Thursday, July 9, 2020
Court Says Congress Can Subpoena Trump Financial Records, but Must Account for Separation of Powers Concerns
The Supreme Court ruled today that while Congress has authority to issue subpoenas for the President's personal financial records, courts that judge those subpoenas must take more careful account of the separation-of-powers considerations at play.
The ruling in Trump v. Mazars vacates the lower courts' rulings and remands the case for reconsideration in light of the balancing test that the Court sets out.
The ruling means that the congressional committees won't get President Trump's financial records yet, and maybe never. It all depends on whether Congress can meet the test set out in the Court's opinion. Either way, it almost certainly won't happen before the 2020 election.
The ruling, like Vance, is a short-term victory for President Trump, in that his records probably won't come out soon. But on the other hand, it's a decisive long-term defeat for the presidency (and victory for Congress), as the Court affirmed Congress's power to subpoena the President's personal records, even with a somewhat higher-than-normal requirement.
Chief Justice Roberts wrote for the Court, joined by Justices Ginsburg, Breyer, Sotomayor, Kagan, Gorsuch, and Kavanaugh. Justice Thomas dissented, and Justice Alito dissented. (If you're keeping count, that's the same line-up as in Vance.)
The Court first rejected the President's sweeping claim that tried to shoe-horn executive privilege into the case: "We decline to transplant that protection root and branch to cases involving nonprivileged, private information, which by definition does not implicate sensitive Executive Branch deliberations."
The Court then acknowledged that Congress has very broad, but still defined, powers of investigation and subpoena, even against the President, and even for the President's personal papers. But the Court said that because these subpoenas sought personal information of the President (as the single head of the Executive Branch), they raised especial separation-of-powers concerns that the lower courts failed sufficiently to account for:
The House's approach fails to take adequate account of the significant separation of powers issues raised by congressional subpoenas for the President's information. . . .
Without limits on its subpoena powers, Congress could "exert an imperious controul" over the Executive Branch and aggrandize itself at the President's expense, just as the Framers feared.
The Court set out a non-exhaustive list of things that courts should look for in judging congressional subpoenas for a President's personal information:
First, courts should carefully assess whether the asserted legislative purpose warrants the significant step of involving the President and his papers. Congress may not rely on the President's information if other sources could reasonably provide Congress the information it needs in light of its particular legislative objective. . . .
Second, to narrow the scope of possible conflict between the branches, courts should insist on a subpoena no broader than reasonably necessary to support Congress's legislative objective. . . .
Third, courts should be attentive to the nature of the evidence offered by Congress to establish that a subpoena advances a valid legislative purpose. The more detailed and substantial the evidence of Congress's legislative purpose, the better. . . .
Fourth, courts should be careful to assess the burdens imposed on the President by a subpoena. . . .
Other considerations may be pertinent as well; one case every two centuries does not afford enough experience for an exhaustive list.
The Court vacated the lower courts' opinions and remanded for reconsideration under these factors.
Justice Thomas argued that "Congress has no power to issue a legislative subpoena for private, nonofficial documents--whether they belong to the President or not," unless Congress is investigating an impeachment.
Justice Alito dissented, too, arguing that the bar for Congress should be set higher than the Court's setting, and that "the considerations outlined by the Court can[not] be properly satisfied [on remand] unless the House is required to show more than it has put forward to date."
The Supreme Court ruled today that a state grand jury is not categorically prohibited from issuing a subpoena for the President's taxes and financial records. But the ruling leaves open the possibility that the President could argue that the subpoena violates state law, or that a particular subpoena, including this one, violates the separation of powers.
Because of that last bit, the ruling means that the grand jury probably won't get its hands on President Trump's taxes anytime soon. That's because the President is almost sure to pitch these arguments in state or federal court, and the litigation will likely take some time. That means that the ruling is likely a short-term win for the President.
But at the same time, the ruling is a dramatic loss for the presidency. That's because the Court unconditionally rejected the President's sweeping and categorical claim of absolute immunity against state criminal processes. President Trump overargued this, as did the DOJ, and the Court reined him in.
Chief Justice Roberts wrote the opinion, joined by Justices Ginsburg, Breyer, Sotomayor, and Kagan. Justice Kavanaugh wrote an opinion concurring in the judgment, joined by Justice Gorsuch. Justice Thomas dissented, and Justice Alito dissented.
The Court held that Presidents long lacked immunity from federal criminal subpoenas, going all the way back to the Burr trial. It ruled that there's nothing different about a state criminal subpoena that would categorically immunize the President (as the president argued), or even raise the bar for a presidential subpoena (as DOJ argued). In particular, the Court rejected the President's claims that a state grand jury subpoena could divert the President's attention, stigmatize the President (and undermine his leadership), and harass the President in violation of federalism principles. It similarly rejected DOJ's similar reasons for a higher bar for presidential subpoenas.
The Court nevertheless left open the possibility that the President (like anybody else) could challenge a state grand jury subpoena under state law, like law that bans bad faith subpoenas or those that create an undue burden. It also left open the possibility that the President could challenge a specific subpoena on the basis that a particular subpoena unduly interfered with his duties as President. (The problem in this case was that the President claimed a categorical immunity from state subpoenas.) The President will probably take up these claims now, leading to yet another round of litigation, and probably preventing the grand jury from getting the documents and records anytime soon.
Justice Kavanaugh, joined by Justice Gorsuch, concurred in the judgment but wrote separately to underscore that there may be state law or constitutional problems with this particular subpoena, depending on how the courts balance out the competing interests of the state courts and the President.
Justice Thomas dissented, agreeing with the majority that the President isn't categorically immune from the grand jury's issuance of the subpoena, but that he might be immune from the enforcement of it.
Justice Alito dissented, too, agreeing that the President isn't categorically immune, but arguing for a heightened standard, given the nature of the Presidency and the federalism system.
Wednesday, July 8, 2020
The Supreme Court today upheld the Trump Administration's rules substantially broadening the religious exemption and expanding it to those with a "moral" objection to the Affordable Care Act's contraception guarantee.
The ruling in Little Sisters v. Pennsylvania means that a dramatically expanded group of employers--those with a religious objection or moral objection to contraception--get an automatic free pass on the requirement that employers provide their female employees with health-insurance coverage that includes contraceptives. Covered employers need not file for an self-certified exemption or accommodation; they just have to, well, not provide coverage.
This could mean that between 70,500 and 126,400 women would lose access to contraceptive services under their employer-provided health insurance plans. (This is the Administration's estimate.)
The Court's ruling leaves open another challenge to the rules, however, and the plaintiffs could raise the argument on remand, that is, that the rules are arbitrary and capricious under the Administrative Procedure Act.
Justice Thomas wrote for the Court, joined by Chief Justice Roberts, Alito, Gorsuch, and Kavanaugh. The Court ruled that the Departments had statutory authority to adopt the rules under 42 U.S.C. Sec. 300gg-13(a)(4), which provides that "with respect to women," group health plans must "at a minimum, provide . . . such additional preventive care and screenings not described in paragraph (1) as provided for in comprehensive guidelines supported by [HRSA]." The Court said that the "as provided for" clause "grants sweeping authority to HRSA to craft a set of standards defining the preventive care that applicable health plans must cover," leaving the HRSA with "virtually unbridled discretion to decide what counts as preventive care and screenings." The Court held that this authority included the power "to identify and create exemptions" like the ones in the challenged rules.
