Thursday, June 11, 2015
The D.C. Circuit ruled last week in Public Citizen v. FEC that Crossroads GPS, a conservative 501(c)(4) organization, has standing to intervene as a defendant in the on-going litigation involving the FEC's decision not to pursue Public Citizen's complaint against Crossroads GPS.
The case grows out of Public Citizen's complaint to the FEC that Crossroads GPS violated federal election law by failing to register as a political committee, despite "raising and spending significant amounts of money to influence the 2010 congressional elections." The FEC Office of General Counsel recommended that the FEC "find reason to believe" that Crossroads GPS violated FECA, but the FEC divided 3-3 on moving forward. Because the FEC needs four votes to move forward, it dismissed the complaint.
Public Citizen then sued the FEC in federal district court--the complaint is here--and Crossroads GPS moved to intervene as defendant. The district court denied the motion, ruling that Crossraods GPS didn't have standing, but the D.C. Circuit reversed.
The court said that Crossroads GPS has standing on the theory that an adverse court decision would mean that Crossroads GPS would again be subject to enforcement proceedings at the FEC:
In short, the favorable FEC ruling provides Crossroads--as most favorable agency actions would--with a significant benefit, similar to a favorable civil judgment, and precludes exposure to civil liability. Were Crossroads to lose that beneficial ruling, it would return to the position of a respondent subject to enforcement proceedings before a federal agency. Crossroads understandably claims this loss would amount to concrete injury.
The court said that "even where the possibility of prevailing on the merits after remand is speculative, a party seeking to uphold a favorable ruling can still suffer a concrete injury in fact."
The court rejected the argument that the FEC would adequately represent Crossroad's interests, because the FEC's General Counsel recommended moving forward in the first place.
The ruling doesn't say anything on the merits of Public Citizen's claims against the FEC. It only adds a new dimension to the case.
Wednesday, June 10, 2015
The Fifth Circuit has issued its opinion in Whole Woman's Health v. Cole, as the latest in the continuing saga regarding the constitutionality of HB 2.
Recall that a divided Supreme Court previously vacated the Fifth Circuit stay of the district judge's injunction against portions of the law, thus reinstating the district judge's injunction at least in part.
This opinion dissolves the district judge's opinion except as to one clinic in McAllen, Texas, holding that HB2's admitting privileges requirement and ambulatory surgical center (ASC) requirements did not impose an "undue burden" on women seeking abortions as a facial matter (and relying in part on Planned Parenthood of Texas Surgical Providers v. Abbott as a basis for res judicata). As applied, the court distinguished McAllen from El Paso, which has another abortion clinic nearby, albeit across the Texas state border in New Mexico.
It is unlikely this latest opinion will be an end to the litigation regarding HB2.
Monday, June 8, 2015
The Supreme Court ruled today in Zivotofsky v. Kerry that the President has exclusive power of recognition of foreign sovereigns, and that a congressional attempt to force the President to recognize sovereignty over Jerusalem (by Israel) impermissibly intrudes on the President's power.
The ruling is a decisive win for the presidency over Congress in the area of recognition of foreign sovereignty. It also puts an end to this highly politicized case involving U.S. recognition of sovereignty over Jerusalem.
Recall that Congress enacted legislation requiring the State Department to put "Israel" as the country-of-birth on a passport of any U.S. citizen born in Jerusalem, upon the request of the passport applicant. President George W. Bush signed the legislation, but with a signing statement saying that this was unconstitutional. The State Department has long had regs that say that only "Jerusalem" (and not "Israel") go on the passport of a U.S. citizen born in Jerusalem, so as not to tilt the balance toward one side on the sensitive question of who has sovereignty over Jerusalem.
Justice Kennedy wrote the Court's opinion, joined by Justices Ginsburg, Breyer, Sotomayor, and Kagan. Justice Kennedy said that the text and history of the Reception Clause (giving the President power to "receive Ambassadors and other public Ministers") gives the President alone authority to recognize foreign sovereigns. He wrote that the text and purpose of Section 214(d) of the Foreign Relations Authorization Act--which required the State Department to list "Israel" as the country-of-birth for a U.S. citizen born in Jerusalem, upon the passport applicant's request--intruded on that authority.
