Tuesday, February 25, 2020
SCOTUS Hears Oral Arguments in First Amendment Challenge to Crime of Encouraging or Inducing Immigration Violation
The Court heard oral argument in United States v. Sineneng-Smith involving the constitutionality of 8 U.S.C.§ 1324(a)(1)(A)(iv). The statute makes it a crime for any person who
encourages or induces an alien to come to, enter, or reside in the United States, knowing or in reckless disregard of the fact that such coming to, entry, or residence is or will be in violation of law.
The Ninth Circuit held that this subsection "criminalizes a substantial amount of protected expression in relation to the statute’s narrow legitimate sweep; thus, we hold that it is unconstitutionally overbroad in violation of the First Amendment."
The oral argument before the Supreme Court on certiorari was a criss-crossing of the lines between conduct and speech, between criminal law and the First Amendment, and between constitutional avoidance and judicial ability to redraft a statute. The Deputy Solicitor General argued that the statutory provision was not aimed at speech and did not encompass "substantial amounts of it," and if it did, courts could remedy those situations with as-applied challenges rather than the "last resort remedy of overbreadth invalidation." Arguing for the Respondent, who had been convicted of two counts of the crime, Mark Fleming contended that the words of the statute — "encourages or induces" — are much broader than usual criminal words such as "solicitation" or "aiding and abetting." Fleming emphasized that the "even accurate advice" encouraging someone to stay in the United States is criminalized, including a teacher who says to an undocumented student that she should stay and pursue her education.
The argument returned several times to an amicus brief filed by Professor Eugene Volokh in support of neither party. Volokh contended that the Court should recognize that the line between protected abstract advocacy and unprotected solicitation must turn on specificity, and that
because the premise of the solicitation exception is that solicitation is conduct integral to the commission of a crime, only solicitation of criminal conduct can be made criminal consistently with the First Amendment. Solicitation of merely civilly punishable conduct cannot be made criminal, though it can be punished civilly.
(emphasis in original). It was this issue — that the undocumented person could be merely civilly liable while the person who "encourages or induces" the action of staying would be criminally prosecuted — that seemed to cause some consternation amongst the Justices. Justice Alito raised the encouraging suicide hypothetical:
There's a teenager who's -- who has been very seriously bullied and is very depressed and is thinking of committing suicide. The teenager has a gun in his hand. He calls up the one person he thinks is his friend and he says, I'm thinking of killing myself. And the person on the other end of the line says, you've said this before, I'm tired of hearing this from you, you never follow through, you're a coward, why don't you just do it, I encourage you to pull the trigger.
Now is that protected by the First Amendment? Is that speech protected by the First Amendment? Attempting to commit suicide is not a crime.
Nevertheless, whether or not the statute would be used that way, or to prosecute people based only on their speech, Fleming pointed to United States v. Stevens, involving the "crush-porn" statute which the Court found unconstitutional, noting that the "first Amendment does not require us to rely on the grace of the executive branch." Interestingly, after Stevens, Congress did pass a more narrow statute which has been upheld. That experience would surely be on some of the Justices' minds as they consider Chief Justice Roberts's comments about whether the extent to which the statute might be rewritten would need to be "passed by the Senate and House" and "signed by the President," garnering laughter in the courtroom.
Yet Fleming also noted that the government has recently made a "focus" of the enforcement of immigration laws and should the Court uphold the statute, more robust enforcement would likely follow. Given the current controversies around immigration, that would surely also be on the minds of the Justices.
The seemingly persistent question of the type of bias of SCOTUS Justices that should merit recusal has resurfaced again.
Recall that the Code of Conduct for United States Judges does not apply to the Justices of SCOTUS, a situation unchanged by the amended code effective March 2019. In his end-of-year Report in 2012, Chief Justice Roberts seemingly argued that there was no need to specifically include the Justices and addressed (albeit somewhat obliquely) some of the ethical concerns that had arisen. For example, Justice Alito had raised concerns when he appeared at an "event" for the The American Spectator, described as a "right wing magazine" that was behind the attempts to impeach Bill Clinton, that its publisher leads the “Conservative Action Project,” formed after President Obama’s election, to help lobby for conservative legislative priorities, elect Republicans and block President Obama’s judicial appointments. The keynote speaker at the event was then-Rep. Michele Bachmann (R-MN). Additionally, there were concerns regarding Justice Thomas's financial situation, including acceptances of financial gifts and nondisclosure of his wife's income.
Statements and relationships, especially pronounced in these contentious times, also give rise to concerns regarding bias and the recusal remedy. Justice Ginsburg's comments about presidential candidate Donald Trump labeling him a "faker" caused controversy and invited comparisons with the late Justice Scalia's remarks and relationship with a sitting Vice President and his refusal to recuse himself from a case involving the VP which Scalia himself described as "heroic" in an interview. Later, a scholar argued that Justice Kavanaugh should recuse himself in a variety of cases based on Kavanaugh's statements during his confirmation hearing.