The Court also held that the Departments complied with the procedural requirements in the Administrative Procedure Act in adopting the rules.
The Court expressly declined to say whether RFRA compelled the exemptions in the rules, as the Administration argued. Still, the Court did say that the Departments were within their powers to consider RFRA in writing the rules, and even that "[i]t is clear from the face of the statute that the contraceptive mandate is capable of violating RFRA."
Justice Alito concurred in full, joined by Justice Gorsuch. Justice Alito argued that the Court should have resolved the RFRA question in favor of the Administration--that is, that RFRA compelled the rules. According to Justice Alito, this would have meant that the rules were not impermissibly arbitrary and capricious under the APA, and thus foreclosed that argument on remand.
Justice Kagan, joined by Justice Breyer, concurred in the judgment. Justice Kagan argued that HRSA had statutory authority to exempt certain employers from the contraceptive guarantee, but (different than the Court) because the HRSA was entitled to Chevron deference in its interpretation of the ambiguous statutory language. She also argued that the rules could be arbitrary and capricious--an issue for the lower court on remand.
Justice Ginsburg dissented, joined by Justice Sotomayor. Justice Ginsburg pointed to an earlier provision in the Act that specifies that group health plans and health insurance issuers "shall" cover specified services. She argued that this provision mandates who is required to provide specified services--and that it doesn't include any exemptions. (She argued that the section that the Court relied on only went to what services must be provided, not who must provide them. And yet the rules provide exemptions for who must provide services.) She also argued that the rules weren't compelled by the Free Exercise Clause or RFRA.
Writing for the Court, Alito's opinion — joined by Chief Justice Roberts and Justices Thomas, Breyer, Kagan, Gorsuch, and Kavanaugh — held that although the teachers in these cases were not actually "ministers" by title and did not have as much as religious training as the teacher in Hosanna-Tabor, they are encompassed in the same exception from enforcement of anti-discrimination laws. The Court stated that the First Amendment protects a religious institution's independence on matters of "faith and doctrine" without interference from secular authorities, including selection of its "ministers." But who should qualify as a "minister" subject to this exemption? Recall that the factors of Hosanna-Tabor figured in the oral argument (and recall also that they figured in the Ninth Circuit's opinions). But here, the Court stated that while there may be factors, "What matters, at bottom, is what an employee does," rather than what the employee is titled. Moreover, the "religious institution's explanation of the role of such employees in the life of the religion" is important. Indeed, the religious institution's "explanation" seems determinative. The Court rejected a "rigid formula" for determining whether an employee is within the ministerial exception, concluding instead that:
When a school with a religious mission entrusts a teacher with the responsibility of educating and forming students in the faith, judicial intervention into disputes between the school and the teacher threatens the school’s independence in a way that the First Amendment does not allow.
The brief concurring opinion by Thomas, joined by Gorsuch, argues that the Court should go further and essentially make the implicit more explicit: the Court should decline to ever weigh in "on the theological question of which positions qualify as 'ministerial.' "
Sotomayor dissenting opinion, joined by Ginsburg, begins:
Two employers fired their employees allegedly because one had breast cancer and the other was elderly. Purporting to rely on this Court’s decision in Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC (2012), the majority shields those employers from disability and age-discrimination claims. In the Court’s view, because the employees taught short religion modules at Catholic elementary schools, they were “ministers” of the Catholic faith and thus could be fired for any reason, whether religious or nonreligious, benign or bigoted, without legal recourse. The Court reaches this result even though the teachers taught primarily secular subjects, lacked substantial religious titles and training, and were not even required to be Catholic. In foreclosing the teachers’ claims, the Court skews the facts, ignores the applicable standard of review, and collapses Hosanna-Tabor’s careful analysis into a single consideration: whether a church thinks its employees play an important religious role. Because that simplistic approach has no basis in law and strips thousands of school- teachers of their legal protections, I respectfully dissent.
For the dissent, the Court's conclusion has "grave consequences," noting that it is estimated that over 100,000 secular teachers employed by religiously-affiliated schools are now without employment protections. Further, it contrasts Esponiza v. Montana Dept of Revenue, decided this Term, in which the Court "lamented a perceived 'discrimination against religion,'" but here "it swings the pendulum in the extreme opposite direction, permitting religious entities to discriminate widely and with impunity for reasons wholly divorced from religious beliefs." The dissent concludes with a hope that the Court will be "deft" enough to "cabin the consequences" of this ministerial exception, but given the current composition of the Court, that hope seems a narrow one.
Monday, July 6, 2020
A unanimous Supreme Court today upheld a state law that punishes "faithless electors." The ruling means that states can continue to impose fines on individuals appointed to vote in the Electoral College who pledge their vote to one candidate, but actually vote for another. In a companion case (in a brief per curiam opinion), the Court held that a state could remove and replace a faithless elector with an elector who would vote for the winner of the state's popular vote.
The case, Chiafalo v. Washington, arose when three Washington electors who pledged to support Hillary Clinton in the 2016 presidential election actually voted for someone else. (They hoped that they could encourage other electors to do the same, and deny Donald Trump the presidency.) The state imposed a $1000 fine for each "faithless elector" for violating their pledge to support the candidate who won the state's popular vote.
The pledge wasn't a problem. The Court in 1952 upheld a pledge requirement, and a state's power to appoint only those electors who would vote for the candidate of the winning political party. But that case, Ray v. Blair, didn't answer the question whether a state could punish a faithless elector.
Today's ruling says yes.
Justice Kagan wrote for the Court. She noted first that the appointment power in Article II, Section 1, authorizes each state to appoint electors "in such Manner as the Legislature thereof may direct." This power to appoint "includes a power to condition [the] appointment--that is, to say what the elector must do for the appointment to take effect," including requiring the elector to pledge to cast a vote in the Electoral College that reflects the popular vote in the state. Then: "And nothing in the Constitution expressly prohibits States from taking away presidential electors' voting discretion as Washington does." In short, "a law penalizing faithless voting (like a law merely barring that practice) is an exercise of the State's power to impose conditions on the appointment of electors."
The Court also wrote that the practice of punishing a faithless elector is consistent with "long settled and established practice." "Washington's law, penalizing a pledge's breach, is only another in the same vein. It reflects a tradition more than two centuries old. In that practice, electors are not free agents; they are to vote for the candidate whom the State's voters have chosen."
Justice Thomas concurred, joined by Justice Gorsuch. Justice Thomas argued that the question isn't answered by Article II (or anything else in the Constitution), and so gets its answer from the federalism formula in the Tenth Amendment: "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."
In its opinion in Barr v. American Association of Political Consultants the United States Supreme Court held a provision of the Telephone Consumer Protection Act of 1991 (the “TCPA”), 47 U.S.C. § 227(b)(1)(A), exempting certain calls from the prohibition of robocalls violated the First Amendment.
