Tuesday, May 21, 2019
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.
Judge Emmett G. Sullivan (D.D.C.) ruled last week that congressional members' case against President Trump for violations of the Foreign Emoluments Clause can go forward. The ruling rejects the president's motion to dismiss, and paves the way for declaratory and injunctive relief against the president.
The ruling is not final; it only allows the case to move forward. But given the language and conclusions in this ruling, and in an earlier one that the members had standing to sue, it seems all but inevitable that the court will rule against the president on the merits.
The case involves the members' claim that the president violated the Foreign Emoluments Clause after he failed to seek and obtain the consent of Congress for accepting payments from foreign governments derived from real estate holdings; intellectual property rights from China; payments for hotel rooms and events from foreign diplomats and foreign lobbing groups; licensing fees from foreign governments for "The Apprentice"; and regulatory benefits from foreign governments. Judge Sullivan previously ruled that the members had standing.
The court rejected the president's argument that the Clause "applies only to the receipt of compensation for services rendered by an official in an official capacity or in an employment (or equivalent) relationship with a foreign government, and to the receipt of honor and gifts by an office-holder from a foreign government." (Two examples, according to the president: (1) "a federal official would receive an Emolument if he or she was paid by a foreign government to take certain official actions"; and (2) "an Emolument would  be received if an official became an employee or entered an employment-like relationship with the foreign government, such as if a federal government lawyer provided legal advice and services to a paying foreign power.") The court surveyed the original understanding, the plain text, the history, the interpretation at the adoption, the purpose of the Clause, and Executive Branch practice and concluded that the Clause was much broader than what the president argued. Judge Sullivan concluded that the "plaintiffs have stated a claim against the President for allegedly violating the Foreign Emoluments Clause."
The court also rejected the president's argument that it can't create an implied cause of action under the Foreign Emoluments Clause:
Here, accepting the allegations in the Amended Complaint as true, which the Court must at this junction, the President is accepting prohibited foreign emoluments without seeking congressional consent, thereby defeating the purpose of the Clause to guard against even the possibility of "corruption and foreign influence." Exercising the Court's equitable discretion here is therefore "not in derogation of the separation of powers, but to maintain their proper balance."
Finally, the court ruled that the plaintiffs' requested injunctive relief didn't violate the separation of powers. It said that it had authority to enjoin the president in matters involving an exercise of the president's "ministerial" duties, and that getting congressional approval was "ministerial."
The Trump Administration reversed its earlier position and argued before the Fifth Circuit last week that the entire Affordable Care Act must fall. According to the administration, that's because (1) the individual mandate is now unconstitutional and (2) the rest of the Act is inseparable from it and therefore must also fall.
The move was expected. With it, the administration now supports the district court's sweeping ruling that struck the entire Act.
The administration argues first that the individual plaintiffs have standing to lodge this challenge. The administration claims that these "individual plaintiffs are directly subject to the individual mandate and have established concrete financial injuries from it." It argues that it doesn't matter that there's now no means of enforcing the mandate (after Congress set the tax penalty at $0), because the plaintiffs have been harmed by higher insurance prices and fewer insurance choices resulting from the (inseverable) guaranteed-issue and community-rating provisions.
The administration goes on to argue that the mandate is now unconstitutional, because the tax penalty is set at $0. The administration claims that the $0 tax penalty transforms the mandate from a congressional action based on its taxing authority (held valid in NFIB) to a congressional action based on its Commerce Clause authority (held invalid under NFIB). As a result, the administration claims that the mandate is unconstitutional.
Finally, the administration claims that all other provisions of the Affordable Care Act are inseverable from the mandate, and therefore must fall, too. The administration points to congressional intent and Court rulings that the guaranteed-issue and community-rating provisions are tied up with the individual mandate; and it argues that all other ACA provisions are, too, because their operation would fundamentally change from the ways that Congress intended when the mandate and the guaranteed-issue and community-rating provisions fall.
