Constitutional Law Prof Blog

D.C. Circuit Finds Competitor Standing in Case Against IRS

Steven D. Schwinn, John Marshall Law School

The D.C. Circuit ruled today that an association of CPAs and their firms had "competitor standing" to challenge an IRS program that allows previously uncredentialed tax return preparers who meet certain prerequisites to have their names listed in the IRS's online "Directory of Federal Tax Return Preparers."

The ruling is a victory for the association and allows the case to go forward on the merits.

The ruling is also a victory for anyone who wants to get into federal court to challenge an action that may give their competitors an edge, even if the link between the action and the edge is based only on "basic economic logic."

The IRS program allows previously uncredentialed tax return preparers--so-called "unenrolled preparers"--to get listed if they take a class and meet other requirements. The program is a boon to preparers who take advantage of it, because they'll get listed with the IRS and, as a result, get more tax preparation business. It'll also likely deal a blow to CPAs and other already-credentialed preparers, because they'll now have to compete toe-to-toe with lower-cost unenrolled preparers.

The association challenged the program for violating notice-and-comment rulemaking requirements. The district court dismissed the case for lack of standing. The association appealed and argued, among other things, competitor standing.

The D.C. Circuit agreed with the association. It wrote that association members "will face intensified competition as a result of the challenged government action. Specifically, participating unenrolled preparers will gain a credential and a listing in the government directory." The court accepted the association's claim that this "will 'dilute[] the value of a CPA's credential in the market for tax-return-preparer services' and permit unenrolled preparers to more effectively compete with and take business away from presumably higher-priced CPAs."

You might wonder why the link between the IRS program and the CPAs' harm isn't too speculative (under, say, Clapper v. Amnesty International). After all, the IRS program is voluntary, not compulsory, so it's not obvious that any unenrolled preparer will even participate; moreover, it's not obvious that IRS listing will benefit a participant; and moreover it's not obvious that listing will benefit a participant to the detriment of CPAs. The court had an answer to all this: "basic economic logic." The court explained:

To begin with, the link between the government-backed credentials offered to unenrolled preparers and the reputational benefit they will enjoy is hardly speculative. Indeed, the reputational benefit is the very point of the IRS Program. . . . Moreover . . . the IRS Program at issue here is both voluntary and clearly intended to offer competitive benefits to those unenrolled preparers who participate in the Program. "Basic economic logic" suggests that unenrolld preparers will choose to participate only if they believe the resulting reputational benefit will produce a substantial enough competitive advantage to outweigh their compliance costs.

The court declined to consider the IRS argument that the association's complaint wasn't within the "zone of interests protected or regulated by the statutory provision" it invokes, because the IRS didn't raise it at the district court.

En Banc Sixth Circuit Rejects "Heckler's Veto" in "Bible Believers" Protest at Arab-American Festival

Professor Ruthann Robson, City University of New York (CUNY) School of Law

The en banc Sixth Circuit's opinion in Bible Believers v. Wayne County clearly rejected the existence of a "heckler's veto" to inflammatory but protected speech under the First Amendment's speech clause, as well as finding the speech protected under the Free Exercise Clause and the Equal Protection Clause of the Fourteenth Amendment.  The en banc court also found that the government was liable and that there was no qualified immunity.

Recall that last year a panel of the Sixth Circuit rejected the constitutional challenges of the Bible Believers group, affirming the district judge's grant of summary judgment for the government.

The underlying controversy arose when a group known as the "Bible Believers," Evangelical Christians, came to the Arab International festival on the streets of Dearborn, Michigan - - - as they had done the year before - - - to "preach."  Their speech included "strongly worded" slogans on signs, t-shirts, and banners (e.g., "Islam Is A Religion of Blood and Murder"),  a "severed pig's head

Repin, Demontsration 1905, via

on a stick" (intended to protect the Bible Believers by repelling observers who feared it), statements through a megaphone castigating the following of a "pedophile prophet" and warning of "God's impending judgment."  A crowd gathered, seemingly mostly of children and adolescents, who yelled back and threw items at the preachers.  A law enforcement asked the Bible Believers to leave, and - when pressed - saying they would be cited for disorderly conduct. They were eventually escorted out.

The Sixth Circuit's extensive en banc opinion, authored by Judge Eric Clay - - - and in which 8 (including Clay) of the 15 Sixth Circuit judges joined - - - resolutely "confirms" the free speech protections that should be accorded to a speaker even when "angry, hostile, or violent crowds" seek to silence that speaker. 

The opinion first finds that the Bible Believers' speech was protected, rejecting exception of incitement (to riot) and fighting words.  The "fighting words" discussion is regrettably short - - - a single paragraph - - - and summarily advances the "objective standard" requiring the insult to be likely to provoke the "average person" (emphasis in original) and moreover to be directed at an "individual."  In the context of the facts here, these principles deserved further exploration.

