Friday, October 18, 2019

Federal Judge Enjoins Florida's Statute Conditioning Right to Vote on Payment of Finess and Fees

In an opinion in Jones v. DeSantis, 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.

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.

Screen Shot 2019-10-18 at 8.21.23 PMFla. 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."

Judge Hinkle first addressed Florida's motion to dismiss based on lack of standing and motion to abstain, finding them without merit. Judge Hinkle then discussed whether or not Amendment 4 authorized the statute extending the conditions to all restitution, fines, and fees, acknowledging that "the last word will belong to the Florida Supreme Court," on the matter of that interpretation. However, for purposes of the issue of constitutionality at this stage, the judge assumed that " “all terms of sentence” includes fines and restitution, fees even when unrelated to culpability, and amounts even when converted to civil liens, so long as the amounts are included in the sentencing document."

While the court acknowledged that a state can deny persons convicted of a felony the right to vote under the Fourteenth Amendment as construed by the Court in Richardson v. Ramirez (1974), here the state had amended its constitution not to do so, but with an exception for those persons convicted of felonies who could not meet their financial obligations. Thus, the Equal Protection Clause is implicated. On this point, Judge Hinkle found Eleventh Circuit precedent was clear, citing Johnson v. Governor of Florida, 405 F.3d 1214 (11th Cir. 2005) (en banc). The court quotes the en banc court in Johnson stating:

Access to the franchise cannot be made to depend on an individual’s financial resources. Under Florida’s Rules of Executive Clemency, however, the right to vote can still be granted to felons who cannot afford to pay restitution. . . . Because Florida does not deny access to the restoration of the franchise based on ability to pay, we affirm the district court’s grant of summary judgment in favor of the defendants on these claims.

[emphasis in original]. For Judge Hinkle, this is both the "starting point of the analysis of this issue, and pretty much the ending point." 

As support for Johnson and further explication of the standard of review under equal protection doctrine, Judge Hinkle reasoned:

Johnson does not lack Supreme Court support; it is consistent with a series of Supreme Court decisions.

In one, M.L.B. v. S.L.J., 519 U.S. 102 (1996), the Court noted the “general rule” that equal-protection claims based on indigency are subject to only rational-basis review. This is the same general rule on which the Secretary [of State of Florida] places heavy reliance here. But in M.L.B. the Court said there are two exceptions to the general rule. 

The first exception, squarely applicable here, is for claims related to voting.  The Court said, “The basic right to participate in political processes as voters and candidates cannot be limited to those who can pay for a license.”  The Court cited a long line of cases supporting this principle.  In asserting that the Amendment 4 and SB7066 requirement for payment of financial obligations is subject only to highly deferential rational-basis scrutiny, the Secretary ignores this exception.

The second exception is for claims related to criminal or quasi-criminal processes. Cases applying this exception hold that punishment cannot be increased because of a defendant’s inability to pay. See, e.g., Bearden v. Georgia, 461 U.S. 660 (1983) (holding that probation cannot be revoked based on failure to pay an amount the defendant is financially unable to pay). Disenfranchisement of felons has a regulatory component, see, e.g., Trop v. Dulles, 356 U.S. 86, 96-97 (1958), and when so viewed, disenfranchisement is subject only to the first M.L.B. exception, not this second one. But when the purpose of disenfranchisement is to punish, this second exception applies. If, after adoption of Amendment 4, the purported justification for requiring payment of financial obligations is only to ensure that felons pay their “debt to society”—that is, that they are fully punished—this second M.L.B. exception is fully applicable.

Another case applying these principles is Harper v. Virginia State Board of Elections, 383 U.S. 663 (1966), which was cited in both M.L.B. and the Johnson footnote. In Harper the Supreme Court said “[v]oter qualification has no relation to wealth.”  The Court continued, “[w]ealth, like race, creed, or color, is not germane to one’s ability to participate intelligently in the electoral process.”  And the Court added, “[t]o introduce wealth or payment of a fee as a measure of a voter’s qualifications is to introduce a capricious or irrelevant factor.” The Secretary says none of this is true when the voter is a felon, but the Secretary does not explain how a felon’s wealth is more relevant than any other voter’s. And Johnson plainly rejected the Secretary’s proposed distinction.

[some citations omitted]

Judge Hinkle's remedy was not to entirely enjoin the enforcement of the statute. Instead, Florida must follow its procedures and amend them if need be to allow indigent persons to demonstrate their inability to pay any restitution, fines, or fees. Nevertheless, this is a victory for those who have argued that the Florida statute undermined Amendment 4.

[image via]

 

October 18, 2019 in Courts and Judging, Elections and Voting, Equal Protection, Fourteenth Amendment, Fundamental Rights, Opinion Analysis, Standing, State Constitutional Law | Permalink | Comments (0)

Thursday, October 17, 2019

Ninth Circuit Extends Eleventh Amendment Waiver-by-Removal (again)

The Ninth Circuit ruled today in Walden v. Nevada that a state waives its Eleventh Amendment immunity over any federal claims when it removes a case from state to federal court. The court previously ruled that a state waives immunity over only those federal claims that Congress failed to apply to the states by abrogation when a state removes; today's ruling extends that waiver-by-removal rule to all federal claims.

The case arose when Nevada state employees sued the state for violations of the Fair Labor Standards Act in state court. The state removed the case to federal court and moved to dismiss based on state sovereign immunity.

The Ninth Circuit rejected that claim. The court noted that the Supreme Court ruled in Lapides v. Bd. of Regents of Univ. Sys. of Georgia that a state waives Eleventh Amendment immunity when it removes state law claims for which it waived immunity in state court. It further noted that it (the Ninth Circuit) extended Lapides so that a state waives Eleventh Amendment immunity when it removes federal law claims for which Congress validly abrogated state sovereign immunity. Then it said the same reasoning justifies extending waiver-by-removal to any federal claims (congressional abrogation or not). In so ruling, the Court quoted Lapides:

It would seem anomalous or inconsistent for a State both (1) to invoke federal jurisdiction, thereby contending that the "Judicial power of the United States" extends to the case at hand, and (2) to claim Eleventh Amendment immunity, thereby denying that the "Judicial Power of the United States" extends to the case at hand.

The ruling means that the plaintiffs' FLSA case, now in federal court, can move forward.

October 17, 2019 in Cases and Case Materials, Eleventh Amendment, Federalism, News, Opinion Analysis | Permalink | Comments (0)

Saturday, October 12, 2019

Court Strikes President's Reprogramming Federal Funds for Border Wall

Judge David Briones (W.D. Texas) ruled on Friday that President Trump's effort to reprogram federal funds in the name of a "national emergency" to build a border wall exceeded his authority under the Consolidated Appropriations Act of 2019. The ruling further invites the plaintiffs to file for a preliminary injunction to halt the reprogramming.

The ruling deals a substantial blow to President Trump in his effort to shift around money to pay for his border wall. Still, this isn't the end of this case: it'll surely be appealed.

We last posted on these issues here.