Lately, two situations have provoked controversy. The first involves Justices Sotomayor and Ginsburg. It seemingly springs from Justice Sotomayor's dissent from the issuance of a stay in Wolf v. Cook County, on the public charge policy, which we discussed here. The President, in tweets and in a speech in India, criticized Sotomayor — and added Justice Ginsburg (who had not joined Sotomayor's dissent) — calling on them to recuse themselves "on all Trump, or Trump-related matters!" The tweet itself cites Laura Ingraham and FoxNews, and as journalist Matthew Gertz noted, the President's tweet replicates the words of the broadcast, which referenced Ginsburg's 2016 "faker" comment.
The second situation involves Justice Thomas's wife, Ginni Thomas, who reportedly was advising Trump on people in federal employment who should be "purged" as disloyal to the President and who should be hired to replace them. As the New York Times subsequently reported:
Among Ms. Thomas’s top targets have been officials at the National Security Council, the former head of the White House personnel office, Sean Doocey, and other top White House aides. Another target was Jessie K. Liu, who recently left her job as the U.S. attorney for the District of Columbia for a job in the Treasury Department that was later withdrawn by the White House.
Ms. Thomas, a politically active conservative who for nearly seven years has led a group called Groundswell, also successfully lobbied for a role for Kenneth T. Cuccinelli II, the former attorney general of Virginia who is now the acting deputy secretary of homeland security.
The overall effect may be to (further) erode the legitimacy of the courts in general and SCOTUS in particular.
Meanwhile, rereading Canons 4 and 5 of the Code of Conduct for United States Judges and the considerations relating to bias, the appearance of impartiality, and political participation might anchor the conversations about bias.
Monday, February 24, 2020
The United States Supreme Court granted certiorari in Fulton v. City of Philadelphia.
Recall that a unanimous panel of the Third Circuit affirmed the district court's denial of a preliminary injunction against Philadelphia for stopping its referral of foster children to organizations that discriminate on the basis of sexual orientation in their certification of foster parents. Much of the litigation centers on Catholic Social Services (CSS) which will not certify same-sex couples, even those who are legally married to each other, as foster parents. Writing for the panel, Judge Thomas Ambro wrote that the Free Exercise Clause does not relieve one from compliance with a neutral law of general applicability, which the court found the nondiscrimination law to be. Unlike Masterpiece Cakeshop Ltd. v. Colorado Civil Rights Commission and Church of Lukumi Babalu Aye, Inc. v. Hialeah (1993), there was no hostility towards religion evinced in the case. As the court stated:
CSS’s theme devolves to this: the City is targeting CSS because it discriminates against same-sex couples; CSS is discriminating against same-sex couples because of its religious beliefs; therefore the City is targeting CSS for its religious beliefs. But this syllogism is as flawed as it is dangerous. It runs directly counter to the premise of [Employment Division v. ] Smith  that, while religious belief is always protected, religiously motivated conduct enjoys no special protections or exemption from general, neutrally applied legal requirements. That CSS’s conduct springs from sincerely held and strongly felt religious beliefs does not imply that the City’s desire to regulate that conduct springs from antipathy to those beliefs. If all comment on religiously motivated conduct by those enforcing neutral, generally applicable laws against discrimination is construed as ill will against the religious belief itself, then Smith is a dead letter, and the nation’s civil rights laws might be as well. As the Intervenors rightly state, the “fact that CSS’s non- compliance with the City’s non-discrimination requirements is based on its religious beliefs does not mean that the City’s enforcement of its requirements constitutes anti-religious hostility.”
The litigation attracted much attention and the grant of certiorari may indicate that some of the Justices are willing to overturn Smith or to extend the holding of Masterpiece Cakeshop.
Dissenting from the grant of a stay in Wolf v. Cook County, Illinois, involving the controversial "public charge" immigration rule of the Trump Administration, Justice Sotomayor wrote that the Court has been "too quick" to grant the United States government's requests for stays especially as compared to not granting stays in other circumstances, including executions. Importantly, the stay at issue was not related to a nationwide injunction:
Its public-charge rule is set to go into effect in 49 of 50 States next week. The Seventh Circuit is set to consider the Illinois-specific injunction next week as well, with a decision to follow shortly thereafter. And the Government is unable to articulate how many cases—if any—this narrow injunction would affect in the meantime. In sum, the Government’s only claimed hardship is that it must enforce an existing interpretation of an immigration rule in one State—just as it has done for the past 20 years—while an updated version of the rule takes effect in the remaining 49. The Government has not quantified or explained any bur- dens that would arise from this state of the world. Indeed, until this Court granted relief in the New York cases, the Government itself did not consider this Illinois-specific harm serious enough to warrant asking this Court for relief.
