Thursday, May 23, 2019
As anticipated, the Department of Justice has filed a superseding indictment against WikiLeaks founder, Julian Assange.
The 18 count indictment charges 17 violations of the Espionage Act, 18 U.S.C. §793, as well as one count of conspiracy to commit computer intrusion. The factual recitations revolve around Chelsea Manning occurring in 2010; other highly publicized allegations involving President Trump and Hillary Clinton do not make an appearance (and their names are not mentioned in the indictment).
The charges of unauthorized obtaining and receiving of "National Defense Information" (counts 1-8) and unauthorized disclosure of that same national defense information (counts 9-17) raise First Amendment issues.
The argument is — quite simply — that Assange has done nothing different than other journalists who have published government information and should be covered by the same constitutional protections afforded the New York Times in The New York Times v. United States (1971), "The Pentagon Papers" Case.
In Assange's situation, the issue is not prior restraint but criminal liability, but certainly the same principles apply as we previously discussed. (Also consider the documentary on Daniel Ellsburg).
This issue has been brewing for a while. A good primer on the intersection between the Espionage Act and First Amendment protections of a free press, is Stephen Vladeck's 2007 article, Inchoate Liability and the Espionage Act: The Statutory Framework and the Freedom of the Press, 1 Harvard Law & Policy Review 219, available here.
Judge Edgardo Ramos (S.D.N.Y.) rejected President Trump's motion for a preliminary injunction to halt congressional subpoenas directed at Deutsche Bank and Capital One for President Trump's financial records. We previously posted on the case here. The ruling is (another) sharp blow to President Trump and his efforts to block congressional subpoenas for his financial records.
Judge Ramos delivered his opinion from the bench and issued this short order.
The court ruled that President Trump was "highly unlikely" to succeed in his effort to halt the subpoenas. In response to the administration's now-standard (and bold and inventive) refrain in response to all House inquiries, the court said that Congress, indeed, had a "legitimate legislative purpose" in seeking the records. (Congress has broad investigative and oversight authority, cabined only by the loose "legitimate legislative purpose." But the Court has given that phrase an expansive reading, making President Trump's argument extremely tenuous--a last and desperate resort to shield his records from Congress.)
The ruling follows a similar ruling earlier this week from another court and another case in response to President Trump's effort to block a subpoena directed at his accountant, Mazars, for his financial records.
Wednesday, May 22, 2019
The State of New York and a host of other states and cities yesterday filed suit in the Southern District of New York to halt the implementation of President Trump's "conscience protection" regulations for health-care providers.
We posted on the regs here. In short, they require health-care providers and state and local recipients of certain federal funds to permit employees to opt out of providing health services if they have a religious objection to those services.
New York's lawsuit follows San Francisco's, filed earlier this month.
The plaintiffs in the New York case allege that the regs exceed statutory authority, violate federal law, are arbitrary and capricious, and violate the Spending Clause, the separation of powers, and the Establishment Clause.
Plaintiffs focus on the expansive definitions in the new regs that sweep beyond the administration's statutory authority, and HHS's ability under the regs to cut off vast amounts of federal funding to states and local governments who do not comply with the "conscience protections." They allege that they'll be harmed in their ability to enforce their own laws (which, among other things, require health-care providers to provide certain services, irrespective of religious beliefs) and in their receipt of federal funds.
In a bit of what-goes-around-comes-around, the plaintiffs draw on the Court's ruling in NFIB v. Sebelius--the Medicaid expansion portion of the ruling--to argue that the sheer amount of threatened federal funds under the new regs turns the condition on federal funding for state and local governments (compliance with the "conscience protections") from pressure into compulsion, in violation of federalism principles. They also contend that the conditions are vague, and that the administration impermissibly imposed them without prior congressional action in violation of the separation of powers. (This latter point is based on HHS's apparent ability to withhold funds not authorized for withholding under existing federal law.)
The Supreme Court ruled on Monday that a drug manufacturer, in order to escape state-tort failure-to-warn liability, must show that "it fully informed the FDA of the justifications for the warning required by state law and that the FDA, in turn, informed the drug manufacturer that the FDA would not approve changing the drug's label to include that warning." The Court also ruled that this was a legal question for a judge, not an evidentiary (factual) question for the jury.