The case arose when El Paso County and Border Network for Human Rights sued President Trump to halt reprogramming under his national emergency declaration. Upon declaring the emergency, President Trump ordered the relevant secretaries to reprogram $2.5 billion of Defense Department funds appropriated for Support for Counterdrug Activities under 10 U.S.C. Sec. 284, and $3.6 billion of DOD funds appropriated for "military construction projects" under 10 U.S.C. Sec. 2808. The plaintiffs argued, among other things, that the order violated the 2019 CAA. The court agreed.

The court first ruled that the plaintiffs had standing. It wrote that El Paso was the target location for the new wall, that it suffered a reputational injury (in President Trump's statements about how dangerous it is), and that it suffered economic harm--all because of President Trump's order, and which would be redressed by a favorable ruling. It held that BNHR had standing, too, because it spent significant resources to respond to President Trump's actions that would have gone to support its regular activities. The court ruled that the plaintiffs had standing to sue under Section 2808, because the government took steps to fund the construction of a wall.

As to the CAA, the court held that the reprogramming violates the plain terms of the CAA:

the CAA specifically appropriates $1.375 billion for border-wall expenditures and requires those expenditures to be made on "construction . . . in the Rio Grande Valley Sector" alone. Defendants' funding plan, by contrast, will transfer $6.1 billion of funds appropriated for other more general purposes--military construction, under Section 2808, and counterdrug activities, under Section 284. Their plan therefore flouts the cardinal principle that a specific statute controls a general one and violates the CAA.

In addition, the court said that the proclamation violates Section 739 of the CAA, which provides

None of the funds made available in this or any other appropriations Act may be used to increase . . . funding for a program, project, or activity as proposed in the President's budget request for a fiscal year until such proposed change is subsequently enacted in an appropriation Act, or unless such change is made pursuant to the reprogramming or transfer provisions of this or any other appropriations Act.

The court explained: "Section 739 prohibits Defendants' plan to fund the border wall because the plan is barred by that provision's general rule and the plan does not fall within its exception," because neither Section 2808 nor Section 284 is an appropriations act.

Although the ruling grants summary judgment to the plaintiffs on these issues, it does not grant a preliminary injunction. "Defendants have countered that Plaintiffs cannot obtain equitable relief against the President. The Court has requested additional briefing on this issue and will reserve judgment in this regard for a later date."

In light of the Supreme Court's ruling this summer staying a permanent injunction because the government showed that the plaintiffs had no cause of action to challenge a Section 8005 transfer, the ruling says nothing about the government's Section 8005 authority to reprogram funds for Section 284 counterdrug activities. It also says nothing about reprogramming Treasury Forfeiture Funds.

October 12, 2019 in Cases and Case Materials, Congressional Authority, Executive Authority, News, Opinion Analysis, Separation of Powers, Standing | Permalink | Comments (0)

Friday, October 11, 2019

D.C. Circuit Says House Can Subpoena Mazars for Trump Financial Records

The D.C. Circuit ruled today that the House Committee on Oversight and Reform acted within its powers, and not in violation of the Constitution, when it issued a subpoena to Mazars USA, LLP, for records related to work performed by President Trump and his business entities both before and after he took office.

The ruling deals a sharp blow to President Trump and his efforts to shield his financial records. But the D.C. Circuit probably won't have the last say: this seems destined for the Supreme Court.

We previously posted on the case here and on a related case here.

The case arose when the Committee subpoenaed Mazars for the records. President Trump sued to stop Mazars from releasing them, and the Justice Department filed an amicus brief on the side of the President.

The court flatly rejected the President's novel claims that the subpoena exceeded the Committee's authority and violated the Constitution. In particular, the court held that the subpoena was not an invalid exercise of law-enforcement (as opposed to legislative) power, because the Committee's explanation for the subpoena on its face stated a valid legislative purpose--to inform "multiple laws and legislative proposals under [the Committee's] jurisdiction." Moreover, the court noted that the House actually has pending legislation related to the subpoena, thus underscoring the legislative character of the subpoena, even though this isn't required.

The court held next that the subpoena has a valid legislative purpose. The court wrote that the subpoena could serve ethics and financial disclosure laws that apply to the President.

The court wrote that the subpoena's reach--seeking information before the President was elected and before he even announced his candidacy--fell within Congress's legislative power, because it could consider legislation requiring a President to disclose financial information going back before a President takes office.

Judge Rao dissented. She argued that the subpoena serves only the Committee's interest in determining "whether the President broke the law"; that the Committee can only take up this kind of law-enforcement function in the context of an impeachment; and that because the subpoena was issued outside of an impeachment proceeding, it is therefore invalid:

The majority breaks new ground when it determines Congress is investigating allegations of illegal conduct against the President, yet nonetheless upholds the subpoena as part of the legislative power. The Committee on Oversight and Reform has consistently maintained that it seeks to determine whether the President broke the law, but it has not invoked Congress's impeachment power to support this subpoena. When Congress seeks information about the President's wrongdoing, it does not matter whether the investigation also has a legislative purpose. Investigations of impeachable offenses simply are not, and never have been, within Congress's legislative power. Throughout history, Congress, the President, and the courts have insisted upon maintaining the separation between the legislative and impeachment powers of the House and recognized the gravity and accountability that follow impeachment. Allowing the Committee to issue this subpoena for legislative purposes would turn Congress into a roving inquisition over a co-equal branch of government.

October 11, 2019 in Cases and Case Materials, Congressional Authority, Executive Authority, News, Opinion Analysis, Separation of Powers | Permalink | Comments (0)

Wednesday, October 9, 2019

Daily Read: The Contempt Power of Congress

The practice and the announcement of the White House that it will not cooperate with the House of Representatives Impeachment Inquiry as we discussed here, raises the question of the resources available to Congress to enforce its subpoenas.  And as in so many cases about Congressional matters, there is a Congressional Research Service Report for that: Congressional Subpoenas: Enforcing Executive Branch Compliance, updated March 27, 2019.  

The Report includes this overview:

Congress currently employs an ad hoc combination of methods to combat non-compliance with subpoenas. The two predominant methods rely on the authority and participation of another branch of government. First, the criminal contempt statute permits a single house of Congress to certify a contempt citation to the executive branch for the criminal prosecution of an individual who has willfully refused to comply with a committee subpoena. Once the contempt citation is received, any later prosecution lies within the control of the executive branch. Second, Congress may try to enforce a subpoena by seeking a civil judgment declaring that the recipient is legally obligated to comply. This process of civil enforcement relies on the help of the courts to enforce congressional demands.

Congress has only rarely resorted to either criminal contempt or civil enforcement to combat non- compliance with subpoenas . . . . 

[footnotes omitted].

Of special note later in the Report is a discussion of "detention" of executive branch officials:

Although rare, the inherent contempt power has been used to detain executive branch officials, including for non-compliance with a congressional subpoena. During an 1879 investigation into allegations of maladministration by George F. Seward while a consul general in Shanghai, a House committee issued a subpoena to Seward for relevant documents and testimony.254 When Seward—then an ambassador to China—refused to comply, the House passed a resolution holding him in contempt and directing the Sergeant-at-Arms to take him into custody and bring him before the House. Seward was taken into custody and brought before the House, where he was ultimately released while the House considered impeachment articles.