These facts—all of which undermine the Government’s assertion of irreparable harm—show two things, one about the Government’s conduct and one about this Court’s own. First, the Government has come to treat “th[e] exceptional mechanism” of stay relief “as a new normal.” Barr v. East Bay Sanctuary Covenant, 588 U. S. ___, ___ (2019) (SOTOMAYOR, J., dissenting from grant of stay) (slip op., at 5). Claiming one emergency after another, the Government has recently sought stays in an unprecedented number of cases, demanding immediate attention and consuming lim- ited Court resources in each. And with each successive application, of course, its cries of urgency ring increasingly hollow. Indeed, its behavior relating to the public-charge rule in particular shows how much its own definition of ir- reparable harm has shifted. Having first sought a stay in the New York cases based, in large part, on the purported harm created by a nationwide injunction, it now disclaims that rationale and insists that the harm is its temporary inability to enforce its goals in one State.
Second, this Court is partly to blame for the breakdown in the appellate process. That is because the Court—in this case, the New York cases, and many others—has been all too quick to grant the Government’s “reflexiv[e]” requests. Ibid. But make no mistake: Such a shift in the Court’s own behavior comes at a cost.
After discussing the extensive time and resources that stay applications involve, Justice Sotomayor continued:
Perhaps most troublingly, the Court’s recent behavior on stay applications has benefited one litigant over all others. This Court often permits executions—where the risk of irreparable harm is the loss of life—to proceed, justifying many of those decisions on purported failures “to raise any potentially meritorious claims in a timely manner.” Murphy v. Collier, 587 U. S. ___, ___ (2019) (second statement of KAVANAUGH, J.) (slip op., at 4); see also id., at ___ (ALITO, J., joined by THOMAS and GORSUCH, JJ., dissenting from grant of stay) (slip op., at 6) (“When courts do not have ad- equate time to consider a claim, the decisionmaking process may be compromised”); cf. Dunn v. Ray, 586 U. S. ___ (2019) (overturning the grant of a stay of execution). Yet the Court’s concerns over quick decisions wither when prodded by the Government in far less compelling circumstances— where the Government itself chose to wait to seek relief, and where its claimed harm is continuation of a 20-year status quo in one State. I fear that this disparity in treatment erodes the fair and balanced decisionmaking process that this Court must strive to protect.
In brief, Justice Sotomayor has argued that some of her colleagues have been biased toward the Trump Administration's petitions.
Thursday, February 20, 2020
Wednesday, February 19, 2020
Eleventh Circuit: Florida Law Mandating Indigent Voters Pay Fines and Fees Violates Equal Protection Clause
In an extensive opinion in Jones v. Governor of Florida, the Eleventh Circuit found that the Florida legislature's imposition of payment of all fines, fees, and restitution connected with a felony conviction as a necessary precondition for re-enfranchisement violated the Fourteenth Amendment's Equal Protection Clause.
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 that in October 2019, United States District Judge Robert Hinkle of the Northern District of Florida held that the Florida statute requiring payment of fines, fees, and costs in order for a person convicted of a felony to have their voting rights restored is unconstitutional and should be enjoined, providing that persons affected should have the opportunity to prove their inability to pay.
The Eleventh's Circuit per curiam opinion of 78 pages concluded that the statute's requirement of payment of "legal financial obligations" (known as LFO) could not be sustained under heightened scrutiny. While wealth classifications in equal protection do not generally merit heightened scrutiny, the Eleventh Circuit noted that
But the Supreme Court has told us that wealth classifications require more searching review in at least two discrete areas: the administration of criminal justice and access to the franchise. M.L.B. [ v. S.L.J.], 519 U.S. at 123  (“[O]ur cases solidly establish two exceptions to that general rule [of rational basis for wealth classifications]. The basic right to participate in political processes as voters and candidates cannot be limited to those who can pay for a license. Nor may access to judicial processes in cases criminal or ‘quasi criminal in nature’ turn on ability to pay.” (citations omitted)). Because Florida’s re-enfranchisement scheme directly implicates wealth discrimination both in the administration of criminal justice and in access to the franchise, we are obliged to apply some form of heightened scrutiny. Florida has implemented a wealth classification that punishes those genuinely unable to pay fees, fines, and restitution more harshly than those able to pay—that is, it punishes more harshly solely on account of wealth—and it does so by withholding access to the franchise. The observation that Florida may strip the right to vote from all felons forever does not dictate that rational basis review is proper in this case. To the contrary, settled Supreme Court precedent instructs us to employ heightened scrutiny where the State has chosen to “open the door” to alleviate punishment for some, but mandates that punishment continue for others, solely on account of wealth.
The Supreme Court has also determined that a state may not extend punishment on account of inability to pay fines or fees. See Bearden, 461 U.S. at 672–73 (holding that a state may not revoke probation—thereby extending a prison term—based on the failure to pay a fine the defendant is unable, through no fault of his own, to pay); Tate, 401 U.S. at 399 (holding that a state cannot imprison under a fine-only statute on the basis that an indigent defendant cannot pay a fine); Williams, 399 U.S. at 240–41 (holding that a period of imprisonment cannot be extended beyond the statutory maximum on the basis that an indigent cannot pay a fine).