The ruling clarifies the standard that the Court set for "impossibility" preemption cases ten years ago in Wyeth v. Levine. In that case, the Court held that in order to show that a drug manufacturer could not simultaneously comply with federal and state requirements on drug warning labels--and that federal law therefore preempted state law--the manufacturer had to show "clear evidence" that the FDA would not have approved a change to the drug label (even as state law required it). Lower courts had trouble with the "clear evidence" standard--what it meant, and who (judge or jury) should apply it. Monday's case, Merck Sharp & Dohme Corp. v. Albrecht, clarified things a little.
The issue pits the FDA's authority to approve the contents of drug-label warnings, or to say that a manufacturer cannot include certain warnings, against state tort standards that require warnings in order to avoid failure-to-warn liability. As the Court explained:
The central issue in this case concerns federal preemption, which as relevant here, takes place when it is "impossible for a private party to comply with both state and federal requirements." The state law that we consider is state common law or state statutes that require drug manufacturers to warn drug consumers of the risks associated with drugs. The federal law that we consider is the statutory and regulatory scheme through which the FDA regulates the information that appears on brand-name prescription drug labels.
The Court in Wyeth v. Levine held that a manufacturer had to show "clear evidence" that the FDA would not have approved a warning in order to demonstrate that it couldn't simultaneously comply with federal law (rejecting a warning) and state law (requiring it). The Court on Monday elaborated:
In a case like Wyeth, showing that federal law prohibited the drug manufacturer from adding a warning that would satisfy state law requires the drug manufacturer to show that it fully informed the FDA of the justifications for the warning required by state law and that the FDA, in turn, informed the drug manufacturer that the FDA would not approve changing the drug's label to include that warning.
But the Court said that this isn't a traditional evidentiary or factual standard. Instead, it's a legal question, and it goes to the judge, not the jury. At bottom, then, a judge has to decide "whether the relevant federal and state laws 'irreconcilably conflic[t]."
This could be tough for manufacturers, given FDA labeling options. Under FDA regs there are at least two ways that a manufacturer might add a warning: through the FDA approval process; or through the "changes being effected" ("CBE") process, which allows a manufacturer unilaterally to strengthen a warning when there is "newly acquired information" about the drug (subject to later FDA review and approval). Moreover, the Court has been clear: the manufacturer bears ultimate responsibility for appropriate and sufficient warnings.
In this case, Merck went back and forth with the FDA on adding a warning about atypical femoral fracture to its label for Fosamax, an oral drug that slows the breakdown of old bone cells and thus helps postmenopausal women avoid osteoporotic fractures. Merck added a "precaution" about "low-energy femoral shaft fracture" through the FDA-approval process, but the FDA rejected Merck's request to cross-reference a longer discussion that focused on "the risk of stress fractures associated with Fosamax." (The FDA explained that "[i]dentification of 'stress fractures' may not be clearly related to the atypical subtrochanteric fractures that have been reported in the literature.") Merck added that change itself through the CBE process, but made no changes to the "Precautions" section of the label--the section at issue in this case.
On remand, then, the judge will have to apply the refined Wyeth v. Levine standard to these facts.
Justice Breyer wrote the majority opinion, joined by Justices Ginsburg, Sotomayor, Kagan, and Gorsuch.
Justice Thomas concurred, expressing his "skeptic[ism] that 'physical impossibility' is a proper test for deciding whether a direct conflict exists between federal and state law." Instead, he would look to a "logical contradiction" between the two.
Justice Alito, joined by Chief Justice Roberts and Justice Kavanaugh, concurred in the judgment only. He wrote to emphasize that Congress enacted legislation after Wyeth v. Levine that may bear on the preemption analysis, and to argue that the facts are somewhat more complicated than the majority opinion reflects. (Justice Alito dissented in Wyeth v. Levine. He was joined by Chief Justice Roberts and Justice Scalia.)
Tuesday, May 21, 2019
The Supreme Court ruled on Monday that Crow Tribe off-reservation hunting rights, established pursuant to a 1868 treaty with the United States, didn't expire when Wyoming became a state. The ruling affirms a more recent approach to determining when Native American treaty rights end (or not) upon a territory's statehood. It's also a victory for Tribe member Clayvin Herrera, who was charged and convicted by Wyoming state authorities for hunting in Bighorn National Forest (outside the Crow reservation) in the off-season and without a license.