In another example which gave rise to Marshall v. Gordon [1917], the House adopted a contempt resolution directing the Sergeant-at-Arms to arrest U.S. Attorney Snowden Marshall for an insulting letter sent to a committee chair. The arrest was then made and quickly challenged in federal court, where ultimately the Supreme Court ordered Marshall released. In doing so, the Court reaffirmed the contempt power generally, but concluded that in Marshall’s case the contempt was invalid as “not intrinsic to the right of the House to preserve the means of discharging its legislative duties.” Notably, the Court was silent on whether Marshall’s status as an executive branch official had any impact on the House’s exercise of the power.

Given these examples, and the Supreme Court’s general statements on the reach of the inherent contempt power, it would appear to be within Congress’s power to use inherent contempt to compel executive branch compliance with congressional subpoenas, at least in certain circumstances. But neither the Seward nor Marshall example involved an assertion of executive privilege, meaning that the Court did not need to consider what, if any, constraints that privilege may impose upon Congress’s exercise of its inherent contempt authority.

Moreover, an attempt by Congress to arrest or detain an executive official may carry other risks. There would appear to be a possibility that, if the Sergeant-at-Arms attempted to arrest an executive official, a standoff might occur with executive branch law enforcement tasked with protecting that official. This concern is also applicable in the event that a judicial marshal enforces a judicial order of contempt against an executive official, and perhaps will always be “attendant in high-stakes separation-of-powers controversies.”

[footnotes omitted].

There's a great deal more worth reading in this 45 page Report as what some are calling a "constitutional crisis" unfolds.

CRS Contempt

October 9, 2019 in Congressional Authority, Current Affairs, Executive Authority, Executive Privilege, Political Question Doctrine | Permalink | Comments (0)

Tuesday, October 8, 2019

White House Blasts Impeachment Inquiry, Says it Won't Cooperate

White House Counsel Pat Cipollone sent a scathing letter today to House leadership blasting the impeachment inquiry and stating that the White House won't cooperate. Given White House intransigence so far, it's not clear that the letter will really change anything on the ground.

Cipollone cited two flaws: the process lacks due process protections, and the House has no "legitimate basis" for the inquiry.

As to due process, Cipollone claims that an impeachment inquiry requires due process, and that the House process falls short:

To comply with the Constitution's demands, appropriate procedures would include--at a minimum--the right to see all evidence, to present evidence, to call witnesses, to have counsel present at all hearings, to cross-examine all witnesses, to make objections relating to the examination of witnesses or the admissibility of testimony and evidence, and to respond to evidence and testimony. Likewise, the Committees must provide for the disclosure of all evidence favorable to the President and all evidence bearing on the credibility of witnesses called to testify in the inquiry. The Committees' current procedures provide none of these basic constitutional rights.

Cipollone also complained that the committees' ranking members lack subpoena power, and that "the Committees have also resorted to threats and intimidation against potential Executive Branch witnesses."

The impeachment process, of course, is a nonjusticiable political question under Nixon v. United States. So we don't have the Supreme Court's say-so as to what, if any, measures of due process are required. In the case that Cipollone cites as support for his claim that impeachment requires due process, Judge Hasting's impeachment, Hastings raised similar due process complaints about his trial in the Senate. But in a ruling not cited by Cipollone, the district court ultimately dismissed Hasting's complaint as raising a nonjusticiable political question under Nixon, and therefore did not touch on any process that might be due in an impeachment.

Cipollone's claims don't come in the context of a court case, though, so the political question doctrine doesn't foreclose them. Instead, they may cleverly put House Democrats in an awkward spot. The only practical way that House Democrats can get White House cooperation is to go to court; but if they seek to enforce a subpoena issued in an impeachment inquiry in court, the White House will surely claim that the case is a nonjusticiable political question under Nixon. Regardless of merits of that claim, unless the House can get the courts to enforce their subpoenas, the House will have to base its articles of impeachment only on evidence that it can obtain independent of White House cooperation, and, of course, obstruction. This may make it even more likely (if that's possible) that the House will impeach, but it also may make it even less likely (if that's possible) that the Senate will convict.

As to the lack of a "legitimate basis" for the inquiry, Cipollone argues that President Trump's call to President Zelenskyy "was completely appropriate," that "the President did nothing wrong," and therefore that "there is no basis for an impeachment inquiry." This echoes the familiar (and tenuous) constitutional claim that we've heard from the White House in nearly every congressional investigation--that the House lacks a "legitimate legislative purpose." It also begs the question: the whole purpose of an impeachment inquiry, it seems, is to get more evidence to discover whether there's a basis for going forward with impeachment. The House needs information from the executive branch to help it make that determination.

Cipollone's letter is a stunning rebuke. But in the end, it's not clear that it's much of a game-changer, only because the White House hasn't much cooperated so far, anyway.

October 8, 2019 in Congressional Authority, Courts and Judging, Executive Authority, Jurisdiction of Federal Courts, News, Political Question Doctrine, Separation of Powers | Permalink | Comments (0)

Monday, October 7, 2019

SCOTUS Hears Oral Arguments in Unanimous Jury Case

The United States Supreme Court heard oral arguments in Ramos v. Louisiana involving whether the Sixth Amendment confers a right to a unanimous jury verdict and whether that right is incorporated against the states through the Fourteenth Amendment. Justice Thomas was not on the bench for the argument.

Recall that the issue of which rights in the Bill of Rights are incorporated to the states has received recent attention: in McDonald v. City of Chicago (2010),  a 5-4 Court held that the Second Amendment is incorporated as against the states through the Fourteenth Amendment (with four Justices finding this occurred through the Due Process Clause and Justice Thomas stating the proper vehicle was the Privileges or Immunities Clause).  And just last Term, in Timbs v. Indiana, the United States Supreme Court unanimously concluded that the Excessive Fines Clause of the Eighth Amendment is applicable to the states through the Fourteenth Amendment. 

But embedded in Timbs was a dispute about whether the "right" and the "substance of the right" must be similar, a question that the Court did not address.  That dispute is at the heart of the incorporation doctrine surrounding the right to have a unanimous jury verdict.  Justice Alito explained the problem in footnote 14 of McDonald, after stating in the text that the general rule is that rights "are all to be enforced against the States under the Fourteenth Amendment according to the same standards that protect those personal rights against federal encroachment.”

There is one exception to this general rule. The Court has held that although the Sixth Amendment right to trial by jury requires a unanimous jury verdict in federal criminal trials, it does not require a unanimous jury verdict in state criminal trials. See Apodaca v. Oregon, 406 U. S. 404 (1972).

Webster_County _Nebraska_courthouse_courtroom_3The precedential value of Apodaca, a case in which the Justices split 4-1-4, was at the center of the oral argument, although at times not as central as might be predicted.  The reliance of Louisiana on Apodaca in stare decisis considerations was certainly discussed at length,including the issue of how many inmates would be effected by the Court's ruling.  It was unclear how many persons were currently serving sentences under less than unanimous jury verdicts, although petitioner's counsel stated there were currently 36 cases on direct appeal.