Justice Breyer filed a concurring opinion; Justice filed an opinion concurring in part and dissenting in part; Chief Justice Roberts filed a dissent (joined by Justice Alito); and Justice Scalia wrote a dissent (joined by Chief Justice Roberts and Justice Alito).
We'll have more analysis and review later.
Friday, June 5, 2015
The D.C. Circuit this week upheld a key authority of the EPA for enforcing the Clean Air Act against federalism and congressional authority challenges. The per curiam ruling rejected other challenges to EPA action, as well, and means that the case is dismissed. The ruling leaves intact the EPA's authority to designate geographic areas as noncompliant with the Clean Air Act and to take certain enforcement actions.
The federalism challenge in the case, Mississippi Commission on Environmental Quality v. EPA, sought to exploit the plurality's ruling in NFIB, where the Court held that Obamacare's Medicaid expansion couldn't condition a state's entire Medicaid grant on the ACA's Medicaid expansion. But the court rejected that argument, easily distinguishing Medicaid expansion and the EPA's actions here, as described below.
The case tested EPA's authority to designate certain geographic areas as noncompliant with the Clean Air Act's National Ambient Air Quality Standards. A variety of plaintiffs lodged complaints, but only two, Wise County, Texas, and the Texas Commission on Environmental Quality, raised constitutional claims. They argued that the EPA's designation of Wise County as a nonattainment area violated the Tenth Amendment and due process, and exceeded congressional authority under the Commerce Clause.
The court rejected these arguments. The court ruled that the Clean Air Act "authorizes the EPA to promulgate and administer a federal implementation plan of its own if the State fails to submit an adequate state implementation plan." The court said that's not commandeering, because the federal government isn't requiring the state or state officers to implement the federal plan.
The court also ruled that the Clean Air Act's sanctions for noncompliance--re-direction of a portion of federal highway funds to federal programs that would improve air quality--were not unduly coercive under NFIB. That's because they don't come close to the size of a state's federal Medicaid grant, and because it wasn't a new program that came as a surprise to the states. Indeed, the condition has been on the books (and states have taken advantage of it) for decades.
The court said that the Clean Air Act's delegation of authority to the EPA to designate areas as noncompliant is well within Congress's Commerce Clause authority. The court said that dirty air blows across state lines, causing a substantial effect on interstate commerce, and that the activities in Wise County that led to the dirty air themselves have a substantial effect on interstate commerce.
Finally, the court rejected a due process claim that the EPA administrator for Region 6 was biased. The court said that the administrator's past professional activities and statements did not rise to the level of an "unalterably closed mind" or an inability or unwillingness "to rationally consider arguments."
As mentioned, the court rejected other arguments against the EPA's authority, too, mostly under the APA.
Wednesday, June 3, 2015
A New York appellate court has held that an "undocumented" immigrant can be admitted to the state bar and the practice of law in its opinion in In the Matter of Application of Cesar Adrian Vargas.
The court considered whether Vargas (pictured right), an "undocumented" immigrant who does posses documents authorizing him to be in the United States and to work under the Deferred Action for Childhood Arrivals (DACA) policy, could be admitted to the New York bar. The court determined that under state law he could. Importantly, the court also determined that pursuant to the Tenth Amendment, this state law should prevail.
The statutory landscape is somewhat complex. As the court explains most succinctly:
[The issue is] whether such an individual is barred from admission to the practice of law by a federal statute, 8 USC § 1621, which generally prohibits the issuance of state professional licenses to undocumented immigrants unless an individual state has enacted legislation affirmatively authorizing the issuance of such licenses. This presents an issue of first impression in New York and, in terms of the applicability of 8 USC § 1621 and its compatibility with the Tenth Amendment of the United States Constitution, an issue of first impression nationwide.
We hold that a narrow reading of 8 USC § 1621(d), so as to require a state legislative enactment to be the sole mechanism by which the State of New York exercises its authority granted in 8 USC § 1621(d) to opt out of the restrictions on the issuance of licenses imposed by 8 USC § 1621(a), unconstitutionally infringes on the sovereign authority of the state to divide power among its three coequal branches of government. Further, we hold, in light of this state’s allocation of authority to the judiciary to regulate the granting of professional licenses to practice law (see Judiciary Law § 53), that the judiciary may exercise its authority as the state sovereign to opt out of the restrictions imposed by section 1621(a) to the limited extent that those restrictions apply to the admission of attorneys to the practice of law in the State of New York.