Recall from our discussion when certiorari was granted that the federal law prohibits calls to cell phones by use of an automated dialing system or an artificial or prerecorded voice ("robocalls") subject to three statutory exemptions including one added in 2015 for automated calls that relate to the collection of debts owed to or guaranteed by the federal government including mortgages and student loans. Recall also from our oral argument preview that the case involves the tension between marketplace of ideas and privacy.
The challengers, political consultants and similar entities, argued that this exemption violated the First Amendment as a content regulation that could not survive strict scrutiny and further that the exemption could not be severed from the TCPA. To win, the challengers had to prevail on both arguments. However, a majority of the Justices found that while the exemption violated the First Amendment, it could be severed and so the prohibition in the TCPA applicable to the challengers remained valid.
As the plurality opinion expresses it:
Six Members of the Court today conclude that Congress has impermissibly favored debt-collection speech over political and other speech, in violation of the First Amendment. Applying traditional severability principles, seven Members of the Court conclude that the entire 1991 robocall restriction should not be invalidated, but rather that the 2015 government-debt exception must be invalidated and severed from the remainder of the statute. As a result, plaintiffs still may not make political robocalls to cell phones, but their speech is now treated equally with debt-collection speech. The judgment of the U. S. Court of Appeals for the Fourth Circuit is affirmed.
Despite this seeming overwhelming agreement, there is no majority opinion and the opinions demonstrate a perhaps needless fragmentation of the Justices and complication of precedent.
- Kavanaugh's plurality opinion garnered support from Chief Justice Roberts and Justice Alito, with Thomas joining on the First Amendment issue applying strict scrutiny to a content-based regulation, but not on the severability issue (Part III).
- Sotomayor wrote a brief solo concurring opinion, concluding that although the First Amendment standard should be the more relaxed intermediate scrutiny, the standard was not satisfied. She agreed that severability of the exemption was proper.
- Breyer, joined by Ginsburg and Kagan, agreed that the provision was severable, but dissented on the First Amendment issue, finding that strict scrutiny should not apply and that the robocall exemption survived intermediate-type scrutiny ("The speech-related harm at issue here — and any related effect of the marketplace of ideas — is modest").
- Gorsuch, joined in part by Thomas, agreed that the exemption violated the First Amendment, but argued that it was no severable, or more accurately that severability should not be the issue. He argued that severing and voiding the government-debt exemption does nothing to address the injury the challengers claimed and it harms strangers to this lawsuit. The opinion calls for a reconsideration of "severability doctrine" as a whole, citing in a footnote Thomas's partial dissent in Selia Law just last week.
Thus while the outcome is clear, its ultimate basis is muddied.
Tuesday, June 30, 2020
SCOTUS Holds Free Exercise Clause Bars Application of State's No-Aid to Religious Institutions Clause in State Constitution
In its opinion in Espinoza v. Montana Department of Revenue regarding a state tax credit scheme for student scholarships, the majority held that the scheme must be afforded to religious schools so that the Free Exercise Clause was not violated.
Recall that the Montana Supreme Court held that the tax credit program's application to religious schools was unconstitutional under its state constitution, Art. X §6 , which prohibits aid to sectarian schools. This type of no-aid provision is often referred to as (or similar to) a Blaine Amendment and frequently appears in state constitutions.
In a closely-divided decision, the Court decided that the Montana Supreme Court's decision that the tax credit program could not be extended to religious schools should be subject to struct scrutiny under the First Amendment's Free Exercise Clause and did not survive. (The Court therefore stated it need not reach the equal protection clause claims). The Court essentially found that this case was more like Trinity Lutheran Church of Columbia v. Comer (2017) (involving playground resurfacing) and less like Locke v. Davey, 540 U.S. 712 (2004), in which the Court upheld State of Washington statutes and constitutional provisions that barred public scholarship aid to post-secondary students pursuing a degree in theology. The Court distinguishes Locke v. Davey as pertaining to what Davey proposed "to do" (become a minister) and invoking a "historic and substantial” state interest in not funding the training of clergy. Instead, the Court opined that like Trinity Lutheran, Esponiza "turns expressly on religious status and not religious use."
The Court's opinion, by Chief Justice Roberts and joined by Thomas, Alito, Gorsuch, and Kavanaugh, is relatively compact at 22 pages. In addition to taking time to distinguish Locke v. Davey, the opinion devotes some discussion to federalism, invoking the Supremacy Clause and Marbury v. Madison in its final section. But the opinion also engages with the dissenting Justices' positions in its text and its footnotes. Along with the concurring opinions, the overall impression of Espinoza is a fragmented Court, despite the carefully crafted majority opinion.
The concurring opinion of Thomas — joined by Gorsuch — reiterates Thomas's view that the Establishment Clause should not apply to the states; the original meaning of the clause was to prevent the federal establishment of religion while allowing states to establish their own religions. While this concurring opinion criticizes the Court's Establishment Clause opinions, it does not confront why a state constitution would not be free to take an anti-establishment position.
Gorsuch also wrote separately, seemingly to emphasize that the record contained references to religious use (exercise) and not simply religious status. Gorsuch did not discuss the federalism issues he stressed in his opinion released yesterday in June Medical Services.
Alito's thirteen page concurring opinion is an exegesis on the origins of the Montana constitutional provision as biased. Alito interestingly invokes his dissenting opinion in Ramos v. Louisiana decided earlier this Term in which he argued that the original motivation of a state law should have no bearing on its present constitutionality: "But I lost, and Ramos is now precedent. If the original motivation for the laws mattered there, it certainly matters here."
(Noteworthy perhaps is that Roberts joined Alito's dissenting opinion in Ramos and Roberts's opinion in Esponiza does spend about 3 pages discussing the Blaine amendments' problematical history, but apparently this was insufficient for Alito).
Ginsburg's dissenting opinion, joined by Kagan, pointed to an issue regarding the applicability of the Court's opinion:
By urging that it is impossible to apply the no-aid provision in harmony with the Free Exercise Clause, the Court seems to treat the no-aid provision itself as unconstitutional. Petitioners, however, disavowed a facial First Amendment challenge, and the state courts were never asked to address the constitutionality of the no- aid provision divorced from its application to a specific government benefit.
Breyer, joined in part by Kagan, essentially argued that the majority gave short-shrift to Locke v. Davey and its "play-in-the-joints" concept authored by Rehnquist as expressing the relationship between the Establishment and Free Exercise Clause of the First Amendment. Breyer's opinion is almost as long as the majority opinion, and the majority takes several opportunities to express its disagreement with Breyer, including in a two paragraph discussion, his implicit departure from precedent (e.g., "building on his solo opinion in Trinity Lutheran").
Sotomayor's dissent, also criticized by the majority in text, argues that the Court is "wrong to decide the case at all" and furthermore decides it wrongly. The Court's reframing incorrectly addressed (or seemingly addressed?) whether the longstanding state constitutional provision was constitutional. Thus, she argues, the Court has essentially issued an advisory opinion. On the merits, she contends, "the Court’s answer to its hypothetical question is incorrect." She concludes that the majority's ruling is "perverse" because while the Court once held that "the Free Exercise Clause clearly prohibits the use of state action to deny the rights of free exercise to anyone, it has never meant that a majority could use the machinery of the State to practice its beliefs,” it now departs from that balanced view.