However the Solicitor General of Louisiana largely advanced a different argument. She vigorously argued that the Sixth Amendment should not be read to require unanimous jury verdicts at all — whether or not in the context of incorporation. She stated that "nothing in the text, structure, or history of the Sixth Amendment requires unanimous jury verdicts." There seemed to be little support for this construction, although the Justices and opposing counsel did discuss the differences between unanimity and the "12" requirement which the Court has held is not constitutionally required.

There was little indication the Court was likely to revise its Sixth Amendment jurisprudence. And more indication that the Court would continue its trend of incorporating rights in the Bill of Rights as against the states, which would mean overruling Apodaca.

October 7, 2019 in Criminal Procedure, Due Process (Substantive), Federalism, Fourteenth Amendment, Interpretation, Oral Argument Analysis, Seventh Amendment, Sixth Amendment, Supreme Court (US) | Permalink | Comments (1)

District Court Tosses Trump Suit to Protect Taxes

Judge Victor Marrero (S.D.N.Y.) today dismissed President Trump's lawsuit that sought to halt a state grand jury subpoena issued to Mazars USA for Trump organization financial documents, including the President's tax returns. We posted most recently here.

The ruling deals a blow to President Trump's efforts to protect his tax returns from disclosure, and to halt any state criminal process against him. But it may be temporary: the Second Circuit immediately stayed the ruling pending expedited review; and whatever the Second Circuit says, this case seems destined for the Supreme Court.

The district court ruled that President Trump's suit was barred by Younger abstention, and that his constitutional claim likely failed on the merits.

As to Younger abstention, which requires federal courts to abstain from intervening in pending state court proceedings under certain circumstances, the court said that the grand jury subpoena was part of a pending state criminal proceeding (despite a circuit split on the question), that the state proceeding implicates important state interests, and that the state proceeding affords President Trump plenty of opportunities to raise his constitutional claims. The court rejected the President's claims that the state process was in bad faith or merely designed to harass him, and that the case raised extraordinary circumstances.

As to the underlying merits, which the court addressed "so as to obviate a remand" on President Trump's motion for a preliminary injunction if the Second Circuit overrules the abstention holding, the court flatly rejected the President's claim of absolute presidential immunity from all state criminal processes. The court said that it "cannot square a vision of presidential immunity that would place the President above the law with the text of the Constitution, the historical record, the relevant case law, or even the DOJ Memos on which the President relies most heavily for support." The court, citing Clinton v. Jones, said that the Supreme Court would likely reject the President's absolute, categorical approach to immunity in favor of a functional approach that "take[s] account of various circumstances concerning the appropriateness of a claim of presidential immunity from judicial process relating to a criminal proceeding" and to balance the competing interests in working out the immunity question.

The case now goes to the Second Circuit on an expedited basis. Again: the Second Circuit stayed the district court's ruling, which means that President Trump's federal case challenging the state subpoena is still alive. Whatever happens at the Second Circuit, this case will almost surely go to the Supreme Court.

October 7, 2019 in Cases and Case Materials, Courts and Judging, Executive Authority, Federalism, Jurisdiction of Federal Courts, News, Opinion Analysis | Permalink | Comments (0)

Sunday, October 6, 2019

SCOTUS Terms Begins With LGBTQ Title VII Cases

The United States Supreme Courts 2019 Term begins with oral arguments in three cases that will impact LGBTQ equality.  To be clear, the Court is not considering constitutional law issues.  Instead all three cases involve statutory interpretation of the prohibition of discrimination "because of sex" in Title VII of the 1964 Civil Rights Act, 42 U.S.C. §2000e et. seq.

The two consolidated cases both involve sexual orientation discrimination. In Altitude Express v. Zarda, the Second Circuit en banc held that sexual orientation discrimination constituted a form of discrimination "because of sex" under Title VII, overruling previous Second Circuit decisions, and provoking the dissent of four judges.  Reaching the opposite conclusion, the Eleventh Circuit in Bostock v. Clayton County Board of Commissioners, clung to its previous precedent, first in an unpublished opinion affirming the dismissal of the complaint, and then in a denial of rehearing en banc requested by a member of the court, with two judges issuing a dissenting opinion. 

In deciding whether or not sexual orientation discrimination is included in Title VII's "because of sex" language, the primary precedent for the Court is its unanimous opinion in Oncale v. Sundowner Offshore Services (1998), authored by the late Justice Scalia.  The claim involved same-sex sexual harassment and the Court held:

We see no justification in the statutory language or our precedents for a categorical rule excluding same-sex harassment claims from the coverage of Title VII. As some courts have observed, male-on-male sexual harassment in the workplace was assuredly not the principal evil Congress was concerned with when it enacted Title VII. But statutory prohibitions often go beyond the principal evil to cover reasonably comparable evils, and it is ultimately the provisions of our laws rather than the principal concerns of our legislators by which we are governed. Title VII prohibits “discriminat[ion] . . . because of . . . sex” in the “terms” or “conditions” of employment. Our holding that this includes sexual harassment must extend to sexual harassment of any kind that meets the statutory requirements.

The third case LGBTQ Title VII case to be considered by the Court in the Term's opening days is R.G. & G.R. Harris Funeral Homes v. EEOC.  The Sixth Circuit, in its unanimous panel opinion reversing the district judge, found that discrimination "against employees, either because of their failure to conform to sex stereotypes or their transgender and transitioning status, is illegal under Title VII" under the "because of sex" discrimination prohibition. The court found that the "Funeral Home fired Stephens because she refused to abide by her employer’s stereotypical conception of her sex" and that the religious claim under the Religious Freedom Restoration Act, RFRA, 42 U.S.C. § 2000bb–1, raised by the funeral home's owner failed because "Title VII here is the least restrictive means of furthering its compelling interest in combating and eradicating sex discrimination."

While the Court has not previously decided a case of transgender discrimination under Title VII, the Court's opinion in Price Waterhouse  v. Hopkins (1989) held that sex-stereotyping is included within the prohibition of discrimination "because of sex" under Title VII.  Hopkins is a fractured opinion, and none of the Justices who decided the case remain on the Court.

These statutory interpretation cases will provide an indication of the Court's views on LGBTQ equality, a subject last at the Court in the closely-divided same-sex case Obergefell v. Hodges (2015), decided under the Fourteenth Amendment. Further, these three Title VII cases may illuminate how the Court is considering precedent.

Finally, no matter how the Court decides these Title VII issues, Congress retains ultimately authority. In 2019, the House of Representatives passed "The Equality Act" which would amend the 1964 Civil Rights Act to include prohibitions of discrimination on the basis of sexual orientation and gender identity.  The Senate has yet to take up this legislation.

