Act even applied to the Pageant. But if it did, she argued that Green should prevail: the Oregon law compels neither speech nor association.
Mark A. Lemley (Stanford), Red Courts, Blue Courts:
The federal judiciary is increasingly fragmented into red courts and blue courts. Democratic presidents overwhelmingly appoint judges in blue states, while Republicans mostly appoint judges in red states.
This is a recent phenomenon; it was much less true even a decade ago.
It is accelerating. And it is likely to corrode both the rule of law and the public’s perception of it. In this Essay I document the phenomenon, explain why it is dangerous, and offer some thoughts on how to fix it.