The Court's opinion is much more divided than it seems at first blush. And the future of state constitutional provisions that prohibit taxpayer money from being used to support religious institutions remains in doubt.
June 30, 2020 in Courts and Judging, Equal Protection, Establishment Clause, Federalism, First Amendment, Fourteenth Amendment, Free Exercise Clause, Opinion Analysis, State Constitutional Law, Supreme Court (US), Theory | Permalink | Comments (0)
Monday, June 29, 2020
The Supreme Court today struck the statutory independence of the Director of the Consumer Financial Protection Bureau, even as it declined to rule the entire CFPB unconstitutional. This means that the CFPB stays in place, Director and all, but that the President can terminate the Director at will. (As to the particular case before the Court, which challenged a CFPB enforcement demand, the ruling invalidates the demand. But the CFPB could reissue it and re-commence enforcement, but without protections for the Director.)
More broadly, the ruling in Seila Law v. CFPB says that Congress lacks authority to create an Executive Branch "independent" principal office, unless that office is part of a larger board or commission, and probably without significant executive power.
The ruling is a victory for the Trump Administration, which opposed independence for the CFPB Director. But at the same time, it sharply restricts Congress's power to create an independent principal office within the Executive Branch.
Under the Dodd-Frank Act, the CFPB has authority to implement and enforce a variety of consumer financial protection laws to "ensur[e] that all consumers have access to markets for consumer financial products and services and that markets for consumer financial products and services are fair, transparent, and competitive."
The Director is nominated by the President and confirmed by the Senate. In creating an independent Director, Congress legislated that the Director would be appointed for five years and can be removed only for "inefficiency, neglect of duty, or malfeasance in office." It's that "independence" that was at stake in the case.
The Court ruled that this independence violated the separation of powers. Pointing to the Article II Vesting Clause, the Court wrote that "[t]he entire 'executive Power' belongs to the President alone." It held that statutory independence for a principal executive officer who is not a part of a board of commission impermissibly restricts the President's executive power.
The Court distinguished Humphrey's Executor, holding that Humphrey's upheld the independence of a multi-member board, the FTC, whereas the CFPB has a single head. According to the Court, unlike the FTC (at the time), the CFPB's single Director is not a "body of experts," is not "non-partisan," and does not have staggered terms that "prevent complete turnover in leadership." Moreover, the CFPB Director has greater responsibilities than the old FTC did, including the "quintessentially executive power" to seek monetary penalties in federal court.
The Court distinguished Morrison v. Olson, holding that Congress may create an independent inferior officer. The Court said that the CFPB Director was a principal office, and had more wide-ranging authority than the independent counsel in Morrison, and that the independent counsel's prosecutorial authority looked inward, to Executive Branch officials on specified matters, whereas the CFPB Director has authority over "millions of private citizens and businesses, imposing even billion-dollar penalties through administrative adjudications and civil actions."
The Court declined to "extend" those cases to cover the "new situation" of the CFPB Director's independence. The Court said that there was no precedent for this kind of office, and that it "is incompatible with our constitutional structure." "The . . . constitutional strategy is straightforward: divide power everywhere except for the Presidency, and render the President directly accountable to the people through regular elections. In that scheme, individual executive officials will still wield significant authority, but that authority remains subject to the ongoing supervision and control of the elected President."
But even as the Court struck statutory independence for the Director, it declined to take down the entire CFPB. The Court ruled that the independence provision was severable from the rest of the Act, and therefore that the CFPB could remain, Director and all, but without the independence protection.
Justice Kagan, dissenting on independence but concurred on severability, and joined by Justices Ginsburg, Breyer, and Sotomayor, wrote:
If a removal provision violates the separation of powers, it is because the measure so deprives the President of control over an official as to impede his own constitutional functions. But with or without a for-cause removal provision, the President has at least as much control over an individual as over a commission--and possibly more. That means the constitutional concern is, if anything, ameliorated when the agency has a single head. . . .
In second-guessing the political branches, the majority second-guesses as well the wisdom of the Framers and the judgment of history. It writes in rules to the Constitution that the drafters knew well enough not to put there. It repudiates the lessons of American experience, from the 18th century to the present day. And it commits the Nation to a new static version of governance, incapable of responding to new conditions and challenges.
An article in the New York Times exploring the inner workings of the Washington Post has more than insider media news: it begins by divulging the role of the Washington Post editors in not publishing news about Supreme Court nominee Bret Kavanaugh during his contentious confirmation hearing.
Almost anyone who works in the Washington Post newsroom can look inside its publishing system, Methode, to see what stories are coming. And at the height of the furor over Brett Kavanaugh’s nomination to the Supreme Court in 2018, some who did saw a shocking article awaiting publication.
In the article, Bob Woodward, the Post legend who protected the identity of his Watergate source, Deep Throat, for 30 years, was going to unmask one of his own confidential sources. He was, in particular, going to disclose that Judge Kavanaugh had been an anonymous source in his 1999 book “Shadow: Five Presidents and the Legacy of Watergate.”
Mr. Woodward was planning to expose Mr. Kavanaugh because the judge had publicly denied — in a huffy letter in 1999 to The Post — an account about Kenneth Starr’s investigation of President Bill Clinton that he had himself, confidentially, provided to Mr. Woodward for his book. (Mr. Kavanaugh served as a lawyer on Mr. Starr’s team.)
The article, described by two Post journalists who read it, would have been explosive, arriving as the nominee battled a decades-old sexual assault allegation and was fighting to prove his integrity.
The article was nearly ready when the executive editor, Martin Baron, stepped in. Mr. Baron urged Mr. Woodward not to breach his arrangement with Mr. Kavanaugh and to protect his old source’s anonymity, three Post employees said. (The three, as well as other Post journalists who spoke to me, insisted on anonymity because The Post prefers that its employees not talk to the media.)
Mr. Baron and other editors persuaded Mr. Woodward that it would be bad for The Post and “bad for Bob” to disclose a source, one of the journalists told me. The piece never ran.
How this is coming to light now is left unexplained.
In its opinion in Agency for International Development v. Alliance for Open Society International — or what will be called USAID v. Alliance for Open Society II — the Court's majority rejected the applicability of the First Amendment to foreign affiliates of the United States organizations who had previously prevailed in their First Amendment challenge.
Recall that AOSI I, the Court in 2013 held that the anti-prostitution pledge required of organizations seeking federal funding under the United States Leadership Against HIV/AIDS, Tuberculosis, and Malaria Act of 2003, violated the First Amendment. Writing for the Court, Chief Justice Roberts opined that the provision was an unconstitutional condition ("the relevant distinction that has emerged from our cases is between conditions that define the limits of the government spending program—those that specify the activities Congress wants to subsidize—and conditions that seek to leverage funding to regulate speech outside the contours of the program itself").
Yet questions arose whether this holding extended to not only to the plaintiffs but to their "foreign affiliates." A district court and a divided Second Circuit found that foreign affiliates were included.