The case, Herrera v. Wyoming, tested the durability of Crow Tribe members' off-reservation hunting rights (established pursuant to a 1868 treaty with the Untied States) in the wake of Wyoming's statehood. The state claimed that Tribe members no longer had off-reservation hunting rights (and therefore that it could prosecute Herrera for hunting in Bighorn, in Wyoming), because the treaty expired when Wyoming became a state. The Court disagreed.
Justice Sotomayor, joined by Justices Ginsburg, Breyer, Sotomayor, Kagan, and Gorsuch, held that the treaty did not expire upon Wyoming's statehood. The Court rejected its approach to the question in Ward v. Race Horse (1896) in favor of a later approach in Minnesota v. Mille Lacs Band of Chippewa Indians (1999). Race Horse held that treaty-based rights did not survive statehood, because (1) treaty-based hunting rights would mean that the state was not admitted on "equal footing" with existing states (because the state couldn't enforce hunting restrictions within its territory) and (2) there was no evidence in the treaty in that case that Congress intended the treaty right to continue in "perpetuity."
The Court said that Mille Lacs correctly determined that both of those reasons lacked merit. As to the first, "[l]ater decisions showed that States can impose reasonable and nondiscriminatory regulations on an Indian tribe's treaty-based hunting, fishing, and gathering rights on state land when necessary for conservation." Instead of drawing on equal footing, Mille Lacs said that Congress "must clearly express" its intent to abrogate Native American treaty rights. As to the second, Mille Lacs said that the Race Horse standard was too broad, "given that almost any treaty rights--which Congress may unilaterally repudiate--could be described in those terms." While Mille Lacs didn't overturn Race Horse, it severely undermined it.
In short, Mille Lacs
established that the crucial inquiry for treaty termination analysis is whether Congress has expressly abrogated an Indian treaty right or whether a termination point identified in the treaty itself has been satisfied. Statehood is irrelevant to this analysis unless a statehood Act otherwise demonstrates Congress' clear intent to abrogate a treaty, or statehood appears as a termination point in the treaty.
Applying the Mille Lacs standard, the Court ruled that nothing in Wyoming's statehood act showed that Congress intended to end the treaty's hunting rights, or that the Crow Tribe would have understood it this way. The Court rejected Wyoming's argument that such intent was implied ("something that Mille Lacs forbids").
Finally, the Court ruled that Bighorn wasn't "occupied" for the purpose of the treaty (which allows off-reservation hunting only in "unoccupied" lands), because it's "free of residence or settlement by non-Indians." (According to the Court, this is how the Tribe would've understood "occupied" when it signed the treaty.)
The Court also rejected Wyoming's argument that Herrera was precluded from making this argument, because a Crow Tribe member made a similar argument, and lost, in an earlier Tenth Circuit case. The Court held that the law changed (because Mille Lacs came down since that Tenth Circuit ruling), and therefore Herrera's argument wasn't "issue precluded."
Justice Alito, joined by Chief Justice Roberts and Justices Thomas and Kavanaugh, dissented. Justice Alito wrote that the Court's "interpretation of the treaty is debatable and is plainly contrary to [Race Horse], which construed identical language in a closely related treaty." He also argued that Herrera was issued-precluded from raising his argument, because the Tenth Circuit already ruled in the case referenced above.
The Washington Post today reported on a confidential draft memo apparently prepared by the IRS that concludes that the IRS must turn over tax returns to certain congressional committees except if the President asserts executive privilege.
The memo doesn't mention the current spat over President Trump's tax returns between House Ways and Means Committee Chair Richard Neal (who requested the returns) and Treasury Secretary Steven Mnuchin (who refused to release them). But the memo makes clear: Apparently even the IRS thinks that it must turn over President Trump's taxes.
President Trump has not asserted executive privilege over the returns--and he probably couldn't (it doesn't seem to apply). Instead, Mnuchin (rather boldly) wrote to Neal that Neal's request was invalid, and that the IRS wouldn't comply with it, because it lacks a "legitimate legislative purpose."
The confidential draft memo reads:
The IRS discloses returns and return information when authorized or required by section 6103. Congress in its oversight and investigative role could seek to compel by subpoena a refusal to disclose returns or return information requested. The only basis for the agency's refusal to comply with a committee's subpoena would be the invocation of the doctrine of executive privilege.