After a brief discussion of the public forum, the en banc opinion then discussed at length the "heckler's veto" doctrine and concluded it was not a viable doctrine.  Applying that conclusion, the opinion discussed law enforcement performance, citing the video record (which the court did at several points in the opinion): there was "next to no attempt made by the officers to protect the Bible Believers or prevent the lawless actions of the audience" and  it was not sufficient an effort "to maintain peace among a group of rowdy youths" - - - i.e., the crowd at the festival - - - if it consists of  a"few verbal warnings and a single arrest.  The court advised:

We do not presume to dictate to law enforcement precisely how it should maintain the public order. But in this case, there were a number of easily identifiable measures that could have been taken short of removing the speaker: e.g., increasing police presence in the immediate vicinity, as was requested; erecting a barricade for free speech, as was requested; arresting or threatening to arrest more of the law breakers, as was also requested; or allowing the Bible Believers to speak from the already constructed barricade to which they were eventually secluded prior to being ejected from the Festival. If none of these measures were feasible or had been deemed unlikely to prevail, the WCSO [Wayne County Sheriff's Office] officers could have called for backup—as they appear to have done when they decided to eject the Bible Believers from the Festival—prior to finding that it was necessary to infringe on the group’s First Amendment rights. We simply cannot accept Defendants’ position that they were compelled to abridge constitutional rights for the sake of public safety, when at the same time the lawless adolescents who caused the risk with their assaultive behavior were left unmolested.

In a very brief analysis, the court held that the free exercise claim "succeeds on the same basis as the free speech claim."  As for the Equal Protection Clause claim, the court's discussion is similarly summary, but its analysis seems much too conclusory:

The Festival included a number of other religious organizations that came to share their faith by spreading a particular message. There are several distinctions between the Bible Believers and these other groups. Mainly, the Bible Believers chose, as was their right, not to register for an assigned table under the information tent. Instead, they paraded through the Festival and proselytized, as was also their right, while carrying signs and a severed pig’s head. Although these actions set them apart from the other speakers and religious organizations at the Festival, they do not do so in any relevant respect. Any speaker could have walked the Festival grounds with or without signs if they chose to do so. The Bible Believers, like the other religious organizations at the Festival, sought to spread their faith and religious message. Although they declined to utilize the tent set aside for outside groups, their conduct was at all times peaceful while they passionately advocated for their cause, much like any other religious group. Wayne County did not threaten the Bible Believers based on their decision to march with signs and banners, but based on the content of the messages displayed on the signs and banners. The county’s disparate treatment of the Bible Believers was based explicitly on the fact that the Bible Believers’ speech was found to be objectionable by a number of people attending the Festival. Wayne County therefore violated the Bible Believers’ right to equal protection by treating them in a manner different from other speakers, whose messages were not objectionable to Festival-goers, by burdening their First Amendment rights.

The en banc court also held that the officers were not entitled to qualified immunity and that municipal liability was established.  On these issues, there were vigorous dissents.  And indeed, the en banc majority seems on tenuous ground, especially given its earlier discussion of Sixth Circuit precedent in Glasson v. City of Louisville decided in 1975:

In this Circuit, a modicum of confusion is understandable with respect to the prohibition against the heckler’s veto due to Glasson’s discussion of a good-faith affirmative defense.  . . . . Therefore, to the extent that Glasson’s good-faith defense may be interpreted as altering the substantive duties of a police officer not to effectuate a heckler’s veto, it is overruled.

Yet in the discussion of qualified immunity, the en banc court reasoned:

To the extent that Glasson’s discussion of a good-faith defense confused the issue of whether a heckler’s veto constitutes a constitutional violation, the facts and analysis in Glasson nonetheless alerted Defendants that removing a peaceful speaker, when the police have made no serious attempt to quell the lawless agitators, could subject them to liability.

That both the district judge and a previous panel of the Sixth Circuit had found that law enforcement's actions were constitutional, this seems a harsh conclusion - - - and is inconsistent with recent qualified immunity in First Amendment cases.  (For example, recall the unanimous Supreme Court 2014 opinion in Lane v. Franks, not cited in the Sixth Circuit opinions).

On the whole, the Sixth Circuit opinion validates the First Amendment right of provocative, offensive, and "challenging speech" - - - including symbolic speech such as marching with a pig's head on a stick - - - and requires law enforcement to protect such speech against (physically) hostile reactions by directing their efforts against those who are hostile rather than the speakers.   As Judge John Rogers, dissenting, suggested, one way to view the underlying controversy was that the "Bible Believers were hecklers seeking to disrupt the cultural fair" being held by the Arab-American community as an expressive enterprise.  The en banc majority clearly rejected that view - - - and held that the government should be liable for damages.