In essence, the court holds that a federal statute cannot constitutionally require that only a legislative enactment of a state will satisfy the statute's opt-out provision.
While the court noted that it is "unusual" for a state court to pass judgment on the constitutionality of a federal statute, it is not unprecedented.
The court found that the Tenth Amendment is implicated because "although Congress has left the ultimate determination whether to extend public benefits, including professional licensure, to the states, it has, at the same time, prescribed the mechanism" - - - exclusively legislative - - - "by which the states may exercise that authority." But in New York, the legislature has "determined that the state judiciary is the sovereign authority vested with the responsibility for formulating the eligibility qualifications and processes governing the admission of attorneys and counselors to the practice of law." Thus, the court concludes that the legislative limitation in the federal statute "cannot withstand scrutiny under the Tenth Amendment."
The court analogized to Gregory v. Ashcroft (1991) in which the United States Supreme Court relied on the Tenth Amendment to reject a federal age discrimination claim by state judges to Missouri's mandatory retirement age of 70.
Although Gregory addressed the state’s interest in determining who holds office, the State of New York has no less an interest in determining which of its branches of government is empowered to exercise the discretion authorized by section 1621(d) to determine who may be licensed as an attorney and counselor-at-law. Indeed, the role of New York courts in regulating attorneys is deliberate, well-considered, and time-tested. There are sound reasons why, in New York, the responsibility for attorney admissions is vested in the state’s judiciary rather than in other branches or departments of government. As Judge Benjamin Cardozo declared nearly 90 years ago, an attorney is “an officer of the court, and, like the court itself, an instrument or agency to advance the ends of justice.”
The court then cites the "variety of rules governing the admission and conduct of attorneys" that the New York judicial branch formulates and oversees: the Rules of Professional Conduct; the State Board of Law Examiners; the 50-hour pro bono requirement for new attorney admissions; the licensure of legal consultants; the admission of counsel pro hac vice; the payment of biennial attorney registration fees; the parameters of attorney advertising; the requirements for attorney-client retainer agreements; and the imposition of discipline upon attorneys who violate the state’s ethics rules.
For the court, the "ability, indeed the right, of the states to structure their governmental decision-making processes as they see fit is essential to the sovereignty protected by the Tenth Amendment." Thus, the federal statute cannot limit the decision regarding noncitizen licensure to only one branch of a state's government.
While equal protection and other constitutional arguments were raised in the case, the court's interpretation of the federal statute and its own conclusion regarding the applicant's suitability for bar admission obviated consideration of those arguments.
[full disclosure: Vargas is a graduate of CUNY School of Law].
Monday, June 1, 2015
Dissenting in a denial of certiorari today in County of Maricopa, Arizona v. Lopez-Valenzuela, Justice Thomas, joined by Justice Scalia, argued that the Supreme Court should review decisions by lower federal courts invalidating state "constitutional provisions." At issue in Lopez-Valenzuela is Arizona's "Proposition 100" a ballot measure passed by Arizona voters that amended the state constitution to preclude bail for certain serious felony offenses if the person charged has entered or remained in the United States illegally and if the proof is evident or the presumption great as to the charge.
The Ninth Circuit en banc held the measure unconstitutional as violative of due process, over dissents by Judges Tallman and O'Scannlain.
Justice Thomas notes that
Congress historically required this Court to review any decision of a federal court of appeals holding that a state statute violated the Federal Constitution. 28 U. S. C. §1254(2) (1982 ed.). It was not until 1988 that Congress eliminated that mandatory jurisdiction and gave this Court discretion to review such cases by writ of certiorari. See Pub. Law 100-352, §2, 102 Stat. 662.
More provocatively, Justice Thomas implicitly evokes the "Ghost of Lochner" by pointing out that the Ninth Circuit's decision rested on substantive due process grounds and quoting from West Coast Hotel Co. v. Parrish, 300 U. S. 379, 391 (1937) and Nebbia v. New York, 291 U. S. 502, 537–538 (1934), which specifically disapproved Lochner v. New York (1905).