 

October 6, 2019 in Courts and Judging, Current Affairs, Fourteenth Amendment, Free Exercise Clause, Fundamental Rights, Gender, Religion, Sexual Orientation, Sexuality, Supreme Court (US) | Permalink | Comments (0)

Wednesday, October 2, 2019

District Court Halts Enforcement of California Law Requiring Presidential Candidates to Release Taxes

Judge Morrison C. England, Jr., (E.D. Cal.) granted President Trump's motion for a preliminary injunction yesterday and halted enforcement of California's new requirement that presidential primary candidates file their income tax returns with the state before gaining a place on the primary ballot.

The ruling puts a temporary stop to California's effort to press President Trump to reveal his tax returns.

The case tests California's requirement that candidates in the California primary election for president file their tax returns with the state before the state will list them on the ballot. Here's the measure:

Notwithstanding any other law, the Secretary of State shall not print the name of a candidate for President of the United States on a primary election ballot, unless the candidate, at least 98 days before the presidential primary election, files with the Secretary of State copies of every income tax return the candidate filed with the Internal Revenue Service in the five most recent taxable years.

California said that it adopted the measure in order to help its voters make an informed choice among candidates in the primary election. But it was pretty clearly a blunt effort to force President Trump to file his tax returns, which the state could then make public.

The court ruled that the requirement likely violated the Article II Qualifications Clause, the First Amendment, and the Equal Protection Clause.

As to Qualifications, the court drew on U.S. Term Limits, Inc. v. Thornton, where the Court struck Arkansas's effort to impose term limits on its members of Congress. The Court in Thornton ruled that the state's term limits impermissibly added a qualification to its members of Congress over and above the minimum qualifications set in the Article I Qualifications Clause. Judge England ruled that the same principle applies to a state's additional qualifications over and above the minimums set in the Article II Qualifications Clause, and that California's requirement amounts to just such an additional qualification.

As to the First Amendment, Judge England held that California's requirement amounts to a "severe restriction" on the right to access the ballot, the right to political association, the right to vote, and the right to express political preferences. The court applied strict scrutiny and held that the requirement failed.

Finally, as to equal protection, Judge England held that the requirement impermissibly treated partisan primary candidates differently than independent candidates (who are not subject to the requirement). "The State lacks any valid interest in providing voters with more information about party-backed candidates than independent candidates, especially when such requirements can lead to the exclusion of only major party candidates on the ballot."

October 2, 2019 in Cases and Case Materials, Elections and Voting, Equal Protection, First Amendment, News, Opinion Analysis | Permalink | Comments (0)

Tuesday, October 1, 2019

District Judge Finds Harvard's Affirmative Action Admissions Policy Lawful

In a 130 page opinion in Students for Fair Admissions v. President and Fellows of Harvard College, Judge Allison Burroughs upheld Harvard's admissions policy that includes racial considerations. Although Harvard is a private institution and there is not sufficient state action to invoke the Equal Protection Clause of the Fourteenth Amendment, Judge Burroughs noted that it was "subject to the same standards that the Equal Protection Clause imposes upon state actors for the purposes of a Title VI claim," referencing Title VI of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000d et seq.  As Judge Burroughs stated, " the controlling principles articulated by the Supreme Court in Fisher II reflect the sum of its holdings in cases concerning higher education admissions over the last forty years and now guide the application of Title VI in this case," referencing Fisher v. University of Texas at Austin (2016). 

Applying strict scrutiny, Judge Burroughs first found that Harvard's interest in the educational benefits that flow from student diversity was compelling, concluding that "Harvard's goals are similar in specificity to the goals the Supreme Court found 'concrete and precise' in Fisher II."

On the more controversial issue of narrowly tailored means-chosen, the judge found there was no undue burden on any particular individual and that individuals were considered on a holistic basis. The judge specifically rejected the plaintiff's claim that the university engaged in "racial balancing." As to race-neutral means, the judge rejected the proffered race-neutral methods such as eliminating early action decisions, eliminating preferences for certain applicants (including legacy and children of Harvard employees), and preferences for economically disadvantaged students as not being "workable" methods for actually achieving racial diversity.

Judge Burrough's conclusion is especially noteworthy: she states that while the Harvard admissions policy satisfies strict scrutiny it is not perfect and administrators might benefit from "implicit bias training;" she discusses the language from Fisher II regarding data-collection and the language from Grutter v. Bollinger regarding the duration of affirmative action programs; and she quotes the esteemed author Toni Morrison of the relevance of race and the President of Harvard, Ruth Simmons on the the importance of diversity.

The plaintiff organization has proved itself determined to litigate this issue and an appeal is likely. But this thorough opinion — with more than 60 pages of factual discussion — will make its reversal a formidable task absent doctrinal changes.

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October 1, 2019 in Affirmative Action, Equal Protection, Opinion Analysis | Permalink | Comments (0)

Friday, September 27, 2019

Does Congress Have More Investigation Power in Impeachment Proceedings?

Three House committees together issued the first subpoena under the House's impeachment inquiry, notably citing the impeachment power (and not oversight power) as authority for the subpoena.

The subpoena is significant because the committees twice previously requested the exact same information citing the commitees' oversight authority. The administration ignored those requests. The new impeachment subpoena takes away the administration's arguments for stonewalling congressional inquiries under its oversight authority and may test whether Congress has more power when it engages in an impeachment than when it engages in regular oversight.

The subpoena, issued by the chairs of the House Foreign Affairs, Permanent Select Committee on Intelligence, and Oversight and Reform, is directed at Secretary of State Mike Pompeo. It seeks information related to President Trump's efforts to urge Ukraine to interfere with the 2020 election.

The subpoena letter begins, "Pursuant to the House of Representatives' impeachment inquiry . . . ."

The committee twice before asked for the same information, but citing only their oversight authority. Those requests are here and here.

The administration has now made a habit of ignoring congressional oversight requests, arguing that they (1) lack a legitimate legislative purpose, (2) violate its new and sweeping version of executive privilege, and (3) constitute law enforcement (not lawmaking) in violation of the separation of powers.

But by invoking the House's impeachment authority, the committee undermine those arguments (to the extent that they had any force in the first place). In an impeachment, there is no legislative purpose. Impeachment, as a significant constitutional check on the President, weighs stronger against a President's claim of executive privilege. And Congress is engaged in an impeachment inquiry, not law enforcement.

The administration will undoubtedly come up with constitutional arguments to ignore this latest subpoena, too. But the impeachment power seems to take away these three.

So: Does Congress have more authority when seeking information under its impeachment power? We don't know for sure. But Molly Reynolds and Margaret Taylor survey the arguments in this May 2019 piece over at Lawfare.

September 27, 2019 in Congressional Authority, Executive Authority, Executive Privilege, News, Separation of Powers | Permalink | Comments (0)

Wednesday, September 25, 2019

Impeachment Explained

With the news that the House of Representatives has launched an impeachment inquiry, many of us could use some explainers or refreshers on the rarely-used constitutional process of impeachment.

First, the Constitutional text. The United States Constitution provides for impeachment and removal of office for the President and other Executive officers in Article II §4:

The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.

The Constitution divides the power to impeach and the power to adjudicate impeachment between the chambers of Congress, with the House of Representatives having the power to impeach and the Senate having the power to adjudicate the impeachment and effect removal from office.