A divided United States Supreme Court, in an opinion written by the Court's newest Justice, held that foreign organizations have no First Amendment rights. Kavanaugh, joined by Chief Justice Roberts, Thomas, Alito, and Gorsuch, wrote that
two bedrock principles of American constitutional law and American corporate law together lead to a simple conclusion: As foreign organizations operating abroad, plaintiffs’ foreign affiliates possess no rights under the First Amendment.
Thomas authored a brief concurring opinion restating his view that AOSI I was incorrectly decided.
Justice Breyer wrote a dissenting opinion which was joined by Ginsburg and Sotomayor (note that Kagan had recused herself), arguing that the Court's opinion misapprehended the issue:
The Court, in my view, asks the wrong question and gives the wrong answer. This case is not about the First Amendment rights of foreign organizations. It is about—and has always been about—the First Amendment rights of American organizations. . . .
the question is whether the American organizations enjoy that same constitutional protection against government-compelled distortion when they speak through clearly identified affiliates that have been incorporated overseas. The answer to that question, as I see it, is yes.
In its highly anticipated opinion in June Medical Services v. Russo (formerly Gee), the United States Supreme Court reversed the Fifth Circuit's controversial decision upholding Louisiana's abortion restrictions despite their similarity to the ones held unconstitutional in the Court's most recent abortion case, Whole Woman's Health v. Hellerstedt (2016).
Justice Breyer, who also wrote the Court's opinion in Whole Woman's Health, wrote the plurality opinion in June Medical, joined by Ginsburg, Sotomayor and Kagan (None of the women Justices wrote separately, meaning that the abortion opinions in today's case are all by men).
Breyer's plurality opinion concluded that there is standing; recall that the United States argued that the physicians should not have standing to raise the constitutional rights of their patients despite this long standing practice. Breyer's plurality opinion carefully rehearses the findings of fact by the district court (which applied Whole Women's Health) and ultimately concluded that the "evidence on which the District Court relied in this case is even stronger and more detailed" than in Whole Woman's Health. The Fifth Circuit, Breyer's plurality opinion concluded, misapplied the correct standard of review of these findings: the appellate court should have applied the deferential clear-error standard.
Chief Justice Roberts, who dissented in Whole Woman's Health, concurred in June Medical on the basis of stare decisis:
I joined the dissent in Whole Woman’s Health and continue to believe that the case was wrongly decided. The question today however is not whether Whole Woman’s Health was right or wrong, but whether to adhere to it in deciding the present case . . . .
The legal doctrine of stare decisis requires us, absent special circumstances, to treat like cases alike. The Louisiana law imposes a burden on access to abortion just as severe as that imposed by the Texas law, for the same reasons. Therefore Louisiana’s law cannot stand under our precedents.
The Chief Justice's sixteen page concurring opinion, necessary to constitute the majority reversing the Fifth Circuit and upholding Whole Woman's Health is bound to be highly analyzed.
The dissenting opinions are somewhat fragmented. Thomas's dissenting opinion and Alito's dissenting opinion, joined by Gorsuch, and in part by Thomas and Kavanaugh, tracks ground familiar from Whole Woman's Health, with additional discussions of stare decisis. Gorsuch, who was not on the Court when Whole Woman's Health was decided in 2016, penned an opinion accusing the Court of having "lost" its way in a "highly politicized and contentious arena" by not paying due deference to the state legislature. Kavanaugh, who replaced Kennedy who had joined the majority in Whole Woman's Health, not only joined portions of Alito's dissent but wrote separately to stress his agreement with the portions of Alito's opinion that the case should be remanded, and in a footnote also stated that "the District Court on remand should also address the State’s new argument (raised for the first time in this Court) that these doctors and clinics lack third-party standing."
Friday, June 26, 2020
In a pair of rulings today, here and here, the Ninth Circuit held that President Trump exceeded his authority under federal law and violated the Appropriations Clause in reprogramming funds to build portions of a border wall between the U.S. and Mexico.
The rulings are a sharp set-back to President Trump's efforts to make good on his promise to build the wall.
Today's rulings come after the case has already been to the Supreme Court. Recall that the Court earlier granted the Administration's motion for a stay of the district court's earlier injunction, affirmed by the Ninth Circuit. The Court's stay meant that the injunction would not remain in place as the case moved forward on the merits. So the case moved forward on the merits, sans injunction. But then the district court ruled in favor of the plaintiffs and granted a new injunction. That's why we got today's rulings.
(There's some weirdness here. The Supreme Court granted the stay, stating, "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." Despite this language, the court today ruled that the plaintiffs in both cases did have causes of action.)
The rulings say that President Trump exceeded his authority under the 2019 Defense Department Appropriations Act and violated the Appropriations Clause, and affirmed a permanent injunction.
The court held that in order to reprogram under Sections 8005 and 9002 of the 2019 Defense Department Appropriations Act, (1) there must be for an unforeseen military requirement and (2) Congress must not have previously denied funding. The court said that President Trump's reprogramming violated both requirements.
As to the first, the court said that the border wall was no "unforeseen military requirement." Among other things, the court noted that President Trump had long advocated for the wall, suggesting that it couldn't have been "unforeseen."
As to the second, the court noted that Congress had previously denied the Administration's request for full funding.
Judge Collins dissented in both cases. Judge Collins argued that the plaintiffs didn't have a cause of action (see the weirdness parenthetical, above), and that even if they did they'd lose on the merits.
Wednesday, June 24, 2020
A sharply divided three-judge panel of the D.C. Circuit today ordered Judge Emmet Sullivan to dismiss the criminal case against Michael Flynn for lying to the FBI. This is hardly the final word, though: the extraordinary ruling is sure to go to the full circuit, and perhaps even the Supreme Court.
Flynn was charged with lying to the FBI as part of the FBI's investigation into connections between the Trump campaign and Russia in the 2016 election. He pleaded guilty--twice, before two different federal judges--and agreed to cooperate with the government in its ongoing investigation. The court deferred sentencing to allow Flynn to continue to cooperate.
Flynn then moved to withdraw his plea, arguing that the government failed to produce exculpatory evidence. Most recently, DOJ came across material that, according to the government, means that the prosecution can no longer prove the charge. So the government moved to dismiss the case.
Judge Sullivan appointed an amicus to represent the no-dismissal side, invited other amici to weigh in, and set a hearing date on the motions--all to determine whether he should grant "leave of court" to dismiss. (That's the standard under a Rule 48(a) motion to dismiss a criminal charge.) (Judge Sullivan had serious concerns about the government's motion, given the many, many irregularities in the case.)
Then Flynn filed a writ of mandamus in the D.C. Circuit, and the government weighed in to support it. Note that Judge Sullivan had not yet even held the hearing on the motion to dismiss, much less denied it.
(Just gotta say it: Wow. Not your usual federal prosecution.)
Today the D.C. Circuit ruled for Flynn and ordered the prosecution dismissed. Judge Rao wrote the majority opinion, which concluded that Judge Sullivan committed clear legal error. Moreover, by ordering dismissal without a hearing or further consideration by the lower court, the court said that the district court had no role under the Rule 48(a) "with-leave-of-court" standard.