Further on, the memo notes (correctly) that the statute requiring disclosure upon request "is mandatory, requiring the Secretary to disclose returns and return information requested by the tax writing Chairs." "On its face, the statute does not allow the Secretary to exercise discretion to disclosing the information provided the statutory conditions are met."
The memo also notes that the statute doesn't require the relevant committee chairs to state a reason for their request. "Unlike section 6103(f)(3), subsections (f)(1) and (f)(2) do not require the Ways and Means and Finance Chair of JCT Chief of Staff to include a reason or purpose for the request."
The memo almost certainly doesn't change things between Mnuchin and Neal, however. That's because the memo is only a draft, not (necessarily) the agency's final legal reasoning. It's also because Mnuchin claimed a different reason for not complying with Neal's request: the Committee lacks a "legitimate legislative purpose." So even if the memo reflects actual, current IRS thinking on the agency's obligation to turn over the returns, Congress might still be limited by its oversight and investigative authority--to things that have a "legitimate legislative purpose."
But as we've noted, that a bold and inventive claim with respect to President Trump's tax returns. The Court has given Congress wide berth in exercising its oversight authority. Unless things change at the Court, Neal's request for President Trump's tax returns falls well within it.
A terrific opportunity for "relatively junior scholars (untenured, newly tenured, or prospective professors) in the U.S." working in equality issues.
The Third Annual Equality Law Scholars’ Forum will be held on March 13-14, 2020 at the University of San Francisco School of Law.
Deadlines: Junior scholars are invited to submit abstracts of proposed papers, 3-5 pages in length, by August 1, 2019. Full drafts of papers must be available for circulation to participants by February 28, 2020.
More details over at Feminist Law Professors Blog here.
Monday, May 20, 2019
House Judiciary Committee Jerold Nadler and the Office of Legal Counsel today sparred over whether former White House Counsel Don McGahn enjoys absolute immunity from testimony before Nadler's Committee.
On the one side, OLC argues that "[s]ince the 1970s, [it] has consistently advised that 'the President and his immediate advisers are absolutely immune from testimonial compulsion by a Congressional committee' on matters related to their official duties." According to OLC, this is based in the separation of powers:
The President stands at the head of a co-equal branch of government. Yet allowing Congress to subpoena the President to appear and testify would 'promote a perception that the President is subordinate to Congress, contrary to the Constitution's separation of governmental powers into equal and coordinate branches." . . .
"For the President's absolute immunity to be fully meaningful," we explained, "and for these separation of powers principles to be adequately protected, the President's immediate advisers must likewise have absolute immunity from congressional compulsion to testify about the matters that occur during the course of discharging their official duties." . . .
Recognizing a congressional authority to compel the President's immediate advisers to appear and testify at the times and places of their choosing would interfere directly with the President's ability to faithfully discharge his responsibilities. It would allow congressional committees to "wield their compulsory power to attempt to supervise the President's actions, or to harass those advisers in an effort to influence their conduct, retaliate for actions the committee disliked, or embarrass and weaken the President for partisan gain." And in the case of the President's current advisers, preparing for such examinations would force them to divert time and attention from their duties to the President at the whim of congressional committees. This "would risk significant congressional encroachment on, and interference with, the President's prerogatives and his ability to discharge his duties with the advice and assistance of his closest advisers," ultimate subordinating senior presidential advisers to Congress rather than to the President.
The OLC explained that this absolute immunity was distinct from--and swept more broadly than--executive privilege. It also explained that absolute immunity only applied to the president's immediate advisers, not to appointees whose offices are created by Congress and who need Senate advice and consent.
Counsel to the President Pat Cipollone then wrote to Nadler that McGahn wouldn't testify, based on the OLC memo.
On the other side, Nadler shot to McGahn that the OLC memo "has no support in relevant case law, and its arguments have been flatly rejected by the courts." He also argued that executive privilege doesn't apply (although, to be clear, the OLC cites absolute immunity of close-level presidential advisers, not executive privilege).
Judge Amit Mehta (D.D.C.) rejected President Trump's effort to block a congressional subpoena directed to his accountant for his financial records. Judge Mehta also declined to stay his ruling pending appeal.