Pacific Legal Foundation Asks Supremes to Review Origination Clause Challenge to Obamacare

Steven D. Schwinn, John Marshall Law School

The Pacific Legal Foundation filed a  cert. petition yesterday, asking the Supreme Court to review a D.C. Circuit ruling that the individual mandate in Obamacare didn't violate the Origination Clause. We posted on the D.C. Circuit ruling here.

The Origination Clause, Article I, Section 7, Cl. 1, says that "All Bills for raising Revenue shall originate in the House of Representatives; but the Senate may propose or concur with Amendments as on other Bills." Because the Court upheld the individual mandate under Congress's taxing power, the logic goes, the ACA was a "bill for raising revenue." And while a bill that ultimately became Obamacare originated in the House, the Senate gutted that bill and replaced it with the ACA. The Pacific Legal Foundation argues that this violated the Origination Clause.

The D.C. Circuit flatly rejected the argument. It said, in short, that the individual mandate wasn't a "bill for raising revenue" for Origination Clause purposes, even if Congress enacted it under its taxing authority.

Here are the QPs in the cert. petition:

1.    Is the tax on going without health insurance a "Bill[] for raising Revenue" to which the Origination Clause applies?

2.    Was the Senate's gut-and-replace procedure a constitutionally valid "amend[ment]" pursuant to the Origination Clause?

 

Court Rejects Government Tactics to Delay Release of G-Mo Force-Feeding Videos

Steven D. Schwinn, John Marshall Law School

Judge Gladys Kessler (D.D.C.) denied the government's motion to reconsider her earlier ruling ordering the government to release videos of force-feedings at Guantanamo Bay.

The ruling is a victory for those seeking release. It keeps Judge Kessler's original ruling ordering the release on track, although we might expect more government foot-dragging.

This most recent ruling in the case comes after the D.C. Circuit remanded so that the district court could consider supplemental government declarations in support of its earlier motion to stay. Consider them she did, and concluded that they said, well, nothing--or at least nothing game-changing. (That's at best. At worst, they were "flat out unbelievable," as in one government declaration that said that if the videos are released, force-fed Detainee Dhiab's privacy would be invaded. So after all this, that's what the government is concerned about--Dhiab's privacy.)

As to the public's right to gain access to the images, Judge Kessler noted that the D.C. Circuit has "neither recognized nor rejected that the First Amendment affords the public a right of access to civil proceedings," and that the government "interprets the D.C. Circuit's silence as a denial of that right." But she went on to note that five other circuits have concluded that there is such a right, and that "Judge Hogan concluded, and this Court agrees, that there has been a long history in our country of public access to civil proceedings."

 

Ninth Circuit on Unconscious Bias, Equal Protection, and Batson

Professor Ruthann Robson, City University of New York (CUNY) School of Law

A divided Ninth Circuit panel has affirmed the district judge in granting habeas corpus and vacating a death sentence in its opinion in Crittenden v. Chappell.

Crittenden's claimed the prosecutor at trial excluded an African-American prospective juror on account of her race, in violation of the Equal Protection Clause of the Fourteenth Amendment, as interpreted in Batson v. Kentucky (1986). The Ninth Circuit had previously clarified that the peremptory challenge at issue need not be motivated solely by race, but only “motivated in substantial part” by race, “regardless of whether the strike would have issued if race had played no role.” On remand, the district judge found that the prosecutor was substantially motivated by race.

While there are several issues in the case, including deference, appellate procedure, and retroactivity, the issue of "intent" under equal protection doctrine in the Batson context was central. The district judge's opinion engaged in specific comparisons regarding jurors and also stated "[t]he [side-by-side juror] comparisons demonstrate that . . . [the prosecutor] was motivated, consciously or unconsciously, in substantial part by race."   The relevance of "unconsciously" was a division among the Circuit judges.  For the majority, this was a "passing comment" in the district judge's opinion, and "all the court meant was, whatever the explanation for the prosecutor’s racial motive, that motive was a substantial reason for his use of a peremptory strike." (emphasis in original).  The majority added, "In other words, why the prosecutor had a conscious racial motive to strike [the potential juror] Casey in the first place – whether or not 'unconscious racism' partly explained that motive – was simply irrelevant to the Batson inquiry."  It interestingly added this footnote:

It was relevant, of course, to the prosecutor’s reputation. The district court’s reference to “unconscious racism” spared him from being found a racist. By suggesting the prosecutor may have had more benign racial motives for the strike, or that his racial motive may have been influenced by unconscious racism, the court hoped to shield the prosecutor from possible disrepute. As the court made clear, however, this effort was not designed to – and did not – detract from the court’s key finding that the strike was consciously motivated by race.

Thus, because the majority upheld the district court’s finding of a conscious racial motive, "we do not – and need not – address whether unconscious bias can establish a Batson violation."