Judge Rao started by noting that a prosecution's motion to dismiss is entitled to a presumption of regularity. But the court wrote that Judge Sullivan raised nothing to challenge this presumption, or to show that this was the kind of case that warranted a hearing or further judicial inquiry into the motion. As such, the court concluded that Judge Sullivan went beyond his authority in appointing an amicus and scheduling a hearing. Again: All this before Judge Sullivan even held the hearing, much less ruled against dismissal.
Judge Rao explained in separation-of-powers terms:
In this case, the district court's actions will result in specific harms to the exercise of the Executive Branch's exclusive prosecutorial power. The contemplated proceedings would likely require the Executive to reveal the internal deliberative process behind its exercise of prosecutorial discretion, interfering with the Article II charging authority. Thus, the district court's appointment of the amicus and demonstrated intent to scrutinize the reasoning and motives of the Department of Justice constitute irreparable harms that cannot be remedied on appeal.
Judge Rao seemed to try to leave open some room for a district court to determine whether to grant "leave of court" on a Rule 48(a) motion to dismiss. But if this case doesn't fit the bill (again, with all its irregularities), it's not clear what would.
Judge Wilkins dissented. In short:
This appears to be the first time that we have issued a writ of mandamus to compel a district court to rule in a particular manner on a motion without first giving the lower court a reasonable opportunity to issue its own ruling; the first time any court has held that a district court must grant "leave of court" pursuant to Federal Rule of Criminal Procedure 48(a) without even holding a hearing on the merits of the motion; and the first time we have issued the writ even though the petitioner has an adequate alternative remedy [that is, appeal after a denial of the motion to dismiss], on the theory that another party [the government] would not have had an adequate alternative remedy if it had filed a petition as well. Any one of these is sufficient reason to exercise our discretion to deny the petition; together they compel its rejection.
Thursday, June 18, 2020
In its opinion in Department of Homeland Security v. Regents of the University of California (consolidated with Trump v. NAACP, and McAleenan v. Vidal), the Court held that the Trump Administration's rescission of the DACA program forestalling deportation proceedings against undocumented persons who have resided in the United States since childhood was arbitrary and capricious under the Administrative Procedure Act (APA). To reach that conclusion, the Court first found that the rescission decision was reviewable.
As we noted in our discussion of the oral argument (which occurred more than six months ago), the focus on the APA is not surprising although there were constitutional issues. And as foreshadowed in the oral argument, the question of whether the Trump Administration memos adequately considered the issue of reliance on the DACA policy was central to the Court's opinion.
The opinion by Chief Justice Roberts was joined by Justices Ginsburg, Breyer, and Kagan in full, and joined by Justice Sotomayor except to Part IV regarding the Equal Protection claim (applicable to the federal government through the Fifth Amendment). On the Equal Protection claim, Roberts, writing for a plurality, reasoned:
To plead animus, a plaintiff must raise a plausible inference that an “invidious discriminatory purpose was a motivating factor” in the relevant decision. Arlington Heights v. Metropolitan Housing Development Corp., 429 U. S. 252, 266 (1977). Possible evidence includes disparate impact on a particular group, “[d]epartures from the normal procedural sequence,” and “contemporary statements by members of the decisionmaking body.” Tracking these factors, respondents allege that animus is evidenced by (1) the disparate impact of the rescission on Latinos from Mexico, who represent 78% of DACA recipients; (2) the unusual history behind the rescission; and (3) pre- and post-election statements by President Trump. Brief for New York 54–55.
None of these points, either singly or in concert, establishes a plausible equal protection claim. First, because Latinos make up a large share of the unauthorized alien population, one would expect them to make up an outsized share of recipients of any cross-cutting immigration relief program.Were this fact sufficient to state a claim, virtually any generally applicable immigration policy could be challenged on equal protection grounds.
Second, there is nothing irregular about the history leading up to the September 2017 rescission. . . .
Finally, the cited statements are unilluminating. The relevant actors were most directly Acting Secretary Duke and the Attorney General.. . .Instead, respondents contend that President Trump made critical statements about Latinos that evince discriminatory intent. But, even as interpreted by respondents, these statements—remote in time and made in unrelated contexts— do not qualify as “contemporary statements” probative of the decision at issue.
[some citations omitted].
Justice Sotomayor disagreed. In her concurring opinion she stressed that the equal protection challenges were still in a "preliminary posture," so that all that was necessary at this stage of the litigation was a statement of sufficient facts that would allow a court to draw the reasonable inference that there is liability for the misconduct alleged. For Sotomayor, this threshold was met and her opinion criticizes the plurality for "discounting some allegations altogether and by narrowly viewing the rest." Instead, Sotomayor argues that Trump's statements matter, as she did in her dissenting opinion in Trump v. Hawai'i (2018) (the "travel ban" case). Further, she contends that the
the impact of the policy decision must be viewed in the context of the President’s public statements on and off the campaign trail. At the motion-to-dismiss stage, I would not so readily dismiss the allegation that an executive decision disproportionately harms the same racial group that the President branded as less desirable mere months earlier.
Finally, the plurality finds nothing untoward in the “specific sequence of events leading up to the challenged decision.” Arlington Heights v. Metropolitan Housing Development Corp., 429 U. S. 252, 267 (1977). I disagree. As late as June 2017, DHS insisted it remained committed to DACA, even while rescinding a related program, the Deferred Action for Parents of Americans and Lawful Permanent Residents. But a mere three months later, DHS terminated DACA without, as the plurality acknowledges, considering important aspects of the termination. The abrupt change in position plausibly suggests that something other than questions about the legality of DACA motivated the rescission decision. Accordingly, it raises the possibility of a “significant mismatch between the decision . . . made and the rationale . . . provided.” Department of Commerce v. New York, 588 U. S. ___, ___ (2019) (slip op., at 26). Only by bypassing context does the plurality conclude otherwise.
The otherwise dissenting opinions concurred with the plurality on rejection of the equal protection claims.
Thus, with the nonconstitutional grounds for judgment, it is possible that the Trump Administration could attempt to rescind DACA by complying with the administrative requirements of the APA and not acting in an arbitrary and capricious manner. Whether or not the Trump Administration proceeds in that direction is uncertain.
Monday, June 15, 2020
In its opinion in the consolidated cases of Bostock v. Clayton County, the United States Supreme Court interpreted the prohibition of discrimination "because of sex" in Title VII of the 1964 Civil Rights Act, 42 U.S.C. §2000e et. seq. to include sexual and transgender identities. As we discussed in our preview, two of the consolidated cases involved sexual orientation discrimination - Altitude Express v. Zarda and Bostock v. Clayton County Board of Commissioners - while the third - R.G. & G.R. Harris Funeral Homes v. EEOC - involved gender identity.
The Court's opinion, authored by Justice Gorsuch and joined by Chief Justice Roberts, and Justices Ginsburg, Breyer, Sotomayor, and Kagan, states:
At bottom, these cases involve no more than the straightforward application of legal terms with plain and settled meanings. For an employer to discriminate against employees for being homosexual or transgender, the employer must intentionally discriminate against individual men and women in part because of sex. That has always been prohibited by Title VII’s plain terms—and that “should be the end of the analysis.”