The administration's position, if accepted by the Fifth Circuit, would mean that the entire ACA goes away, including the individual mandate; the guaranteed-issue and community-rating provisions; and the health-care exchanges, coverage limits, requirements to cover dependent children, and restrictions on high-cost insurance plans.
Friday, May 3, 2019
The First Circuit ruled that the state of Massachusetts has standing to sue the Trump administration to halt implementation of its rules establishing religious and moral exemptions to the Affordable Care Act's "contraception mandate."
Those rules allow covered employers to get an exemption from the ACA's requirement that employers provide certain contraceptive services.
The mandate is already subject to nationwide injunctions from other cases (in which the courts have also found valid standing for challenging states; we posted most recently here.) This is just the latest case to move forward.
The court said that Massachusetts sufficiently demonstrated a fiscal harm. Here's why: (1) the state demonstrated that some employers in the state are likely to use the exemptions and drop employees from contraception coverage; (2) the state demonstrated that at least some of those employees are likely to turn to the state for contraception and related services; and (3) this "cause and effect" chain is based on "probable market behavior."
The court also ruled that the state showed causation and redressability--the former for the reasons above; the latter because halting the exemptions would also halt this chain of causation.
The ruling is only preliminary. It only allows the case to move forward on the merits. But as we said: the rules are already subject to nationwide injunctions, and this case won't directly affect those injunctions.
Thursday, May 2, 2019
Trump Administration officials continue to thwart efforts at congressional oversight, citing separation-of-powers and congressional authority, among others, as the basis for refusing to comply with requests for testimony and documents. The particular reasons for declining to comply vary depending on the request, however, with one consistent theme: The Administration repeatedly claims that congressional requests exceed Congress's oversight authority. (It also claims that members of Congress previously adopted different positions with regard to congressional oversight of a different president, that the administration has already provided plenty of material, and that requests are politically motivated. These, of course, are not constitutional reasons not to comply.)
We posted here on the White House's arguments in support of its decision to decline to make Steve Miller available for testimony. We posted here on President Trump's lawsuit against his accountant to halt compliance with a congressional subpoena for his financial records.
Here are four new cases this week:
White House Security Clearance Process
Pat Cipollone, counsel to president, wrote to House Oversight Committee Chairman Elijah Cummings that it would not comply with Committee requests for files related to the White House security clearance process. Cipollone argued that "the Committee's inquiry is also legally unsupportable for several reasons." First, the Committee's efforts to "investigat" "specific individuals" is outside the Committee's oversight authority. Next, the Committee's request for individual files "has no legitimate legislative purpose." Third, the Committee seeks documents that are "at the heart of executive privilege," that reflect internal executive branch deliberations, that, if disclosed, "would undermine the investigative process, expose sensitive information that could jeopardize the FBI's ability to conduct future investigations, and raise serious separation of powers concerns," and that "implicate sensitive information." Finally, "the Committee appears to be putting public servants at risk in order to advance a partisan political agenda."
The Full Mueller Report and Materials
Assistant AG Stephen Boyd wrote to House Judiciary Chairman Nadler that DOJ would not turn over the unredacted Mueller report and supporting materials. Boyd cited past Department practice, and concluded that
Against this backdrop of the Department's compelling need to protect the autonomy and effectiveness of its investigations, as well as the extraordinary steps the Attorney General has already taken to accommodate the Committee's needs, the Committee has not articulated any legitimate legislative purpose for its request for all of the Special Counsel's investigative files. The Committee has no legitimate role in demanding law enforcement materials with the aim of simply duplicating a criminal inquiry--which is, of course, a function that the Constitution entrusts exclusively to the Executive Branch.
Moreover, "disclosing grand-jury information in response to congressional oversight requests is prohibited by [Rule 6e of the Federal Rules of Criminal Procedure]."
Barr's Testimony Before the House
AG Barr refused to show up at his House Judiciary Committee hearing today, apparently because he didn't like Nadler's rule that Committee attorneys would also question him. Best we can tell, he apparently thinks this is a separation-of-powers problem, because only members should be able to question him.