For the Eleventh Circuit, disenfranchisement is clearly punishment, and also clearly a "continuing form of punishment." (emphasis in original). The Eleventh Circuit acknowledged that while felon disenfranchisment schemes are generally only subject to rational basis review, here, the long and short of it is that:
once a state provides an avenue to ending the punishment of disenfranchisement—as the voters of Florida plainly did—it must do so consonant with the principles of equal protection and it may not erect a wealth barrier absent a justification sufficient to overcome heightened scrutiny.
The court then applied the form heightened scrutiny from Bearden v. Georgia (1983) including its four considerations: (1) “the nature of the individual interest affected”; (2) “the extent to which it is affected”; (3) “the rationality of the connection between legislative means and purpose”; and (4) “the existence of alternative means for effectuating the purpose.” The court rather expeditiously analyzed the individual's interests as great, the state's interests as minor, and noted the lack of realistic alternatives.
Further, the court rejected Florida's argument that the plaintiffs must demonstrate discriminatory intent:
This is a wealth discrimination case. And the Supreme Court has squarely held that [Washington v.] Davis’s intent requirement is not applicable in wealth discrimination cases. See M.L.B., 519 U.S. at 126–27 (rejecting, in the context of a wealth discrimination claim, the argument that Washington v. Davis requires proof of discriminatory intent).
The Eleventh Circuit opinion concluded that although to the "extent a felon can pay LFOs, he or she 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."
[image: Florida vote on Amendment 4 via]
February 19, 2020 in Criminal Procedure, Current Affairs, Elections and Voting, Equal Protection, Fourteenth Amendment, Fundamental Rights, Opinion Analysis, Race, Recent Cases | Permalink | Comments (0)
Josh Blackman, arguing at WaPo, says yes, pointing to the Vesting Clause and early history; Donald Ayer, arguing in The Atlantic, suggests no, pointing to post-Watergate reforms that created independence at DOJ. Here's PolitiFact on the question, from October last year.
Tuesday, February 18, 2020
The D.C. Circuit last week ruled that HHS Secretary Azar's approval of Arkansas's proposed work required for Medicaid recipients was arbitrary and capricious in violation of the Administrative Procedure Act. The ruling vacates the Secretary's approval and means that the work requirements can't move forward, at least unless and until the Secretary provides an explanation for authorization that's consistent with the Medicaid Act.
We last posted on this case (and a similar case out of Kentucky) here. (After the district court ruled against Kentucky's approval, that state dropped its program and moved for voluntary dismissal.)
The case arose when Arkansas sought HHS approval for a work-requirement demonstration project for its Medicaid program. The project would mean that Medicaid recipients in the state would have to work, with some exceptions, in order to continue to receive Medicaid.
HHS Secretary Azar approved the project. State residents sued, arguing that the approval was arbitrary and capricious in violation of the APA. The district court agreed, and last week the D.C. Circuit affirmed.
Like the district court, the circuit court said that Secretary Azar's explanation for approving the project didn't square with the purpose of Medicaid, to provide medical assistance. Here's the long and short of it:
Instead of analyzing whether the demonstration would promote the objective of providing coverage, the Secretary identified three alternative objectives: "whether the demonstration as amended was likely to assist in improving health outcomes; whether it would address behavioral and social factor that influence health outcomes; and whether it would incentivize beneficiaries to engage in their own health care and achieve better health outcomes." These three alternative objectives all point to better health outcomes as the objective of Medicaid, but that alternative objective lacks textual support. Indeed, the statute makes no mention of that objective.
While furnishing health care coverage and better health outcomes may be connected goals, the text specifically addresses only coverage. . . . That means that Congress selected to achieve the objectives of Medicaid was to provide health care coverage to populations that otherwise could not afford it.
Monday, February 17, 2020
Here's the letter that's getting so much attention. And here's the gist:
Although there are times when political leadership appropriately weighs in on individual prosecutions, it is unheard of for the Department's top leaders to overrule line prosecutors, who are following established policies, in order to give preferential treatment to a close associate of the President, as Attorney General Barr did in the Stone case. It is even more outrageous for the Attorney General to intervene as he did here--after the President publicly condemned the sentencing recommendation that line prosecutors had already filed in court.
Such behavior is a grave threat to the fair administration of justice.
Tuesday, February 11, 2020
The Department of Justice yesterday filed three separate lawsuits seeking to halt various immigration-related and sanctuary policies in California, New Jersey, and King County, Washington.
The three suits are directed as different policies, as so plead slightly different violations, but they all plead some form of federal supremacy and preemption in immigration policy.