Judge Margaret McKeown dissented from the opinion authored by Judge Raymond Fisher and joined by Judge Marsha Berzon, arguing that there needed to be a clearer indication of discriminatory purpose:

The remaining question is whether, in striking [the potential juror] Casey, the prosecutor had a discriminatory purpose. “‘Discriminatory purpose’ . . . implies more than intent as volition or intent as awareness of consequences. It implies that the decisionmaker . . . selected . . . a particular course of action at least in part ‘because of,’ not merely ‘in spite of,’ its adverse effects upon an identifiable group.” Hernandez v. New York (1991) (plurality) (quoting Person. Admin. of Mass. v. Feeney,  (1979)). The touchstone, as described in our caselaw, is whether race was a “substantial motivating factor” in the prosecutor’s decision to strike Casey.

(ellipses in original).  For dissenting judge McKeown, the burden was on the defendant to prove purposeful discrimination and he failed to do so. She added,

This case calls to mind Justice Breyer’s observation that the Batson inquiry can be an “awkward, sometime hopeless, task of second-guessing a prosecutor’s instinctive judgment—the underlying basis for which may be invisible even to the prosecutor exercising the challenge.” Miller-El v. Dretke (2005) (Breyer, J., concurring). In view of the record of what actually happened, the trial judge’s findings and the ultimate composition of the jury, our retrospective parsing simply cannot elevate ambiguous, speculative foundation to proof that the prosecutor was motivated in substantial part by racism.

The problem of the degree of proof of intent in equal protection claims generally and Batson specifically has vexed the courts.  Recall that the United States Supreme Court will be taking another look at equal protection doctrine under Batson this term in Foster v. Humphrey; the lower court had held that  merely because the prosecutor's notes and records revealed "that the race" - - - meaning Black - - - "of prospective jurors was either circled, highlighted or otherwise noted on various lists" did not establish purposeful discrimination. 

D.C. Circuit Denies Bivens Remedy for Overseas Violations in Criminal Terrorism Investigation

Steven D. Schwinn, John Marshall Law School

The D.C. Circuit on Friday ruled in a fractured opinion that a U.S. citizen secretly detained, transferred involuntarily between countries, and threatened with torture by FBI agents did not have a claim for violation of the Fourth Amendment in federal courts. That's because "special factors" counseled against such a remedy under Bivens v. Six Unknown Agents.

The ruling means that Plaintiff Meshal's case is dismissed, and leaves him without a remedy. It also makes it yet even more difficult for plaintiffs like Meshal to get their cases heard in federal court. 

The FBI originally detained and held Meshal because of his alleged connections to al Qaeda; it later released him without charges.

The court wrote that Meshal's claim involved a "new context" for Bivens--a strike against him right out of the gate:

Not only does Meshal's claim involve new circumstances--a criminal terrorism investigation conducted abroad--it also involves different legal components--the extraterritorial application of constitutional protections. Such a different context requires us to think anew. To our knowledge, no court has previously extended Bivens to cases involving either the extraterritorial application of constitutional protections or in the national security domain, let alone a case implicating both--another signal that this context is a novel one.

Because the case arose in a "new context," the court looked to special factors counseling against a Bivens remedy. And it found two, which, taken together, left Meshal without a Bivens cause of action: (1) the case involves "the military, national security, or intelligence," and (2) the conduct occurred outside the borders of the United States. The court also said that a host of "practical factors" counseled against a Bivens remedy, including requiring the court to second guest executive officials operating in foreign justice systems, unknown diplomatic consequences of the suit, and forcing the courts to answer hard questions about the extraterritorial application of the Constitution outside of peacetime.

Judge Kavanaugh wrote separately to especially emphasize the military, counter-terrorism, and foreign context of the suit--the "new context" that triggered the special factors analysis and weighted so heavily against a Bivens claim.

Judge Pillard wrote a lengthy and scathing dissent, dissecting the court's analysis point-by-point. Judge Pillard was particularly concerned about the blind judicial deference to the government's mere invocation, without reasonable explanation, of foreign policy and national security as special factors counseling against a Bivens remedy. She summed up the strange and deeply disturbing result:

Had Meshal suffered these injuries in the United States, there is no dispute that he could have sought redress under Bivens. If Meshal's tormentors had been foreign officials, he could have sought a remedy under the Torture Victim Protection Act. Yet the majority holds that because of unspecified national security and foreign policy concerns, a United States citizen who was arbitrarily detained, tortured, and threatened with disappearance by United States law enforcement agents in Africa must be denied any remedy whatsoever.

President Obama Vetoes Defense Authorization Over Guantanamo Closure Restriction

Steven D. Schwinn, John Marshall Law School

President Obama this week vetoed H.R. 1735, the National Defense Authorization Act for Fiscal Year 2016, citing a variety of objections, including the NDAA's restriction on the use of funds to close Guantanamo Bay, to transfer detainees out of Guantanamo Bay, and to house them here in the United States.