Unless President Trump can get immediate relief from the D.C. Circuit, the ruling means that his accountant, Mazars USA LLP, will have to turn over his financial records and related documents of President Trump and his business entities dating back to 2011.
The ruling is a significant defeat for the President, although it's sure to be appealed. In addition to dealing a blow to the President in this case, the ruling sets a standard for the President's more general complaint--lodged in each of his challenges to congressional oversight--that the congressional request lacks a "legitimate legislative purpose." The court's deferential, flexible approach to "legitimate legislative oversight" doesn't bode well for the President in these other challenges.
The case, Trump v. Committee on Oversight and Reform of the U.S. House of Representatives, arose when President Trump sued the Committee to halt its subpoena of financial records from Mazars, some of which dated back before his election. The court today ruled definitively in favor of the Committee.
The court ruled that the Committee asserted "facially valid legislative purposes," and thus had the power to subpoena Mazars:
Without a resolution as a point of reference, the logical starting point for identifying the purpose of the Mazars subpoena is the memorandum to Members of the Oversight Committee written by Chairman Cummings on April 12, 2019. Chairman Cummings penned that Memorandum in anticipation of issuing the subpoena. It is therefore the best evidence of the Committee's purpose. The Memorandum lists four areas of investigation: (1) "whether the President may have engaged in illegal conduct before and during his tenure in office," (2) "whether he has undisclosed conflicts of interest that may impair his ability to make impartial policy decisions," (3) "whether he is complying with the Emoluments Clauses of the Constitution," and (4) "whether he has accurately reported his finances to the Office of Government Ethics and other federal entities." Each of these is a subject "on which legislation could be had."
The court rejected the President's arguments (1) that the Committee is usurping executive and judicial functions ("Just because a congressional investigation has the potential to reveal law violations does not mean such investigation exceeds the legislative function."); (2) that the Committee is improperly investigating private affairs (because the subpoena is valid so long as it is related to a valid legislative purpose, which, as described above, it is); and (3) that the records request isn't "pertinent" (because it is relevant, and serves potential legislation, and because it's not the court's role to say so, anyway).
The court went on to reject the President's motion for a stay pending appeal, ruling, among other things, that he lacked a likelihood of success on the merits of his challenge.
Ninth Circuit Upholds Campaign Contribution, Firearms Ban for Foreign Nationals, Nonimmigrant Visa Holders
The Ninth Circuit last week upheld federal bans on campaign contributions and firearms possession by foreign nationals and nonimmigrant visa holders, respectively, against First and Second Amendment challenges. The ruling keeps the bans in place.
The case tested the federal ban on campaign contributions by foreign nationals. The court held first that Congress had authority impose the ban:
The federal government has the "inherent power as sovereign to control and conduct relations with foreign nations." . . . Thus, where, as here, Congress has made a judgment on a matter of foreign affairs and national security by barring foreign nationals from contributing to our election processes, it retains a broad power to legislate. . . . A prohibition on campaign donations and contributions by foreign nationals is necessary and proper to the exercise of the immigration and foreign relations powers.
The court held next that the ban didn't violate the First Amendment. The court relied on the Court's summary affirmance in Bluman v. FEC, writing that "although '[t]he precedential effect of a summary affirmance extends no further than the precise issues presented and necessarily decided by those actions,' Blumen did decide the precise issue present in this case."
As to the ban on firearm possession by nonimmigrant visa holders, the court acknowledged that there's some ambiguity about whether the law "burdens conduct protected by the Second Amendment" (the first step in the two-step Second Amendment analysis):
Some courts have read the historical right as one afforded only to citizens or those involved in the political community, while others have focused instead on an individual's connection to the United States. Nonimmigrant aliens, like those unlawfully present, are neither citizens nor members of the political community.
Still, the court assumed that the Second Amendment applied and moved to the second step, application of intermediate scrutiny, and upheld the ban:
The government's interest in this case is straightforward. The government's interest is . . . crime control and maintaining public safety. . . .
Further, the statute reasonably serves this important interest. It carves out exceptions for visa holders who are less likely to threaten public safety. . . . We find this tailoring sufficient.
Friday, May 17, 2019
Treasury Secretary Steven Mnuchin wrote today to Ways and Means Committee Chair Richard Neal that the Treasury Department would comply with the Committee's subpoena for President Trump's tax returns.