In the California case, DOJ takes on California's ban on the operation of private detention facilities in the state. In short, DOJ says that "California, of course, is free to decide that it will no longer use private detention facilities for its state prisoners and detainees. But it cannot dictate that choice for the Federal Government, especially in a manner that discriminates against the Federal Government and those with whom it contracts." Here's the complaint; here's the motion for a preliminary and permanent injunction.
In the King County case, DOJ seeks to halt a local order that closes the airport for the "deportation of immigration detainees (except for federal government aircraft), to the maximum extent permitted by applicable law." Here's the complaint.
Finally, in the New Jersey case, DOJ takes on a law enforcement directive that limits state and local cooperation with "federal immigration authorities." Here's the complaint.
New York yesterday sued Homeland Security officials for dropping the state from the Customs and Border Patrol's Trusted Traveler program in retribution for the state adopting its Green Light Law. That Law allows unauthorized aliens to get a drivers license in the state, and, in order to facilitate that, prohibits state officials from sharing an applicant's personal information from the DMV database with federal immigration authorities, except where disclosure is pursuant to a lawful court order or judicial warrant.
New York argues in that CBP's move violates the "equal state sovereignty" principle in the Tenth Amendment; that it's unduly coercive in violation of the Tenth Amendment; that it is wholly irrational in violation of due process; and that it violates the Administrative Procedure Act (for lack of notice-and-comment rulemaking, for being arbitrary and capricious, and for violating federal law).
On that last point--violating federal law--New York contends that the move violates the Intelligence Reform and Terrorism Prevention Act of 2004 and implementing regulations. That's because the IRTPA directs the Secretary to "ensure that the international trusted traveler program includes as many participants as practicable," yet CBP's move takes millions of New Yorkers out of the program. Moreover, nothing in the program requires applicants to submit state drivers license information, and CBP can get any information they need to run background checks from other state sources, which New York readily shares with the FBI. In other words: CBP doesn't need information from New York's DMV database.
The complaint asks the court to declare CBP's move unconstitutional and in violation of the APA, and to enjoin enforcement of it.
Friday, February 7, 2020
The D.C. Circuit ruled today that 215 Members of Congress who brought a suit against President Trump for violations of the Foreign Emoluments Clause lacked standing to sue. As a result, the court ordered the case dismissed.
The ruling is a significant victory for President Trump. But it wasn't a ruling on the merits, and other Emoluments Clause cases are still pending against the President in two other circuits.
We last posted on the case here. In short, Members argued that President Trump failed to gain congressional approval and thus violated the Foreign Emoluments Clause for taking money from foreign governments for stays and services at his properties. President Trump moved to dismiss for lack of standing, among other reasons. The district court denied the motion; the D.C. Circuit today reversed.
The ruling was concise. The court simply held that the case was governed by Raines v. Byrd, in which the Supreme Court held that Members of Congress lacked standing to challenge the Line Item Veto Act. Here's how the D.C. Circuit applied Raines:
This case is really no different from Raines. The Members were not singled out--their alleged injury is shared by the 320 members of the Congress who did not join this lawsuit--and their claim is based entirely on the loss of political power. . . .
The Supreme Court's recent summary reading of Raines that "individual members" of the Congress "lack standing to assert the institutional interests of a legislature" in the same way "a single House of a bicameral legislature lacks capacity to assert interests belonging to the legislature as a whole," Virginia House of Delegates v. Bethune-Hill, puts paid to any doubt regarding the Members' lack of standing.
The plaintiffs can appeal to the full D.C. Circuit and to the Supreme Court.
Check out Adam Entous's and Evan Osnos's piece in The New Yorker, Qassem Suleimani and How Nations Decide to Kill. Here's from the piece:
The President's dismissal of the question of legality [of Suleimani's killing] betrayed a grim truth: a state's decision to kill hinges less on definitive matters of law than on a set of highly maleable political, moral, and visceral considerations. In the case of Suleimani, Trump's order was the culmination of a grand strategic gamble to change the Middle East, and the opening of a potentially harrowing new front in the use of assassination.
Thursday, January 23, 2020
The Court heard oral arguments in Espinoza v. Montana Department of Revenue regarding a state tax credit scheme for student scholarships as violating the First Amendment's religion clauses and the equal protection clause.
Under the original Tax Credit Program, the law provided a taxpayer a dollar-for-dollar tax credit based on the taxpayer’s donation to a Student Scholarship Organization. However, Montana has a constitutional provision, Art. X §6, which prohibits aid to sectarian schools, so the department of revenue added "Rule 1" to the state tax credit scheme excluding from the definition of "qualified education provider" eligible under the scheme "a church, school, academy, seminary, college, university, literary or scientific institution, or any other sectarian institution owned or controlled in whole or in part by any church, religious sect, or denomination." Parents challenged the constitutionality of Rule 1, but when the litigation reached the Montana Supreme Court, it held that the Tax Credit Program was unconstitutional under Art. X §6 and therefore it did not need to reach the issue regarding Rule 1:
Having concluded the Tax Credit Program violates Article X, Section 6, it is not necessary to consider federal precedent interpreting the First Amendment’s less-restrictive Establishment Clause. Conversely, however, an overly-broad analysis of Article X, Section 6, could implicate free exercise concerns. Although there may be a case where an indirect payment constitutes “aid” under Article X, Section 6, but where prohibiting the aid would violate the Free Exercise Clause, this is not one of those cases. We recognize we can only close the “room for play” between the joints of the Establishment and Free Exercise Clauses to a certain extent before our interpretation of one violates the other.