Article I §2 provides:

The House of Representatives shall chuse their Speaker and other Officers; and shall have the sole Power of Impeachment.

Article I §3 provides:

The Senate shall have the sole Power to try all Impeachments. When sitting for that Purpose, they shall be on Oath or Affirmation. When the President of the United States is tried, the Chief Justice shall preside: And no Person shall be convicted without the Concurrence of two thirds of the Members present.

Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States: but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.

The Constitution does not further detail the processes, but there is the precedent of previous impeachment processes, including those against Presidents Andrew Johnson, Richard Nixon, and William Clinton which were resolved at various stages and none of which led to conviction and removal. There is also the more frequent experience with judicial impeachments.

The Congressional Research Service has two excellent explainers on impeachment. First and of immediate interest is the report entitled The Impeachment Process in the House of Representatives.  It was updated August 2019, and although it is only 15 pages, it is an excellent and substantive discussion of the process and requirements.  A somewhat longer report from 2015 entitled Impeachment and Removal provides an overview including grounds for impeachment and trial in the Senate. As this report also notes, the question of impeachment has been held to be a nonjusticiable political question by the United States Supreme Court in Nixon v. United States, 506 U.S. 224 (1993), a case involving the impeachment of federal Judge Walter Nixon (not President Nixon, who resigned in 1974).

There have also been several good explainers in the media; here are a few:

Jennifer Haberkorn, Impeachment 101: How could Congress remove President Trump from office?, Los Angeles Times (May 30, 2019);

Ed Kilgore, The Impeachment Process Explained: What Happens to Trump Now?, New York Magazine (September 25, 2019);

Amber Phillips, What you need to know about the impeachment inquiry into Trump, Washington Post (September 25, 2019);

Charlie Savage, How the Impeachment Process Works, New York Times (September 24, 2019).

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September 25, 2019 in Congressional Authority, Current Affairs, Executive Authority, Executive Privilege, News | Permalink | Comments (0)

Tuesday, September 24, 2019

U.K. Supreme Court Unanimously Rules Suspension on Parliament Unlawful

In its opinion and judgment in R. (on behalf of Miller)  v. The Prime Minister and Cherry and others  v. Advocate General for Scotland, the U.K. Supreme Court considered whether "the advice given by the Prime Minister to Her Majesty the Queen on 27th or 28th August 2019 that Parliament should be prorogued from a date between 9th and 12th September until 14th October was lawful."  The Court's eleven Justices unanimously held it was not.

The prorogation or suspension of Parliament, as we discussed here and which the opinion discusses is the situation in which the Crown suspends Parliament, having both immediate and wider constitutional effects. After the Court's discussion of the events leading up to the prorogation, the Court articulated the issues:

1) Is the question of whether the Prime Minister’s advice to the Queen was lawful justiciable in a court of law?

(2) If it is, by what standard is its lawfulness to be judged?

(3) By that standard, was it lawful?

(4) If it was not, what remedy should the court grant?

The Court first held that the matter was justiciable: "although the courts cannot decide political questions, the fact that a legal dispute concerns the conduct of politicians, or arises from a matter of political controversy, has never been sufficient reason for the courts to refuse to consider it." However, the Court reasoned that to resolve  justiciability, the court must "determine whether the present case requires it to determine where a legal limit lies in relation to the power to prorogue Parliament, and whether the Prime Minister’s advice trespassed beyond that limit, or whether the present case concerns the lawfulness of a particular exercise of the power within its legal limits." This question is "closely related to the identification of the standard by reference to which the lawfulness of the Prime Minister’s advice is to be judged."

Turning to the standard, the Court discussed the U.K.'s "unwritten Constitution;"

Although the United Kingdom does not have a single document entitled “The Constitution”, it nevertheless possesses a Constitution, established over the course of our history by common law, statutes, conventions and practice. Since it has not been codified,it has developed pragmatically, and remains sufficiently flexible to be capable of further development. Nevertheless, it includes numerous principles of law, which are enforceable by the courts in the same way as other legal principles. In giving them effect, the courts have the responsibility of upholding the values and principles of our constitution and making them effective. It is their particular responsibility to determine the legal limits of the powers conferred on each branch of government, and to decide whether any exercise of power has transgressed those limits. The courts cannot shirk that responsibility merely on the ground that the question raised is political in tone or context.

The standard — the relevant limit upon the power to prorogue — was expressed by the Court as:

that a decision to prorogue Parliament (or to advise the monarch to prorogue Parliament) will be unlawful if the prorogation has the effect of frustrating or preventing, without reasonable justification, the ability of Parliament to carry out its constitutional functions as a legislature and as the body responsible for the supervision of the executive. In such a situation, the court will intervene if the effect is sufficiently serious to justify such an exceptional course.

Under that standard, it was clear that "the Prime Minister’s action had the effect of frustrating or preventing the constitutional role of Parliament in holding the Government to account," and this "was not a normal prorogation in the run-up to a Queen’s Speech." While the Court stated it would not inquire into the Prime Minister's motive, there must be a reason for his actions:

It is impossible for us to conclude, on the evidence which has been put before us, that there was any reason - let alone a good reason - to advise Her Majesty to prorogue Parliament for five weeks, from 9th or 12th September until 14th October. We cannot speculate, in the absence of further evidence, upon what such reasons might have been. It follows that the decision was unlawful.

As for remedy, the unlawfulness of the prorogation means that "Parliament has not been prorogued," so that "the Speaker of the House of Commons and the Lord Speaker can take immediate steps to enable each House to meet as soon as possible to decide upon a way forward."

The Court's opinion is a mere 25 pages, written in an accessible style despite its details and discussions of Seventeenth Century practices. ("The 17th century was a period of turmoil over the relationship between the Stuart kings and Parliament, which culminated in civil war. That political controversy did not deter the courts from holding, in the Case of Proclamations (1611) 12 Co Rep 74, that an attempt to alter the law of the land by the use of the Crown’s prerogative powers was unlawful." ).  

There is also a four page judgment summary. 

Additionally, the UK Supreme Court has made available the fifteen minute video of President of the Supreme Court, Lady Brenda Hale, delivering the summary of judgment. It's definitely worth a watch!

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September 24, 2019 in Comparative Constitutionalism, Courts and Judging, Current Affairs, International, News, Opinion Analysis, Separation of Powers | Permalink | Comments (0)

New York DA Pushes Back Against Trump's Claim of Absolute Immunity

New York DA Cyrus Vance, Jr., yesterday filed a motion to dismiss President Trump's federal lawsuit that seeks to shut down the state grand jury proceeding.

Recall that the state grand jury issued a subpoena to Mazurs USA for financial and tax records of a number of New York entities and individuals, including President Trump. President Trump then sued in federal court to halt the state process, arguing that he is absolutely immune from any criminal process. (His argument wasn't limited to just state criminal process or any criminal prosecution; instead, he argued that he is absolutely immune from any criminal process.)