After considering and rejecting the employers' arguments, the opinion concludes:
Some of those who supported adding language to Title VII to ban sex discrimination may have hoped it would derail the entire Civil Rights Act. Yet, contrary to those intentions, the bill became law. Since then, Title VII’s effects have unfolded with far-reaching consequences, some likely beyond what many in Congress or elsewhere expected.
But none of this helps decide today’s cases. Ours is a society of written laws. Judges are not free to overlook plain statutory commands on the strength of nothing more than suppositions about intentions or guesswork about expectations. In Title VII, Congress adopted broad language making it illegal for an employer to rely on an employee’s sex when deciding to fire that employee. We do not hesitate to recognize today a necessary consequence of that legislative choice: An employer who fires an individual merely for being gay or transgender defies the law.
The judgments of the Second and Sixth Circuits in Nos. 17–1623 and 18–107 are affirmed. The judgment of the Eleventh Circuit in No. 17–1618 is reversed, and the case is remanded for further proceedings consistent with this opinion.
The Court's opinion is 33 pages or so and there are no concurring opinions. Justice Alito's dissent, joined by Justice Thomas, weighs in at over 100 pages including its appendices. There is another dissenting opinion by Justice Kavanaugh, at a more modest 27 pages.
It is the dissenting opinions that provide the constitutional law perspective to the Court's statutory interpretation decision: both claim that the Court is violating separation of powers. Justice Alito begins his lengthy dissent by stating:
There is only one word for what the Court has done today: legislation. The document that the Court releases is in the form of a judicial opinion interpreting a statute, but that is deceptive.
And the Court's most recently appointed Justice, Kavanaugh, begins in a similar vein:
Like many cases in this Court, this case boils down to one fundamental question: Who decides?
Kavanaugh concludes that it should not be the Court's decision, but does expound on why the Court's interpretation regarding "sex" is incorrect.
Congress could, of course, amend Title VII to exclude LGBTQ identities. But the momentum in Congress has tilted in the direction of inclusion, a step which would now be redundant.
As for the connections between Title VII and the Equal Protection Clause and the definitions of "sex" and protection for LGBTQ individuals, these arise in the dissenting opinions. Alito's dissent worries that the Title VII interpretation will "exert a gravitational pull in constitutional cases," so that LGBTQ identities will be afforded the heightened scrutiny standard applicable to sex/gender. For his part, Kavanaugh's dissent stresses that in the Court's discussions of sexual orientation in equal protection doctrine, the Court did not consider sexual orientation part of sex discrimination.
Additionally, all of the opinions raise the First Amendment free exercise of religion specter. The Court's majority states that "worries about how Title VII may intersect with religious liberties are nothing new; they even predate the statute’s passage," but that issue is for another day:
So while other employers in other cases may raise free exercise arguments that merit careful consideration, none of the employers before us today represent in this Court that compliance with Title VII will infringe their own religious liberties in any way.
For Alito dissenting, his views are similar to his views in the same-sex marriage cases. He states here that the " position that the Court now adopts will threaten freedom of religion, freedom of speech, and personal privacy and safety. No one should think that the Court’s decision represents an unalloyed victory for individual liberty."
Tuesday, June 2, 2020
A unanimous Supreme Court yesterday ruled in Financial Oversight and Management Board for Puerto Rico v. Auerelius Investment, LLC, that the President's appointment of members to the Financial Oversight Board, without Senate advice and consent, didn't violate (or even implicate) the Appointments Clause.
The ruling is a win for the Board and its authority to carry Puerto Rico through bankruptcy.
The Court said first that the Appointments Clause applies to all officers of the United States, including officers who operate within territories. But it went on to say that Board members in this case aren't officers of the United States, and the Appointments Clause therefore doesn't restrict their appointment.
The Court looked functionally to the Board's powers and duties and concluded that they're local, not national. The Court said that Board members therefore aren't officers of the United States covered by the Appointments Clause.
Justice Thomas concurred. He argued that the Court should have looked to the original public meaning of the Appointments Clause, not the "ill-defined path" that it took, and come out with the same result.
Justice Sotomayor concurred, too. She argued that given Puerto Rico's history--and, in particular, the compact between Puerto Rico and the federal government that established home rule for the island--it wasn't clear that Congress could create the Board at all. But nevertheless concurred, because the parties hadn't raised that issue:
These cases raise serious questions about when, if ever, the Federal Government may constitutionally exercise authority to establish territorial officers in a Territory like Puerto Rico, where Congress seemingly ceded that authority long ago to Puerto Rico itself. . . .
The Board members, tasked with determining the financial fate of a self-governing Territory, exist in a twilight zone of accountability, neither selected by Puerto Rico itself nor subject to the strictures of the Appointments Clause. I am skeptical that the Constitution countenances this freewheeling exercise of control over a population that the Federal Government has explicitly agreed to recognize as operating under a government of their own choosing, pursuant to a constitution of their own choosing. . . . Nevertheless, because these issues are not properly presented in these cases, I reluctantly concur in the judgment.
Monday, June 1, 2020
A sharply divided Supreme Court ruled today in Thole v. U.S. Bank that retirement-plan participants can't sue their former employer for mismanagement of the plan, because they hadn't demonstrated sufficient direct and concrete harm.
The ruling deals a sharp blow to defined-benefit plan participants who seek to sue for plan mismanagement. Under the ruling, those participants have to wait until their actual benefits drop, or close to it. And even so, the Court's ruling may give employers an out. At the same time, the ruling shields employers from liability unless and until their mismanagement is so bad that it actually or imminently results in lowered benefits.
While the plaintiffs sued under the individual cause of action in ERISA, the Court's ruling is based on Article III standing. This means that Congress can't change the law to create more permissive standing.
The case arose when two retirees of U.S. Bank sued that Bank and others for mismanaging their retirement-plan assets. The plaintiffs sued under ERISA's individual cause of action.
The Court ruled that the plaintiffs lacked Article III standing because, in short, they didn't suffer a harm. Justice Kavanaugh wrote for the five conservatives that the plaintiffs' monthly defined benefits didn't drop, or wouldn't imminently drop, based on the mismanagement, and any court ruling wouldn't affect their monthly benefits under the plan.
The Court also noted that the plaintiffs' benefits wouldn't drop even if the retirement plan failed, because the Pension Benefit Guarantee Corporation backstops failed retirement plans. This raises the question whether the plaintiffs would have standing even if the plan's failing led to a reduction in the benefits that the plan pays out (because the plaintiffs, after all, would theoretically continue to receive the full measure of their defined-benefit plan, even if from the PBGC, and not the plan).
The ruling means that the plaintiffs have to wait to sue until the plan's failure actually or imminently results in a reduction in their own benefits. And even then, the Court might've written in an out for the employer by noting that the PBGC backstops failing plans.
Justice Sotomayor, joined by the three other progressives, dissented. She argued that the plaintiffs have an interest in their plan's integrity, just as private trust beneficiaries have an interest in protecting their trust; that breach of a fiduciary duty is a cognizable injury, even if it doesn't result in financial harm or increased risk of nonpayment; and that the plaintiffs have associational standing to sue on behalf of the plan.