In the oral argument, Justice Ginsberg characterized the option exercised by the Montana Supreme Court as leveling down: "When a differential is challenged, the court inspecting the state law can level up or level down. And here it leveled down." (This "leveling down" approach occurred in Justice Ginsburg's opinion for the Court in Sessions v. Santana-Morales (2017)). And here that leveling down effected questions of standing which troubled Justices Ginsburg, Sotomayor, and Kagan in their early questions to the attorney for the petitioners — the parents and original plaintiffs — who are "three levels removed" from any injury as Sotmayor stated.
The Montana Supreme Court assumed center stage at times, with Justice Alito for example questioning not simply whether the court was wrong but whether it was discriminatory:
isn't the crucial question why the state court did what it did?
If it did what it did for an unconstitutionally discriminatory reason, then there's a problem under Village of Arlington Heights.
So I'll give you an example. The state legislature sets up a scholarship fund, and after a while, people look at the – the recipients of the scholarships, and some people say: Wow, these are mostly going to blacks and we don't like that and that's contrary to state law. So the state supreme court says: Okay,that discrimination is -- we're going to strike down the whole thing.
Is that constitutional?
The attorney for Montana, Adam Unikowsky rejected "the race analogy" stating that "we just don't think that race and religion are identical for all constitutional reasons."
Justice Breyer explained, "what he's saying is that, look, the court took the case in the Prince Edward County thing -- " or "the equivalent and said they couldn't do that. They can't shut down all the schools, even though the Constitution they didn't say had a right and so that's the similarity."
This question of the race-religion analogy persisted, with the motivation behind the Montana state constitutional provision, often known as a Blaine Amendment, being "rooted in -- in grotesque religious bigotry against Catholics," as Justice Kavanaugh phrased it. Justice Kagan seemingly rejected the notion that the court's striking down the entire program must be motivated by animus towards religion:
And I can think of many reasons why you would strike down the whole program that have nothing to do with animus toward religion. You might actually think that funding religion imposes costs and burdens on religious institutions themselves. You might think that taxpayers have conscientious objections to funding religion. You might think that funding religion creates divisiveness and conflict within a society, and that for all those reasons, funding religious activity is not a good idea and that you would rather level down and fund no comparable activity, whether religious or otherwise, than fund both. Now, none of those things have anything to do with animus towards religion . . . .
Yet soon after, Chief Justice Roberts returned to the race analogy. Later, Justice Breyer would ask:
can we--can you or could I say this: Yes, race is different from religion. Why? There is no Establishment Clause in regard to race.
The specific doctrinal arguments revolve around the extension of Trinity Lutheran Church of Columbia, Mo. v. Comer, decided in 2017, involving Missouri's state constitutional Blaine Amendment and the denial of funds to a church school playground. And more deeply, the "play in the joints" notion from Locke v. Davey — which was itself divisive in Trinity Lutheran — is implicated. At stake is the possibility that Free Exercise Clause will now overwhelm any anti-Establishment concerns.
January 23, 2020 in Courts and Judging, Equal Protection, Establishment Clause, Federalism, First Amendment, Free Exercise Clause, Fundamental Rights, Oral Argument Analysis, Race, Religion | Permalink | Comments (0)
Tuesday, January 21, 2020
The Office of Legal Counsel opined this weekend that House committees investigating articles of impeachment last fall against President Trump lacked legal authority to issue subpoenas to administration officials.
The opinion, dated January 19, appears to attempt to provide legal bases to President Trump's defenders in the Senate, who argue that the administration's categorical decision to ignore those subpoenas did not constitute obstruction of Congress (but instead was based on legal reasons why the subpoenas themselves were invalid).
The OLC memo is not the law, however; it's merely an opinion. Still, it gives President Trump's defenders legal arguments why his non-cooperation did not constitute obstruction.
(OLC's reasoning is quite formalistic--characteristic of this administration when arguing over congressional authority to investigate anything. For a different take--one that recognizes that there's not always a bright line between Congress's powers of oversight and its power of impeachment--check out this analysis by the Congressional Research Service.)