In prior years, President Obama signed the NDAA, but issued a signing statement saying that the Guantanamo-closure provisions were unconstitutional.

But this year, he used those provisions--Sections 1031 through 1041 in the bill--along with other objectionable features of the bill, as a reason to veto. Here's what he said about restrictions on closing Guantanamo:

I have repeatedly called upon the Congress to work with my Administration to close the detention facility at Guantanamo Bay, Cuba, and explained why it is imperative that we do so. As I have noted, the continued operation of this facility weakens our national security by draining resources, damaging our relations with key allies and partners, and emboldening violent extremists. Yet in addition to failing to remove unwarranted restrictions on the transfer of detainees, this bill seeks to impose more onerous ones. The executive branch must have the flexibility, with regard to those detainees who remain at Guantanamo, to determine when and where to prosecute them, based on the facts and circumstances of each case and our national security interests, and when and where to transfer them consistent with our national security and our humane treatment policy. Rather than taking steps to bring this chapter of our history to a close, as I have repeatedly called upon the Congress to do, this bill aims to extend it.

At the same time, he said that he supported a provision imposing statutory restrictions on interrogation techniques and limiting techniques to those in the Army Field Manual.

Second Circuit Upholds Bulk of Gun Restrictions Against Second Amendment Challenges

Professor Ruthann Robson, City University of New York (CUNY) School of Law

In its extensive opinion in the consolidated cases of  New York State Rifle and Pistol Ass'n v. Cuomo and  The Connecticut Citizens' Defense League v. Malloy, a panel of Second Circuit substantially upheld gun restrictions passed by New York and Connecticut subsequent to the December 2012 "mass murders at Sandy Hook Elementary School in Newtown, Connecticut." The court largely affirmed the district judge's opinion finding the bulk of New York's SAFE Act constitutional.

The central challenge was a Second Amendment one and the court applied the two-step inquiry that is becoming accepted throughout the circuits.

The first question is whether the government restriction burdens conduct protected by the Second Amendment: the Second Amendment protects only “the sorts of weapons” that are (1) “in common use” and (2) “typically possessed by law‐abiding citizens for lawful purposes.”

If so, the court then moves to the second inquiry, determining initially the "level of scrutiny" to be applied by considering two factors: (1) “how close the law comes to the core of the Second Amendment right” and (2) “the severity of the law’s burden on the right.”  After determining the level of scrutiny - - - here, intermediate scrutiny - - - the court then applies the standard asking "whether the statutes at issue are 'substantially related to the achievement of an important governmental interest.'"

 

Affirming the respective district judges, the Second Circuit upheld the constitutionality of state prohibitions on semiautomatic assault weapons and large‐capacity magazines.  The Second Circuit held that Connecticut's specific prohibition on the non‐ semiautomatic Remington 7615 and New York's "seven‐round load limit" violated the Second Amendment.

Manet, Mister Pertuiset, The Lion Hunter, 1881 via

 

The court also considered several due process vagueness challenges to specific provisions in the laws, reversing the conclusion of the New York federal district judge that certain provisions - - - pertaining to “versions” and “muzzle breaks”- - - were unconstitutionally vague.

 

The Second Circuit's opinion is closely reasoned and well within what is becoming the standard within all the circuits.  Although the opinion several times mentions the absence of clear United States Supreme Court precedent - - - reminding that neither District of Columbia v. Heller (2008) nor McDonald v. City of Chicago (2010) "delineated the precise scope of the Second Amendment or the standards by which lower courts should assess the constitutionality of firearms restrictions" - - - this should not be a case that the Second Circuit would be moved to reconsider or that the Supreme Court would find worthy of review - - - unless a ban on the possession of automatic assault weapons should be subject to strict scrutiny under the Second Amendment.

 

No Standing in Case for Constitutional Convention

Steven D. Schwinn, John Marshall Law School

Judge James E. Boasberg (D.D.C.) ruled today that an individual plaintiff lacked standing to sue House Speaker John Boehner and Senate Majority Leader Mitch McConnell to force them to call a constitutional convention. But the ruling doesn't end the matter: the case now goes back to D.C. Superior Court under the federal statute that allowed the defendants to remove to federal court in the first place.

Repeat plaintiff Montgomery Blair Sibley, described by the court as "a United States citizen with a propensity for filing unmeritorious lawsuits," sued Boehner and McConnell, arguing that thirty-five states have voiced their support for a constitutional convention, "some as far back as 1901 (Minnesota), some as recently as 1979 (Mississippi)." But Sibley argued that the congressional leaders failed to call a convention, as required by Article V. ("The Congress . . . on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments . . . .")