As he wrote earlier, in response to Neal's request (but not-yet subpoena), Mnuchin wrote that the request "lacks a legitimate legislative purpose, and pursuant to section 6103, the Department is therefore not authorized to disclose the requested returns and return information."
That claim is breathtaking, given Congress's actual vast oversight and investigative authorities.
Section 6103 of the IRC generally provides for keeping tax records confidential, but subsection (f)(1) provides:
Upon written request from the chairman of the Committee on Ways and Means of the House of Representatives . . . the Secretary shall furnish such committee with any return or return information specified in such request, except that any return or return information which can be associated with, or otherwise identify, directly or indirectly, a particular taxpayer shall be furnished to such committee only when sitting in closed executive session unless such taxpayer otherwise consents in writing to such disclosure.
Given the clarity of the language ("shall furnish"), Treasury's position must be that Section 6103 is bound by congressional authority to investigate. And its position as to that authority must be quite cramped--that Congress can only investigate matters that could actually lead to legislation, and that President Trump's tax returns somehow don't fit that bill.
As in his earlier letter, Mnuchin writes that DOJ will follow up with a legal analysis.
Monday, May 13, 2019
The Supreme Court ruled today in Franchise Tax Board v. Hyatt that states enjoy sovereign immunity from private suits in the courts of other states. The sharply divided ruling (5-4, along conventional ideological lines) overruled Nevada v. Hall and significantly extends state sovereign immunity.
The ruling means that states now cannot be sued by private parties in the courts of other states. It's a boon for the states--and a blow to anyone who wants to sue a state in another state's courts--although, as Justice Breyer noted in dissent, states routinely granted immunity to sister states, anyway--but as a matter of comity. Today's ruling constitutionalizes that practice.
The Court's opinion looks to "our constitutional structure" and the "historical evidence showing a widespread preratification understanding that States retained immunity from private suits, both in their own courts and in other courts." It is devoid of textual support--a curiosity, given the majority justices' otherwise focus on text and originalism as principal sources of constitutional construction.
Justice Thomas wrote for the Court, joined by Chief Justice Roberts and Justices Alito, Gorsuch, and Kavanaugh. Justice Thomas wrote that "Hall's determination that the Constitution does not contemplate sovereign immunity for each State in a sister State's courts misreads the historical record and misapprehends the 'implicit ordering of relationships within the federal system necessary to make the Constitution a workable governing charter and to give each provision within that document the full effect intended by the Framers.'" He said that "[i]n short, at the time of the founding, it was well settled that States were immune under both the common law and the law of nations," and that "[t]he founding generation thus took as given that States could not be haled involuntarily before each other's courts." He wrote that the Eleventh Amendment (though not directly applicable to this issue) reaffirmed the earlier understanding that States enjoy immunity.
Justice Breyer dissented, joined by Justices Ginsburg, Kagan, and Sotomayor. Justice Breyer noted that preratification immunity of states was based on comity (that is, grace), not on legal obligation, and that states therefore could withdraw their recognition of another state's immunity "upon notice at any time, without just offense" (Quoting Justice Story in The Santissima Trinidad.) He wrote that Hall correctly concluded that ratification of the Constitution did not alter this comity-based immunity "in any relevant respect." Neither the Eleventh Amendment nor the Full Faith and Credit Clause (nor anything else in the text) required states to grant each other sovereign immunity, and "nothing 'implicit in the Constitution' treats States differently in respect to immunity than international law treats sovereign nations."
At any rate, I can find nothing in the 'plan of the Convention' or elsewhere to suggest that the Constitution converted what had been the customary practice of extending immunity by consent into an absolute federal requirement that no State could withdraw. None of the majority's arguments indicates that the Constitution accomplishes any such transformation.
Justice Breyer also argued that "stare decisis requires us to follow Hall, not overrule it."
The Court denied certiorari to the Ninth Circuit in Dahne v. Richey with a dissenting opinion by Justice Alito, joined by Justices Thomas and Kavanaugh. For the dissenters, the question was whether the First Amendment requires a "prison to entertain a prisoner grievance that contains veiled threats to kill or injure a guard?"