In short, OLC reasoned this way:
(1) Speaker Pelosi announced on September 24, 2019, that "the House of Representatives is moving forward with an official impeachment inquiry;"
(2) that announcement did not legally authorize an actual impeachment inquiry, because the full House didn't vote to authorize such an inquiry;
(3) House committees nevertheless issued subpoenas after September 24 under their impeachment-investigation authority and their general investigative and oversight authority;
(4) those subpoenas could not have been issued validly under the committees' impeachment authority, because, as in (2), there was no legally authorized impeachment inquiry;
(5) when the House came around to authorize an impeachment inquiry, it didn't ratify the earlier-issued subpoenas, so they are still invalid; and
(6) the committees lacked authority to issue the subpoenas under their general investigative and oversight authorities.
The Supreme Court issued a one-sentence order today denying a motion by Obamacare defenders to expedite review of the Fifth Circuit's ruling last month holding the individual mandate unconstitutional.
Recall that the Fifth Circuit ruled the individual mandate unconstitutional (because Congress zeroed out the penalty), but remanded the case to determine whether the mandate is severable from the rest of the Act--and therefore whether any other portions of the Act can stand. The district court previously ruled that the mandate was not severable, and that the entire Act must fall.
The Court's order means that the Court won't rule on the case until after the 2020 presidential election, if at all.
Monday, January 20, 2020
The Ninth Circuit ruled on Friday that a media plaintiff had a First Amendment right to access nonconfidential civil complaints, and that one court policy violated that right, where another court policy didn't. The ruling sets a test and clarifies the law in the Ninth Circuit.
The case, Courthouse News Service v. Planet, arose when CNS challenged the process of releasing nonconfidential complaints to the press in Ventura County Superior Court. That process, dubbed "no access before process," meant that the court put newly filed civil complaints through a seven-step administrative process before releasing them to the media. That could take a couple days, so CNS sued, seeking immediate access. (Venture County doesn't use electronic filing; it's all paper.)
As the case worked its way through the federal courts, Ventura County changed its practice to a "scanning policy." Under the scanning policy, the court scanned complaints and made them available the same day (in most cases) on court computers. CNS still wanted immediate access, however, so the case moved on.
The Ninth Circuit said that CNS has a qualified First Amendment right of access to newly filed, nonconfidential civil complaints, and that the "no access before process" violated it, while the "scanning policy" didn't. The Ninth Circuit held that courts could adopt reasonable restrictions on access resembling time, place, and manner regulations. These could result in incidental delays in access, so long as they are content-neutral, narrowly tailored and necessary to serve the court's important interest in the fair and orderly administration of justice. Or: "Ventura County must demonstrate first that there is a 'substantial probability' that its interest in the fair and orderly administration of justice would be impaired by immediate access, and second, that no reasonable alternatives exist to 'adequately protect' that government interest."
As to the "no access before process" policy, the court said that it resulted in significant delays, but didn't serve (and in fact were entirely unrelated to) the stated interests in privacy and confidentiality, complying with accounting protocols, controlling quality and accuracy, promoting efficient court administration, or promoting the integrity of court records. It also said that the policy "caused far greater delays than were necessary to protect [these interests]."
As to the scanning policy, the court said that it directly related to the court's asserted interests and that, after the court changed its filing hours, the policy resulted in "near perfect" same-day access to the complaints. (Before the court changed its filing hours, there wasn't near perfect same-day access, but the Ninth Circuit gave the court a pass, because it faced resource constraints.)
The ruling leaves the current scanning policy in place.
Judge Smith concurred in part, arguing that the majority wrongly applied strict scrutiny, and instead should have applied "reasonable time, place and manner restrictions."
Thursday, January 16, 2020
In its Report issued today, the United States Government Accountability Office found that the Executive wrongfully withheld funds Congress appropriated to Ukraine.
The Report begins:
Office of Management and Budget—Withholding of Ukraine Security Assistance
B-331564 January 16, 2020
In the summer of 2019, the Office of Management and Budget (OMB) withheld from obligation funds appropriated to the Department of Defense (DOD) for security assistance to Ukraine. In order to withhold the funds, OMB issued a series of nine apportionment schedules with footnotes that made all unobligated balances unavailable for obligation.
Faithful execution of the law does not permit the President to substitute his own policy priorities for those that Congress has enacted into law. OMB withheld funds for a policy reason, which is not permitted under the Impoundment Control Act (ICA). The withholding was not a programmatic delay. Therefore, we conclude that OMB violated the ICA.
The Report explains the constitutional and statutory frameworks, including the ICA, thusly:
The Constitution specifically vests Congress with the power of the purse, providing that “No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law.” U.S. Const. art. I, § 9, cl. 7. The Constitution also vests all legislative powers in Congress and sets forth the procedures of bicameralism and presentment, through which the President may accept or veto a bill passed by both Houses of Congress, and Congress may subsequently override a presidential veto. Id., art. I, § 7, cl. 2, 3. The President is not vested with the power to ignore or amend any such duly enacted law. See Clinton v. City of New York, 524 U.S. 417, 438 (1998) (the Constitution does not authorize the President “to enact, to amend, or to repeal statutes”). Instead, he must “faithfully execute” the law as Congress enacts it. U.S. Const., art. II, § 3.