While Sibley filed first in D.C. Superior Court, Boehner and McConnell removed the case to federal court under a federal statutes that allows removal of suits in state court against any officer of either House of Congress. They then moved to dismiss, arguing that Sibley lacked standing, that they're protected by the Speech and Debate Clause, and that the case raises a non-justiciable political question.

Judge Boasberg ruled only on standing, and said that Sibley lacked it. (The ruling was even easier than it looks, as it turned out, because Sibley conceded the point early in the lawsuit.)

But Judge Boasberg also remanded the case to D.C. Superior Court, because the statues that allowed removal also required remand, and because Judge Boasberg held that there was no futility exception.

Still, the D.C. court is almost certain to dismiss the case, if only because D.C. law on standing follows the federal courts.

Third Circuit Reinstates Constitutional Claim Against NYC for Muslim Surveillance

Professor Ruthann Robson, City University of New York (CUNY) School of Law

The Third Circuit's 60 page opinion today in Hassan v. City of New York reverses and remands the terse dismissal of the complaint in February 2014 by United States District Judge William Martini.  The original complaint alleged that the New York City Police Department’s surveillance program targeted New Jersey Muslims solely on the basis of religion, thereby violating their First and Fourteenth Amendment rights.  The district judge found that there was no standing - - - in part because the plaintiffs did not know about their surveillance until it was revealed by the press and thus had no injury - - - and that the complaint did not state a plausible claim - - - in part because the "police could not have monitored New Jersey for Muslim terrorist activities without monitoring the Muslim community itself."

The unanimous opinion by Judge Thomas Ambro, joined by Julio Fuentes, and with a very brief concurrence by Jane Roth regarding the standard of equal protection scrutiny to be applied, comes complete with a Table of Contents.  (Query whether opinions are increasingly availing themselves of a brief-like TOC: compare District Judge Shira Scheindlin's opinion in the NYC stop and frisk lawsuit, although her opinion is more than 3 times as long with many more footnotes.  Or perhaps there is something about NYC police practices that calls for a TOC?).

After a rehearsal of the NYC surveillance program and its disclosure, the court considers the problem of Article III standing.  For the Third Circuit, the "injury in fact" requirement of standing is satisfied by the plaintiffs' allegation of the denial of equal treatment on the basis of their religion under the Equal Protection Clause, as well as the First Amendment.  The court rejected NYC's arguments that there needed to be a tangible benefit denied, that there needed to be an overt condemnation (interestingly contrasting Plessy v. Ferguson and Brown v. Board of Education); and that the injuries were not sufficiently particularized.  As to the "fairly traceable" causation requirement, the court soundly rejected the contention that it was the only disclosure of the surveillance by the press rather than the surveillance itself that caused the injury. Finally, in its brief discussion of "redressability," the court, quoting an Eleventh Circuit case, noted that "While we cannot predict 'the exact nature of the possible relief . . . without a full development of the facts, an order enjoining the policy and requiring non-discriminatory investigation and enforcement would redress the injury.'"

On the equal protection issue, the Third Circuit held that the complaint plausibly alleged that the NYC surveillance program made a facial religious classification.  It further held that this religious classification does not require an "invidious motive.": 

While the absence of a legitimate motive may bear on whether the challenged surveillance survives the appropriate level of equal-protection scrutiny, “intentional discrimination” need not be motivated by “ill will, enmity, or hostility” to contravene the Equal Protection Clause.

The court here interestingly cites the district judge's decision in the NYC stop and frisk case. 

The Third Circuit thus finds that the NYC surveillance program was facially religious, but then discussed the tier of scrutiny that religious classifications should merit:

Perhaps surprisingly, neither our Court nor the Supreme Court has considered whether classifications based on religious affiliation trigger heightened scrutiny under the Equal Protection Clause. . . .

Although the answer to this question is not found in binding precedent, we hardly write on a clean slate. To start, it has long been implicit in the Supreme Court’s decisions that religious classifications are treated like others traditionally subject to heightened scrutiny, such as those based on race.  [Citations omitted]

This line of comment can be traced back to the famous footnote four of the Supreme Court’s 1938 decision in Carolene Products, where the Court suggested that discriminatory legislation should “be subjected to more exacting judicial scrutiny under the general prohibitions of the Fourteenth Amendment” if “directed at particular religious, or national, or racial minorities.”

After discussing a number of appellate court decisions, the Third Circuit panel held:

Today we join these courts and hold that intentional discrimination based on religious affiliation must survive heightened equal-protection review. Before turning more fully to our reasoning, however, we pause to reiterate that the term “heightened scrutiny,” as we use it, encompasses both “intermediate scrutiny” and “strict scrutiny.”

The panel stated that it need not - - - and should not - - - "determine in connection with its motion to dismiss which of the two applies, and we leave that question for the District Court in the first instance when and if it becomes necessary to decide it."  However, the court does engage in a Carolene Products-type of analysis to substantiate its conclusion, devoting some discussion to the "immutability" factor (which of course was not in the Carolene Products footnote).  It also noted that the "history of religious discrimination in the United States is intertwined with that based on other protected characteristics, including national origin and race," and that the allegations of the complaint reflected this intertwinement.