The Ninth Circuit's Memorandum Opinion did not characterize the prisoner's grievance as threatening, but instead stated that it included "rude comments about the guard’s weight, including describing her as “extremely obese." The dissenting opinion from certiorari and the Ninth Circuit opinion both agree that the prison official told the prisoner to rewrite the grievance, which the prisoner did, but did not cure the defects. For the Ninth Circuit, there was a First Amendment violation when the prison official refused to allow the grievance to proceed through the administrative process after the rewrite did not satisfy the official's "sense of propriety." For the Ninth Circuit, this meant that functionally only a grievance that conformed to an official's "personal conception of acceptable content could get meaningful review," which is "the sort of content-based discrimination that runs contrary to First Amendment protections."
But for Alito and his fellow dissenting Justices, the defects in the grievance offended more than a personal sense of propriety. Instead, the dissenters stated the grievance
contained language that may reasonably be construed as a threat. Specifically, the grievance stated: “It is no wonder [why] guards are assaulted and even killed by some prisoners. When guards like this fat Hispanic female guard abuse their position . . . it can make prisoners less civilized than myself to resort to violent behavior in retaliation.”
For the dissenters, even if "a prison must accept grievances containing personal insults of guards, a proposition that is not self-evident, does it follow that prisons must tolerate veiled threats? I doubt it, but if the Court is uncertain, we should grant review in this case."
Perhaps importantly, the Ninth Circuit in this Memorandum Opinion held there was qualified immunity, which could make the grant of review seem less vital. And while it is always precarious to extrapolate from any opinion to others, the dissent her does bring to mind the issues regarding the boundaries of First Amendment protection before the Court in the trademark case of Iancu v. Brunetti argued in April.
Wednesday, May 8, 2019
The House Judiciary Committee just voted to hold AG Barr in contempt of Congress for failing to comply with a Committee subpoena and turn over the full (unredacted) Mueller report and related documents.
The move comes shortly after the White House asserted a protective executive privilege over the subpoenaed material.
The resolution now goes to the full House for a vote.
President Trump today asserted protective executive privilege to prevent the release of the full (unredacted) Mueller report to the House Judiciary Committee.
The assertion is only provisional and temporary, however, in order to give the White House time to make a final determination whether to assert the privilege. The move thus buys time for the White House against the Committee's subpoena and potentially against the Committee's markup on a resolution holding Barr in contempt of Congress.
AG Barr requested the move in this letter to the White House. As Barr explained, "In cases like this where a committee has declined to grant sufficient time to conduct full review, the President may make a protective assertion of the privilege to protect the interests of the Executive Branch pending a final determination about whether to assert the privilege." (Citing this 1996 OLC opinion.)
The Department made this request because, although the subpoenaed materials assuredly include categories of information within the scope of executive privilege, the Committee's abrupt resort to a contempt vote--notwithstanding ongoing negotiations about appropriate accommodations--has not allowed sufficient time for you to consider fully whether to make a conclusive assertion of executive privilege. The Chairman, however, has indicated that he intends to proceed with the markup session scheduled at 10 a.m. today on a resolution recommending a finding of contempt against me for failing to produce the requested materials.
In these circumstances, you may properly assert executive privilege with respect to the entirety of the Department of Justice materials that the Committee has demanded, pending a final decision on the matter.
Tuesday, May 7, 2019
The White House today directed former White House counsel Don McGahn not to turn over documents related to Robert Mueller's investigation to the House Judiciary Committee. The Committee previously issued a subpoena to McGahn for those documents.
Pat Cipollone, counsel to the president, wrote to McGahn's attorney that "the records remain subject to the control of the White House for all purposes," and that they "remain legally protected from disclosure under longstanding constitutional principles, because they implicate significant Executive Branch confidentiality interests and executive privilege." Cipollone wrote that Acting Chief of Staff Mick Mulvaney "directs Mr. McGahn not to produce" them. (Notably absent from the letter is the administration's familiar refrain that the subpoena exceeds congressional authority, because it lacks a "legitimate legislative purpose." But perhaps "longstanding constitutional principles" covers that.)
McGahn's attorney, William Burck, then wrote to Chairman Nadler, explaining that McGahn would not comply with the subpoena. "Where co-equal branches of government are making contradictory demands on Mr. McGahn concerning the same set of documents, the appropriate response for Mr. McGahn is to maintain the status quo unless and until the Committee and the Executive Branch can reach an accommodation."