It is hard to overstate the harmful consequences of the Court's conclusion. . . . After today's decision, about 35 million people with defined-benefits plans will be vulnerable to fiduciary misconduct. The Court's reasoning allows fiduciaries to misuse pension funds so long as the employer has a strong enough balance sheet during (or, as alleged here, because of) the misbehavior. Indeed, the Court holds that the Constitution forbids retirees to remedy or prevent fiduciary breaches in federal court until their retirement plan or employer is on the brink of financial ruin. This is a remarkable result, and not only because this case is bookended by two financial crises.
Saturday, May 30, 2020
A closely divided Court in South Bay United Pentacostal Church v. Newsom denied the application for emergency injunction relief sought by the church from California Governor Newsom's Executive Order placing numerical restrictions on all gatherings to combat the spread of the highly infectious corona virus causing COVID-19. The Ninth Circuit panel and the district judge had similarly denied the church's motion for a preliminary injunction.
There is no opinion from the Court. Chief Justice Roberts, who joined the majority in rejecting the emergency application, filed a brief concurring opinion. On the merits, Chief Justice Roberts wrote:
Although California’s guidelines place restrictions on places of worship, those restrictions appear consistent with the Free Exercise Clause of the First Amendment. Similar or more severe restrictions apply to comparable secular gatherings, including lectures, concerts, movie showings, spectator sports, and theatrical performances, where large groups of people gather in close proximity for extended periods of time. And the Order exempts or treats more leniently only dissimilar activities, such as operating grocery stores, banks, and laundromats, in which people neither congregate in large groups nor remain in close proximity for extended periods.
The precise question of when restrictions on particular social activities should be lifted during the pandemic is a dynamic and fact-intensive matter subject to reasonable disagreement. Our Constitution principally entrusts “[t]he safety and the health of the people” to the politically accountable officials of the States “to guard and protect.” Jacobson v. Massachusetts, 197 U. S. 11, 38 (1905). When those officials “undertake[ ] to act in areas fraught with medical and scientific uncertainties,” their latitude “must be especially broad.” Marshall v. United States, 414 U. S. 417, 427 (1974). Where those broad limits are not exceeded, they should not be subject to second-guessing by an “unelected federal judiciary,” which lacks the background, competence, and expertise to assess public health and is not accountable to the people. See Garcia v. San Antonio Metropolitan Transit Authority, 469 U. S. 528, 545 (1985).
That is especially true where, as here, a party seeks emergency relief in an interlocutory posture, while local officials are actively shaping their response to changing facts on the ground. The notion that it is “indisputably clear” that the Government’s limitations are unconstitutional seems quite improbable.
In short, religious gatherings were not being treated any differently under the California Order and the judiciary should defer to the politically accountable entities in health situations, especially when these are uncertain and changing.
Justice Bret Kavanaugh wrote a dissenting opinion, joined by Justices Thomas and Gorsuch — but interestingly not Justice Alito — concluding that the California Order did not treat the religious institutions the same as "comparable secular businesses" such as grocery stores. Kavanaugh argues that given this differential treatment, struct scrutiny should apply, and California has not advanced a sufficiently compelling reason to treat religious gatherings differently.
As the pandemic continues, there is certainly sure to be more litigation, but for a majority of the Court, gatherings including those that are religious can be limited in service to public health.
May 30, 2020 in Cases and Case Materials, Courts and Judging, First Amendment, Free Exercise Clause, Medical Decisions, Opinion Analysis, Religion, Science, Supreme Court (US) | Permalink | Comments (0)
Tuesday, May 26, 2020
Florida District Judge Issues Injunction on Florida Statute Requiring Payment of Fines and Fees for Re-enfranchisement
The 125 page opinion in Jones v. DeSantis by United States District Judge Robert Hinkle results in an detailed permanent injunction outlining how Florida must comply with the constitutional and statutory requirements required to implement its statute requiring the payment of fees and fines before persons convicted of felonies be re-enfranchised.
Recall that Florida law disenfranchising persons convicted of felonies, held unconstitutional in 2018, was changed by a voter referendum to amend the Florida Constitution. Amendment 4. Amendment 4 changed the Florida Constitution to provide:
any disqualification from voting arising from a felony conviction shall terminate and voting rights shall be restored upon completion of all terms of sentence including parole or probation.
Fla. Const. Art. VI §4. After the amendment was passed, the Florida legislature passed SB7066, codified as Fla. Stat. §98.071 (5) which defined "completion of all terms of sentence" to include "full payment of any restitution ordered by the court, as well as "Full payment of fines or fees ordered by the court as a part of the sentence or that are ordered by the court as a condition of any form of supervision, including, but not limited to, probation, community control, or parole."
Recall Judge Hinkle previously issued a preliminary injunction regarding indigent persons, finding that the statute as to the named plaintiffs violated equal protection.
Recall also that the Eleventh Circuit upheld the preliminary injunction, finding that to the "extent a felon can pay" the legal financial obligations (LFOs), they must, but clearly affirmed the district court's order enjoining the state "from preventing the plaintiffs from voting based solely on their genuine inability to pay legal financial obligations."
Now, Judge Hinkle has heard evidence in the five consolidated cases and issued a detailed injunction.
As to the equal protection claim of persons who are "genuinely unable to pay their LFOs," Judge Hinkle found the Eleventh Circuit decision upholding the preliminary injunction was determinative. But the determination of "genuinely unable to pay" had its own constitutional issues:
The State has shown a staggering inability to administer the pay-to- vote system and, in an effort to reduce the administrative difficulties, has largely abandoned the only legitimate rationale for the pay-to-vote system’s existence.
The state, it seemed, could not determine the original obligation for individuals, and it could not determine the amount that individuals had paid - - - changing its accounting from an "actual-balance method" to a "every-dollar method." The opinion does an admirable job of explaining the methods and providing examples - - - and it seems clear that it is incoherent. Further, the department of elections charged with administering the system did not have a system or the resources it.
On equal protection on the basis of race or gender, Judge Hinkle rejected both claims "on balance," but did provide serious consideration.
On the Twenty-fourth Amendment, the court stated that while the Florida statute was not a poll tax, the fees imposed on defendants as payment to run the criminal justice system were "any other tax" within the Amendment.
On procedural due process, the problems with the state system and the "request an advisory opinion" method provided to individuals to determine the amounts due merited analysis, as well as a large portion of the mandated injunction (below).
While the States may certainly chose to appeal, Florida would not seem to have a very good chance returning to the Eleventh Circuit.
Tuesday, May 19, 2020
The Sixth Circuit has granted en banc review requested by a member of the court (rather than the parties) in Gary B. v. Whitmer. The panel's "previous decision and judgment of this court are vacated, the mandates are stayed, and these cases are restored to the docket as pending appeals."
This is not unanticipated. Recall that a divided panel held that there is a fundamental right to a "basic minimum education" providing "access to literacy" as a substantive due process right under the Fourteenth Amendment. Our extensive analysis of the panel opinion is here.