Vance argues that 28 U.S.C. sec. 2283 and Younger abstention compel the federal court to dismiss the case. Section 2283 provides that "[a] court of the United States may not grant an injunction to stay proceedings in a State court except as expressly authorized by Act of Congress, or where necessary in aid of its jurisdiction, or to protect or effectuate its judgments." Similarly, Younger abstention requires a federal court to abstain from interfering in certain state-court proceedings.

Vance argues that the federal court should abstain from ruling on President Trump's constitutional claims until the state courts have a chance to do so. He says that there's no "special circumstances suggesting bad faith, harassment or irreparable injury that is both serious and immediate" that would justify an exception to the general abstention principle.

Moreover, Vance argues that President Trump failed to show irreparable harm and is wrong on the merits. As to harm, Vance says that subpoenaed records would be destroyed if the courts later rule the Mazurs subpoena invalid, and that the President's claims that he'd be distracted by the state criminal process is belied by the President's handling of other criminal processes. As to the merits--the President's sweeping claim of absolute immunity from any criminal process--Vance writes, "As the President's own papers make plain, no authority exists to support such a sweeping claim of immunity, which makes a showing of likelihood of success on the merits impossible."

September 24, 2019 in Cases and Case Materials, Courts and Judging, Executive Authority, Federalism, Jurisdiction of Federal Courts, News, Separation of Powers | Permalink | Comments (0)

Monday, September 23, 2019

New York Judge Orders Trump to Testify in Protest Tort Case

In her Order in Galicia v. Trump, Judge Doris Gonzalez has ordered that President Trump appear for a videotaped deposition prior to trial to provide testimony for use at trial in this tort case. 

The plaintiffs brought an action against Donald Trump,  Donald Trump for President, the Trump Organization, and Keith Schiller for events in September 2015 when plaintiffs were protesting Trump's views as he was beginning his campaign for President. Plaintiffs allege  that "several of Defendant Trump's bodyguards, including his confidant and chief security officer Keith Schiller, stormed Plaintiffs, pushed some of them down the sidewalk, using excessive force grabbed the signs from Plaintiffs and converted them to their own use." The case is proceeding to trial on claims of assault and battery, and against Donald Trump on a theory of respondeat superior.  In 2016, a state judge  granted a protective order against a motion to compel Trump's deposition before trial. When the case became ready for trial, plaintiffs issued a subpoena ad testificandum to compel Trump's testimony; Trump moved to quash, arguing that under Clinton v. Jones (1997), a president can only be deposed before trial and at the White House.

Judge Gonzalez began her discussion with a resort to the framers and Marbury v. Madison:

More than 200 years ago our founders sought to escape an oppressive, tyrannical governance in which absolute power vested with a monarch. A fear of the recurrence of tyranny birthed our three-branch government adorned with checks and balances. Chief Justice John Marshall famously stated, [t]he government of the United States has been emphatically termed a government of laws, and not of men. It will certainly cease to be deserve this high appellation, if the laws furnish no remedy for the violation of a vested legal right.” Marbury v. Madison, 1 Cranch 137 (1803). Put more plainly, no government official, including the Executive, is above the law.

Yet as Judge Gonzalez notes, the Court resolved the question of whether the President is absolved from legal responsibility for unofficial conduct in Clinton v. Jones. Further, the New York courts resolved the issue of whether the state courts could exercise jurisdiction over the President in Zervos v. Trump. 

However, President Trump argued that his testimony could not be compelled for trial, but only at pretrial as some dicta in Clinton v. Jones indicated, and that in any event, the plaintiffs had waived the President's testimony by not appealing the earlier order finding a motion to compel premature. Further, Judge Gonzalez distinguished a Second Circuit case relied upon by Trump that depositions of "high-ranking officials" should only occur in exceptional circumstances by noting that this was the rule in litigation involving official action rather than the unofficial pre-Presidential action at issue in this case.

Judge Gonzalez ruled that "questions of fact exist" regarding Trump's "exercise of dominion and control over his employee defendants" and ordered President Trump to "appear for a videotaped deposition prior to the trial of this matter and provide testimony for the use at trial."

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September 23, 2019 in Courts and Judging, Current Affairs, Executive Authority, Executive Privilege, Federalism, Opinion Analysis | Permalink | Comments (0)

Friday, September 20, 2019

President Argues for Absolute Immunity from All Criminal Process

President Trump filed suit yesterday to halt the Manhattan D.A.'s criminal investigation into the President's hush-money payments in the run-up to the 2016 election. The President argues that he's absolutely immune from any criminal process, including criminal investigation.

Here's why (quoting the 1973 OLC memo):

"To wound [the President] by a criminal proceeding is to hamstring the operation of the whole governmental apparatus, both in foreign and domestic affairs." The President thus cannot be subject to criminal process, for any conduct of any kind, while he is serving as President.

The President also makes a federalism claim--that it would violate federal supremacy to permit the Manhattan D.A. to saddle the President with a criminal investigation.

The President's argument extends the view of the OLC that the President is immune to criminal prosecution while in office. (Here's the 1973 OLC memo drawing that conclusion; here's the 2000 OLC memo, same.) At the same time, it leaves open the possibility that a President could be subject to criminal investigation (and prosecution) after leaving office. (For that reason, it argues that it's not claiming that "the President is above the law.)

September 20, 2019 in Cases and Case Materials, Executive Authority, Federalism, News, Separation of Powers | Permalink | Comments (0)

Thursday, September 19, 2019

Trump Administration Urges Court to Strike CFPB Independence

The Trump Administration urged the Court this week to take up a case that challenges the political independence of the head of the Consumer Financial Protection Bureau. If the Court takes the case, it would likely deal one more significant blow to agency independence--or to abolish agency independence altogether.

Congress created the CFPB as part of the Dodd-Frank Act to regulate consumer financial products and services. Under the Act, the head of the CFPB is appointed by the President, with Senate confirmation, for a five-year term and removable by the President only for "inefficiency, neglect of duty, or malfeasance in office." The removal provision is designed to ensure that the CFPB head isn't subject to the political whims of the White House.

In a brief in support of Court review this week, the administration argues that it violates the separation of powers. In particular, the administration claims that the termination provision encroaches too far into the President's authority to supervise the executive branch. It distinguishes Humphrey's Executor by arguing that, unlike the CFPB, the independent agency in that case, the FTC, involved a multi-member board with staggered appointment terms, and with quasi-legislative and quasi-judicial authority. It distinguishes Morrison v. Olson by arguing that, unlike the head of the CFPB, the independent office in that case, the Independent Counsel, was an inferior officer. By distinguishing these cases, the administration tries to thread the needle and strike CFPB independence while keeping multi-member agency and inferior officer independence on the books.

But if the Court can't see its way to navigate these waters, the administration has another suggestion: overrule Humphrey's Executor and Morrison v. Olson. Footnote 2 of the brief reads:

If this Court were to conclude that Humphrey's Executor or Morrison requires upholding the removal restriction, it should consider whether those cases should be overruled in part or in whole. That issue is fairly encompassed in the question presented.

If so, the whole idea of agency independence could go away.