Trump's Suit Against Deutsche Bank and Capital One
President Trump filed suit against Deutsche Bank and Capital One to stop them from complying with congressional subpoenas for his financial records. The suit is similar to the one he filed against his accountants. It argues that the subpoenas exceed Congress's oversight authority, because they lack a "legitimate legislative purpose," and violate the Right to Financial Privacy Act.
Friday, April 26, 2019
In its extensive opinion in Hodes & Nauser v. Schmidt, the Supreme Court of Kansas held that the right to abortion in protected under its state constitution and regulations of the fundamental right should be subject to strict scrutiny.
The per curiam opinion is exceedingly clear that the opinion rests on independent state constitutional grounds and that it is interpreting §1 of the Kansas state Constitution, adopted in 1859: "All men are possessed of equal and inalienable natural rights, among which are life, liberty, and the pursuit of happiness." The court specifically finds that this provision creates judicially enforceable "natural rights" such as the right to "personal autonomy" to make decisions regarding our bodies, health care, family formation, and family life, including a woman's right to decide whether to continue a pregnancy.
Having held that the right to an abortion is encompassed within the fundamental right bodily autonomy, the Kansas Supreme Court held that strict scrutiny should apply, which the court articulated as prohibited the state from restricting that right unless it can show it is doing so to further a compelling government interest and in a way that is narrowly tailored to that interest.
At issue in the case is Kansas S.B. 95, passed in 2015, now K.S.A. 65-6741 through 65-6749, which prohibits physicians from performing a specific abortion method referred to in medical terms as Dilation and Evacuation (D & E) except when "necessary to preserve the life of the pregnant woman" or to prevent a "substantial and irreversible physical impairment of a major bodily function of the pregnant woman."
The trial court had issued a preliminary injunction, which the Kansas Supreme Court upheld, but remanded the case for a fuller evidentiary hearing applying strict scrutiny.
via & caption: Kansas Supreme Court
Seated left to right: Hon. Marla J. Luckert, Hon. Lawton R. Nuss, Chief Justice; Hon. Carol A. Beier.
Standing left to right: Hon. Dan Biles, Hon. Eric S. Rosen, Hon. Lee A. Johnson, and Hon. Caleb Stegall.
In a concurring opinion, Justice Dan Biles argued that the majority should be more explicit in articulating how strict scrutiny should be applied in the abortion context, suggesting what "our state test should look like using an evidence-based analytical model taken from Whole Woman's Health v. Hellerstedt" (2016). Justice Biles provided a very detailed roadmap that would be attractive to the trial court. Justice Biles also placed the decision within developments in state constitutional law on abortion:
It is also worth mentioning our court has not gone rogue today. By my count, appellate courts in 17 states have addressed whether their state constitutions independently protect a pregnant woman's decisions regarding her pregnancy from unjustifiable government interference. Of those, 13 have plainly held they do. [citations omitted].
The sole dissenting Justice of the seven Justices of the Kansas Supreme Court (pictured above) was Justice Caleb Stegall, who relied on numerous dissenting opinions in both the United States Supreme Court and Kansas Supreme Court. He began his opinion by stating "This case is not only about abortion policy—the most divisive social issue of our day—it is more elementally about the structure of our republican form of government." In essence, he considers the majority to be taking an activist stance. The majority opinion does devote more than a little attention to refuting and engaging with the dissent's arguments.
Because the case cannot be reviewed by the United States Supreme Court (given that the state's highest court decided it on the independent ground of its state constitution, unless it is argued it infringes on another constitutional right), subsequent constitutional law issues will be concentrated on what happens in the trial court and what might happen in other states.
April 26, 2019 in Abortion, Courts and Judging, Due Process (Substantive), Family, Federalism, Fourteenth Amendment, Jurisdiction of Federal Courts, Opinion Analysis, State Constitutional Law, Supreme Court (US) | Permalink | Comments (0)
In an opinion in Amawi v. Pflugerville Independent School District, United States District Judge for the Western District of Texas, Judge Robert Pittman, issued a temporary injunction against Texas Gov. Code § 2270.001 et seq., also known as Texas H.B. 89, passed in 2017.