For Justice Thomas, the Court's refusal to grant certiorari is "disheartening," : "there are not four Members of this Court who would even review the decision below." (Note that Justice Alito also dissented, although he did not join Justice Thomas's opinion, for a total of three Justices who would have granted certiorari).
For Justice Thomas, the Court's "indifference to cases such as this one will only embolden the lower courts to reject state laws on questionable constitutional grounds."
In its highly-anticipated opinion in Elonis v. United States seemingly involving the First Amendment protections for threatening language posted on Facebook, the Court deflected the constitutional issue in favor of statutory interpretation.
Recall that while the question presented in the certiorari petition focused on the First Amendment and pointed to a split in the circuits regarding an application of Virginia v. Black, 538 U.S. 343 (2003) to a conviction of threatening another person: did it require proof of the defendant’s subjective intent to threaten or whether it is enough to show that a “reasonable person” would regard the statement as threatening. However, the Court's Order granting certiorari instructed:
In addition to the question presented by the petition, the parties are directed to brief and argue the following question: "Whether, as a matter of statutory interpretation, conviction of threatening another person under 18 U. S. C. §875(c) requires proof of the defendant's subjective intent to threaten."
And at oral argument, much of the discussion delved into common law and Model Penal Code doctrine, even as these were intertwined with First Amendment considerations.
Today's opinion, authored by Chief Justice Roberts, disentangles the First Amendment from the analysis. It concludes that as a matter of statutory interpretation, the instructions to the jury that guilt could be predicated on a "reasonable person" standard merited reversal.
Federal criminal liability generally does not turn solely on the results of an act without considering the defendant’s mental state. That understanding “took deep and early root in American soil” and Congress left it intact here: Under Section 875(c), “wrongdoing must be conscious to be criminal.”
However, whether or not that mental state could include "recklessness" was not decided by the Court. Chief Justice Roberts's opinion for the seven Justice majority, specifically disagreed with Justices Alito and Thomas, who each wrote separately, regarding the suitability of reaching the "recklessness" issue. Roberts wrote:
In response to a question at oral argument, Elonis stated that a finding of recklessness would not be sufficient. Neither Elonis nor the Government has briefed or argued that point, and we accordingly decline to address it.
Moreover, although the Court may be “capable of deciding the recklessness issue,” (quoting the opinion of ALITO, J.), Roberts wrote that "following our usual practice of awaiting a decision below and hearing from the parties would help ensure that we decide it correctly."
Here is the Court's First Amendment "discussion":
Given our disposition, it is not necessary to consider any First Amendment issues.
Justice Alito would reach the First Amendment issue and hold that a recklessness standard would comport with the First Amendment. Justice Thomas, dissenting, would affirm the Third Circuit's "general intent" standard and hold that Elonis' statements were "true threats" unprotected by the First Amendment.
Interestingly, Chief Justice Roberts's opinion does include extensive quotes from the postings, including Mr. Elonis's reference to "true threat jurisprudence." It does not, however, include some of the more problematical sexual language.
The Supreme Court ruled today that there was no clearly established right to proper implementation of adequate suicide prevention procedures in a prison. The per curiam ruling in Taylor v. Barkes means that the commissioner of the Delaware Department of Correction and a prison warden enjoyed qualified immunity against a claim by the family of a deceased prisoner that they failed to supervise and monitor a private contractor's intake screening and medical treatment of the suicidal prisoner. The family's civil rights case against the commissioner and warden is therefore dismissed.
The case involved a prisoner who had a history of psychiatric treatment, medication, and suicide, but who was not designated for any special suicide prevention measures pursuant to the intake protocol. After intake, the prisoner called his wife and told her he was going to kill himself. Officers observed the prisoner awake and behaving normally the next morning, but later that morning the prisoner hanged himself with a bed sheet.
The family sued the commissioner and warden for violation of the Eighth Amendment. But the Court's ruling today says that the prisoner had no clearly established right to proper implementation of an adequate suicide prevention protocol. As a result, the defendants enjoyed qualified immunity, and the case is dismissed.