September 19, 2019 in Cases and Case Materials, Congressional Authority, Executive Authority, News, Separation of Powers | Permalink | Comments (0)

Tuesday, September 17, 2019

Arizona Supreme Court Finds Religious Exemption for Same-Sex Wedding Invitations Despite Nondiscrimination Ordinance

In lengthy and sharply divided opinion in Brush & Nib Studio v. City of Phoenix, the Arizona Supreme Court has held that a custom wedding invitation company and its proprietors have a right to refuse to express to make invitations for same-sex weddings under article 2, section 6 of the Arizona Constitution, providing that "Every person may freely speak, write, and publish on all subjects, being responsible for the abuse of that right," as well as Arizona’s Free Exercise of Religion Act (“FERA”), A.R.S. § 41-1493.01. This right prevailed over the City of Phoenix’s Ordinance, as amended in 2013, which prohibits public accommodations from discriminating against persons based on their status in a “protected” group, which includes a person’s sexual orientation.  Phx., Ariz., City Code (“PCC”) § 18-4(B). As the majority made clear, however, its holding was " limited to Plaintiffs’ creation of custom wedding invitations that are materially similar to those contained in the record," and did not "recognize a blanket exemption from the Ordinance for all of Plaintiffs’ business operations," or reach the question of other wedding services. The court appended illustrative samples in the appendix (and see below).

NibThe opinion rests on the independent ground of the state constitution and is thus insulated from federal review (given that no other constitutional right is at issue). The majority notes that the free expression provision of the state constitution "by its terms" "provides broader protections for free speech than the First Amendment."

Nevertheless, the majority extensively relies upon United States Supreme Court cases.  The citations include the Court's 2018 opinion in Masterpiece Cakeshop Ltd. v. Colorado Civil Rights Commission, although in Masterpiece there was a conclusion that the Colorado Civil Rights Commission, enforcing its state nondiscrimination statute, expressed hostility on the basis of religion in its adjudication of the case - an issue that is not raised by the multiple opinions in Brush & Nib. The majority traces some of the rationales in the Masterpiece arguments: finding that the same-sex wedding invitations with their art and calligraphy (like the cake-baking) is "art" and speech, and finding that nondiscrimination ordinance seeks to compel their speech in support of beliefs they do not hold, such as same-sex marriage. The majority thus applies strict scrutiny, holding that a nondiscrimination public accommodations law is not a compelling governmental interest, and that such laws target conduct rather than speech and it is therefore not narrowly tailored.

Three of the seven Justices of the Arizona Supreme Court dissented. The dissenting opinion that all three Justices joined found that  there was a tension between "our fundamental values of liberty and equality," but because "the interest in preventing discrimination is compelling, equality prevails when we are dealing with public accommodations such as businesses serving the public." The dissenters also argued that "the majority implausibly characterizes a commercially prepared wedding invitation as “pure speech” on the part of the business selling the product and discounts the compelling public interest in preventing discrimination against disfavored customers."

And while this case is not suitable for certiorari to the Supreme Court, this issue will most likely recur in Arizona given the majority's attempt to limit the decision and the sharp divisions on the court; just as it will be recurring elsewhere.

September 17, 2019 in First Amendment, Opinion Analysis, Religion, Sexual Orientation, State Constitutional Law, Theory | Permalink | Comments (0)

Friday, September 13, 2019

Second Circuit Says Emoluments Suit Against Trump Can Move Forward

The Second Circuit ruled today in CREW v. Trump that a case alleging that the President violated the Foreign and Domestic Emoluments Clauses can move forward. The ruling rejects the President's arguments that the plaintiffs lack standing and that they fall outside the zones of interests of the Emoluments Clauses. It also rejects the district court's holdings that the case isn't ripe, and that it raises a nonjusticiable political question.

The ruling means that the case can go forward. It says nothing on the merits--whether President Trump actually violated the Emoluments Clauses. Still, it's a significant victory for the plaintiffs. It also splits with the Fourth Circuit, which dismissed an emoluments case in July for lack of standing.

The plaintiffs in the case, Eric Goode, a restauranteur and hotelier, and the Restaurant Opportunities Center United ("ROC"), a non-partisan, member-based organization of restaurants and restaurant workers, alleged that President Trump's properties siphon off business from the plaintiffs' operations when foreign and domestic government entities choose the President's properties over the plaintiffs' in order to enrich the President and gain his favor--all in violation of the Foreign and Domestic Emoluments Clauses. In particular, the plaintiffs allege (1) that they compete with the President's properties, (2) that the President implicitly solicits the patronage of government officials and acknowledged that, in making decisions, he favors governments that patronize his businesses, and (3) that governments have taken note of this, and been influenced by it, in deciding which properties to patronize.

The district court dismissed the case, holding that the plaintiffs lacked standing, that they fall outside the zone of interests of the Emoluments Clauses, that their claims aren't ripe, and that the case raises nonjusticiable political questions.

The Second Circuit reversed. As to standing, the court ruled that the plaintiffs sufficiently pleaded injury, causation, and redressability under competitor-standing theory: "[t]he complaint, supported by expert declarations, alleges that . . . unlawful market conduct skew has caused Plaintiffs economic harm in the form of lost patronage from government entities, and that such harm will continue in the future"; "[t]he complaint adequately pleads a competitive injury of lost patronage directly traceable to the fact that the President's allegedly illegal conduct induces government patrons of the hospitality industry . . . to patronize Trump establishments in favor to Plaintiffs' establishments"; and "[b]ecause Plaintiffs have successfully alleged a plausible likelihood that President Trump's conduct caused their injuries, and the injury is ongoing, it logically follows that [injunctive relief] would redress their injury--at least to some extent, which is all that Article III requires."

As to the zone of interests, the court first held that the Supreme Court recently ruled that zone of interests is not a test of Article III standing. But the court said that in any event, the plaintiffs fell within it: "Without exception, the Court has held that a plaintiff who sues to enforce a law that limits the activity of a competitor satisfies the zone of interests test even though the limiting law was not motivated by an intention to protect entities such as plaintiffs from competition."

As to the political question issue (which the President did not argue at the Second Circuit), the court said that the district court erred in holding that under the Emoluments Clauses "Congress is the appropriate body to determine whether, and to what extent, [the President's] conduct unlawfully infringes on that power." Instead, the court held that under the plain language of the Emoluments Clauses, if Congress doesn't consent to an emolument, it's a violation. And it's the role of the courts to judge just such violations.

As to ripeness (which the President also did not argue), the court said that the district court erred in relying on the prospect of future congressional action and on the reasoning of Justice Powell's concurrence in Goldwater v. Carter. The court held that this case is distinguishable: Goldwater involved an inter-branch dispute over inter-branch powers; but this case simply involves an allegation that the President's private conduct is illegal. "There is no claim on the part of the Congress, or any of its members, that the President's private conduct of his business affairs usurps power allocated to Congress by the Constitution."

Judge Walker dissented, arguing that the plaintiffs lacked standing, consistent with the Fourth Circuit's approach.

September 13, 2019 in Cases and Case Materials, Courts and Judging, Jurisdiction of Federal Courts, News, Opinion Analysis, Political Question Doctrine, Ripeness, Standing | Permalink | Comments (0)