The Ninth Circuit ruled in CFPB v. Seila Law LLC that the Consumer Financial Protection Bureau--with its single head, removable only for cause--did not violate the separation of powers. The case aligns with the en banc D.C. Circuit's ruling in PHH Corporation v. CFPB.
The CFPB has been under constant constitutional attack as a legislative encroachment upon executive authority. (If the president can't fire the head of the CFPB at will, the argument goes, then the head of the CFPB encroaches on the president's (absolute, exclusive, unitary) power to execute the law.) The challenges also take aim at Morrison v. Olson. The Court in that case upheld the independent counsel law against a similar separation-of-power challenge. The case has long been a thorn in the side of unitary executive theorists, with many now arguing that Justice Scalia, the lone dissenter in the case, got it right. Despite the attacks, Morrison v. Olson is still good law.
The court in Seila Law said that the CFPB question is resolved by Humphrey's Executor v. United States and Morrison v. Olson. The court explained that Humphrey's Executor validated a "for cause" removal provision for members of the Federal Trade Commission--"an agency similar in character to the CFPB"--because "the agency exercised mostly quasi-legislative and quasi-judicial power, rather than executive powers."
The Court reasoned that it was permissible for Congress to decide, 'in creating quasi-legislative or quasi-judicial agencies, to require them to act in discharge of their duties independently of executive control.' The for-cause removal restriction at issue there, the Court concluded, was a permissible means of ensuring that the FTC's Commissioners would 'maintain an attitude of independence' from the President's control.
So too with the CFPB:
Like the FTC, the CFPB exercises quasi-legislative and quasi-judicial powers, and Congress could therefore seek to ensure that the agency discharges those responsibilities independently of the President's will. In addition, as the PHH Corp. majority noted, the CFPB acts in part as a financial regulator, a role that has historically been viewed as calling for a measure of independence from Executive Branch control.
The court rejected the argument that the CFPB has more executive power than the FTC in Humphrey's Executor and therefore is a greater intrusion into the president's executive authority. The court said that the Supreme Court has since validated other offices with for-cause removal that have similar executive power (in Morrison and Free Enterprise Fund v. PCAOB).
The court also rejected the argument that the CFPB's single head distinguishes it from the multi-member commission at issue in Humphrey's Executor.
[T]he Supreme Court's decision in Humphrey's Executor did not appear to turn on the fact that the FTC was headed by five Commissioners rather than a single individual. . . . And the Court's subsequent decision in Morrison seems to preclude drawing a constitutional distinction between multi-member and single-individual leadership structures, since the Court in that case upheld a for-cause removal restriction for a prosecutorial entity headed by a single independent counsel.
Monday, May 6, 2019
Treasury Secretary Steven Mnuchin today wrote to House Ways and Means Committee Chair Richard Neal that the Treasury Department would not turn over President Trump's 2013-2018 taxes, as earlier requested by Neal.
Mnuchin argues that Neal's request lacks "a legitimate legislative purpose," a common administration argument in every case where it has declined to comply with a House request or subpoena.
Neal requested the returns pursuant to his authority under 26 U.S.C. Sec. 6103(f), which states,
Upon written request from the chairman of the Committee on Ways and Means of the House of Representatives . . . the Secretary [of Treasury] shall furnish such committee with any return or return information specified in such request, except that any return or return information which can be associated with, or otherwise identify, directly or indirectly, a particular taxpayer shall be furnished to such committee only when sitting in closed executive session unless such taxpayer otherwise consents in writing to such disclosure.
Despite the "shall," Mnuchin writes that Congress's power "is bounded by Congress's authority under the Constitution, and the Supreme Court has held that the Constitution requires that Congressional information demands must reasonably serve a legitimate legislative purpose."
With no small amount of chutzpah, Mnuchin writes that "on the advice of the Department of Justice, I have determined that the Committee's request lacks a legitimate legislative purpose . . . ."
Mnuchin says that a DOJ legal memo is forthcoming.
Here's the Trump Administration's new rule, rolled out in its final version last week, providing religious "conscience protections" for health-care providers who, because of their religious beliefs, decline to provide abortion-related services and training, sterilization, and assisted-suicide related services, among others. The rule provides that health-care institutions could lose federal funding if they fail to enforce the protections.
While the precise impact is now unknowable, the rule will likely affect access to these services and health-care access for the LBGTQ community.