It is on this point that Judge Roth differs, arguing in her concurrence that intermediate scrutiny should apply and providing a somewhat personal explanation:

In my opinion, “intermediate scrutiny” is appropriate here. I say this because “intermediate scrutiny” is the level applied in gender discrimination cases. I have the immutable characteristic of being a woman. I am happy with this condition, but during my 80 years on this earth, it has caused me at times to suffer gender discrimination. My remedy now for any future gender discrimination would be reviewed with “intermediate scrutiny.” For that reason, I cannot endorse a level of scrutiny in other types of discrimination cases that would be stricter than the level which would apply to discrimination against me as a woman.

The Third Circuit did acknowledge the national security interest, but added that "it is often where the asserted interest appears most compelling that we must be most vigilant in protecting constitutional rights," explicitly invoking Korematsu and Hirabayashi.

The court's relatively brief First Amendment conclusion similarly rejects NYC's claim that animus must be proven.

The court concludes:

What occurs here in one guise is not new. We have been down similar roads before. Jewish-Americans during the Red Scare, African-Americans during the Civil Rights Movement, and Japanese-Americans during World War II are examples that readily spring to mind. We are left to wonder why we cannot see with foresight what we see so clearly with hindsight—that “[l]oyalty is a matter of the heart and mind[,] not race, creed, or color.” [citation omitted].

image via

 

 

Campaign Finance and Enforcement

The NYT reported yesterday that just 158 elite families and the companies they control have provided nearly half the money in the early part of the 2016 presidential election.

The are overwhelmingly white, rich, older and male, in a nation that is being remade by the young, by women, and by black and brown voters. Across a sprawling country, they reside in an archipelago of wealth, exclusive neighborhoods dotting a handful of cities and towns. And in an economy that has minted billionaires in a dizzying array of industries, most made their fortunes in just two: finance and energy. . . .

Not since before Watergate have so few people and businesses provided so much money early in a campaign, most of it through channels legalized by the Supreme Court's Citizens United decision five years ago.

At the same time, Ciara Torres-Spelliscy writes at the Brennan Center that DOJ is stepping up to enforce campaign finance crimes:

The Federal Election Commission is still living up to its unfortunate nickname as the Little Agency That Wouldn't. This means that in the pricey and already in full swing 2016 presidential election, the FEC is likely to be sitting on its hands instead of enforcing the law. But would be scofflaws do have something to worry about: the Justice Department is on the beat.

Columbus Day - - - Or Indigenous Peoples Day?

The 2015 Presidential Proclamation for Columbus Day includes an acknowledgement that the celebration of Columbus is controversial among many:

Though these early travels expanded the realm of European exploration, to many they also marked a time that forever changed the world for the indigenous peoples of North America. Previously unseen disease, devastation, and violence were introduced to their lives -- and as we pay tribute to the ways in which Columbus pursued ambitious goals -- we also recognize the suffering inflicted upon Native Americans and we recommit to strengthening tribal sovereignty and maintaining our strong ties.

As the Washington Post reports, many cities are replacing Columbus Day with Indigenous Peoples Day, including Seattle. The state of South Dakota legislated the day as "Native American Day" in 1990 - - - although no other state seems to have followed suit.  The day remains a federal holiday.

A lively commentary by James Nevius over at The Guardian calls Christopher Columbus a "lost sadist," but also interestingly argues that the holiday's "sentiments are superfluous," given the United States' development.  In a more scholarly vein, Kevin Bruyneel has argued that the holiday serves as a consolidation of white settler identity; his article, The Trouble with Amnesia: Collective Memory and Colonial Injustice in the United States, takes calendar holidays as its theme and is worth a read over at ssrn.

Gräff Matthias, Christoph Kolumbus landet auf San Salvador, via

How to Write a Constitution to Prevent Violence

Nic Cheeseman and Alexander Noyes give tips in the Washington Post on writing a constitution to prevent violence and promote peace in Africa. (An upcoming Tanzanian vote provides the backdrop.)

Cheeseman (Oxford) is the author of Democracy in Africa: Successes, Failures, and the Struggle for Political Reform.

Their lessons, largely drawn from Cheeseman's book:

-Constitutional design is important, but very different kinds of constitutions can work.

-Political inclusion can bring great benefits, to a point.

-Power-sharing carries large risks, if not done right.

-But failing to share power also comes with risks.

-There's no one-size-fits-all model for every country.