HB 89 prohibits governmental entities from entering into contracts for goods or services unless the contract contains a written verification that the contractor does not and will not "boycott Israel." Texas essentially admitted HB 89 is targeted at participants in the BDS (boycott, divest, and sanction) movement which protests Israel's "occupation of Palestinian territory and its treatment of Palestinian citizens and refugees." The five plaintiffs —a speech pathologist contracting with a school district; a freelance writer, artist, interpreter, and translator contracting with a university; and three university students who would contract with high schools as debate tournament judges — refused to sign the required statement that they did not and would not boycott Israel.
Judge Pittman easily found that the plaintiffs had standing, that their claims were ripe, and that the action was not barred by Eleventh Amendment immunity.
On the merits of the First Amendment claims, Judge Pittman's careful and well reasoned opinion first concluded that the prohibition of a boycott was inherently expressive activity protected by the First Amendment. The parties had raised what Judge Pittman called "dueling precedents": NAACP v. Claiborne Hardware Co. (1992) and Rumsfeld v. FAIR (2006). He concluded:
Claiborne, not FAIR, governs this case. Texas does not dispute that Plaintiffs’ boycotts are political; they support the BDS movement’s “dispute with the Israeli government’s policies.” Claiborne deals with political boycotts; FAIR, in contrast, is not about boycotts at all. The Supreme Court did not treat the FAIR plaintiffs’ conduct as a boycott: the word “boycott” appears nowhere in the opinion, the decision to withhold patronage is not implicated, and Claiborne, the key decision recognizing that the First Amendment protects political boycotts, is not discussed.
Moreover, Judge Pittman stated, even if "it were generally true that boycotts are not inherently expressive, H.B. 89, by its terms, applies only to expressive boycotts," given the statutory definitions. Judge Pittman then rejected the arguments of Texas that exceptions to Claiborne were applicable.
Judge Pittman then found that the H.B. 89 was viewpoint and content discrimination, and was not government speech under Walker v. Texas Div., Sons of Confederate Veterans, Inc. (2015). Applying the applicable standard of strict scrutiny, Judge Walker found that the asserted compelling governmental interests failed. Judge Pittman found two of the interests — prohibiting national-origin discrimination, and prohibiting state contractors from violating anti-discrimination principles — to essentially be not the actual interests underlying H.B. 89. Judge Pittman noted the statute does not refer to the "national origin" or "nationality" of individuals but to "the nation of Israel." Judge Pittman described the statute as being "underinclusive" in this way, providing examples of who would and would not be covered by the statute. As to the third interest asserted by Texas — aligning the state's commercial interests with Israel because it is “one of the few democracies in the Middle East and an ally of the United States and this State" — Judge Pittman essentially found this was not compelling. Texas had argued that “the First Amendment does not prevent restrictions directed at commerce or conduct from imposing incidental burdens on speech,” but Judge Pittman found that this was not an "incidental burden" on speech, but targeted specific speech directly.
Judge Pittman then proceeded to an analysis of the means chosen, although clearly stated that because "H.B. 89 is not justified by any compelling state interest, no amount of narrowing application will preserve it from constitutional attack. But even if Texas’s stated interests were the actual interests advanced by the statute—and even if they were compelling—the Court finds that H.B. 89 still sweeps too broadly."
Judge Pittman's extensive and detailed opinion then found that plaintiffs' additional First Amendment arguments — that the statute is an unconstitutional condition, that it was compelled speech, and that it was unconstitutionally vague — all had merit.
The constitutionality of anti-BDS statutes is being vigorously litigated and Judge Pittman's decision is sure to be appealed. The opinion's perspective on the popularity of anti-BDS statutes is quite interesting:
Twenty five states have enacted similar legislation or issued executive orders restricting boycotts of Israel, and Congress has declared its opposition to the BDS movement, see 19 U.S.C. § 4452. In Texas, only five legislators voted against H.B. 89. Texas touts these numbers as the statute’s strength. They are, rather, its weakness. “If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.” West Virginia State Bd. of Educ. v. Barnette (1943).
[some citations omitted].