An appropriations act is a law like any other; therefore, unless Congress has enacted a law providing otherwise, the President must take care to ensure that appropriations are prudently obligated during their period of availability. See B-329092, Dec. 12, 2017 (the ICA operates on the premise that the President is required to obligate funds appropriated by Congress, unless otherwise authorized to withhold). In fact, Congress was concerned about the failure to prudently obligate according to its Congressional prerogatives when it enacted and later amended the ICA. See generally, H.R. Rep. No. 100-313, at 66–67 (1987); see also S. Rep. No. 93-688, at 75 (1974) (explaining that the objective was to assure that “the practice of reserving funds does not become a vehicle for furthering Administration policies and priorities at the expense of those decided by Congress”).
The Constitution grants the President no unilateral authority to withhold funds from obligation. See B-135564, July 26, 1973. Instead, Congress has vested the President with strictly circumscribed authority to impound, or withhold, budget authority only in limited circumstances as expressly provided in the ICA. See 2 U.S.C. §§ 681–688. The ICA separates impoundments into two exclusive categories—deferrals and rescissions. The President may temporarily withhold funds from obligation—but not beyond the end of the fiscal year in which the President transmits the special message—by proposing a “deferral.”4 2 U.S.C.§ 684. The President may also seek the permanent cancellation of funds for fiscal policy or other reasons, including the termination of programs for which Congress has provided budget authority, by proposing a “rescission.”5 2 U.S.C. § 683.
In either case, the ICA requires that the President transmit a special message to Congress that includes the amount of budget authority proposed for deferral or rescission and the reason for the proposal. 2 U.S.C. §§ 683–684. These special messages must provide detailed and specific reasoning to justify the withholding, as set out in the ICA. See 2 U.S.C. §§ 683–684; B-237297.4, Feb. 20, 1990 (vague or general assertions are insufficient to justify the withholding of budget authority).
The burden to justify a withholding of budget authority rests with the executive branch.
The Report found that the Executive did not meet that burden.
Obviously, this Report will not end the matter. The security funds to Ukraine are at the core of the impeachment of the President by the House of Representatives; the Articles of Impeachment are being delivered to the Senate for trial. Moreover, the Report itself ends by discussing the problem of the Executive's lack of cooperation:
OMB and State have failed, as of yet, to provide the information we need to fulfill our duties under the ICA regarding potential impoundments of FMF funds. We will continue to pursue this matter and will provide our decision to the Congress after we have received the necessary information.
We consider a reluctance to provide a fulsome response to have constitutional significance. GAO’s role under the ICA—to provide information and legal analysis to Congress as it performs oversight of executive activity—is essential to ensuring respect for and allegiance to Congress’ constitutional power of the purse. All federal officials and employees take an oath to uphold and protect the Constitution and its core tenets, including the congressional power of the purse. We trust that State and OMB will provide the information needed.
Wednesday, January 15, 2020
Judge Peter J. Messitte (D. Md.) entered a preliminary injunction against enforcement of President Trump's executive order that effectively authorized state and local governments to veto federal resettlement of refugees. The ruling, while preliminary, deals a sharp blow to President Trump's effort to empower state and local governments to restrict refugee resettlement. At the same time, it's a significant victory for refugees and the refugee-rights community.
President Trump's EO provides that the federal government "should resettle refugees only in those jurisdictions in which both the State and local governments have consented to receive refugees under the Department of State's Reception and Placement Program." The EO effectively allowed state and local governments to veto resettlement.
The court ruled that this likely violated 8 U.S.C. Sec. 1522, which sets out the "conditions and considerations" for refugee resettlement and assistance programs:
[The statute] speaks in terms of "consulting" and "consultation" between and among the Resettlement Agencies and the State and Local Governments; establishes that the Resettlement Agencies and State and Local Governments must regularly "meet" to "plan and coordinate"; even acknowledges that "maximum consideration" be given to "recommendations" States make to the Federal Government. The challenged Order definitely appears to undermine this arrangement. As to States or Local Governments that refuse to give written consents, there will be no consultation, no meetings with the Resettlement Agencies, not just "recommendations." Those State and Local Governments can simply give or withhold their written consents to the resettlement of refugees within their borders.
The court also held that the EO "appears to run counter to the Refugee Act's stated purpose" and the congressional intent. (A report on the bill from the House Judiciary Committee couldn't have been clearer: "The Committee emphasizes that these requirements [of the act] are not intended to give States and localities any veto power over refugee placement decisions, but rather to ensure their input into the process and to improve their resettlement planning capacity.")
The court also held that individual government officials' enforcement of the EO was likely arbitrary and capricious, and thus invalid, under the Administrative Procedure Act.
The ruling preliminarily prohibits enforcement of the EO. But it also telegraphs the court's conclusion on the merits: the EO is unlawful.