Judge Allows Challenge to D.C. School Funding to Move Forward

Steven D. Schwinn, John Marshall Law School

Judge Tanya Chutkan (D.D.C.) last week denied the District of Columbia's motion to dismiss key parts of a claim by D.C. charter schools that the D.C. government under-funded them in comparison to District public schools. The lengthy ruling is laden with analysis on the constitutional relationship between Congress and the District, much of it indeterminate, reminding us just how complicated this relationship can be.

The plaintiff charter schools brought the case, arguing that the D.C. government funneled extra money to D.C. public schools, but not charter schools, in violation of the District Clause and Home Rule Act, the Supremacy Clause, and the School Reform Act. In particular, the plaintiffs argued that the D.C. government violated the Home Rule Act by altering a a congressional act (the School Reform Act) without specific congressional authorization. The District countered that it has authority under the Home Rule Act to amend or repeal the School Reform Act, because the School Reform Act applies only to the District.

Judge Chutkan ruled that neither the case law nor the Home Rule Act tells when Congress acts in tandem with the D.C. City Council (so that the Council could alter a congressional act), or when Congress has the final word--at least in the abstract. So she turned to the text and history of the School Reform Act to answer the question here. But Judge Chutkan said that the School Reform Act was similarly indeterminate. She wrote that the Act's apparent mandatory language on equal school funding for charters and public schools wasn't dispositive, because "if the District can (and has) repealed Acts of Congress that used the term 'shall,' then that term alone cannot necessarily delineate Congress' intent with respect to the Council's authority.'" Moreover, Judge Chutkan said that the legislative history of the School Reform Act didn't answer the question. The upshot: "As it stands, the uniform funding formula is on the books, and it is not clear whether it has been violated, whether it has been amended or repealed by Council enactments (through Congressional acquiescence or otherwise), or whether the challenged actions do not implicate or conflict with the funding formula at all." She thus denied the District's motion to dismiss the District Clause, Home Rule Act, and School Reform Act claims. The ruling means that these claims can move forward.

In contrast, Judge Chutkan did dismiss the plaintiffs' Supremacy Clause claim. That's because the Supremacy Clause doesn't apply to congressional acts over D.C.; the District Clause does. The analysis is the same, Judge Chutkan wrote, but the Supremacy Clause doesn't do the work.

The Civil Rights Issue of Our Time: The Supreme Court

ConLawProf Rick Hasen (UC Irvine, Election Law Blog) wrote in a wide-ranging piece last week at TPM that the composition of the Supreme Court itself is "the most important civil rights cause of our time."

And according to Hasen, it's one that progressives don't pay enough attention to.

Consider what's at stake in the next presidency:

Justice Ruth Bader Ginsburg will be nearly 84, Justices Antonin Scalia and Anthony Kennedy will be over 80, and Justice Stephen Breyer will be 78. Although many Justices have served on the Court into their 80s and beyond, the chances for all these Justices remaining through the next 4 or 8 years of the 45th President are slim. Indeed, the next president will likely make multiple appointments to the Court.

And it matters:

Had a President Kerry or President Gore appointed more liberal Justices instead of Chief Justice Roberts and Justice Alito, the Supreme Court probably would not have struck down Washington, D.C.'s gun control law in the Heller case; it would not have approved the constitutionality of the federal partial-birth abortion ban in Gonzales v. Carhart; it would not have struck down Seattle school district's affirmative action plan in Parents Involved; and it would not have struck corporate campaign finance limits in Citizens United or a key portion of the Voting Rights Act in Shelby County.

Daily Read: Chief Justice Roberts at Ten

The inimitable Linda Greenhouse in "A Chief Justice Without A Friend" notes that John Roberts is unpopular as he celebrates his decade on the bench.

I can’t think of a chief justice who has been so uniformly vilified by both left and right.

The attacks from the left are logical enough. It’s the fire from the right that merits closer observation than it has generally received. Sure, it’s titillating in a man-bites-dog sort of way. But it’s also revealing of an ideological transformation now underway in how an increasingly influential segment of the conservative elite views the role of courts.

A good quick read, with a link to The Nation special issue - - - The Case Against the Roberts Court - - - which is likewise worth a read.

 

Court Grants Review of Bias of Pennsylvania State Supreme Court Justice in Death Penalty Case

The Court has granted certiorari in Williams v. Pennsylvania on issues of due process and the Eighth Amendment revolving around former Chief Justice of the Pennsylvania Supreme Court Ronald Castille (pictured). 

via

Castille, who retired from the court when he reached the state mandatory retirement age, was elected in 1993, and retained in elections in 2003 and 2013.  Importantly, before his election to the bench, Castille worked in the district attorney's office for over 20 years, including being twice elected to the District Attorney position; he reportedly claimed to have "sent 45 people to death row."

One of those people on death row is Terrence Williams, the petitioner in Williams v. Pennyslvania.  Williams claims that it was a violation of due process and the Eighth Amendment for Justice Castille to deny the motion to recuse himself from consideration of Williams' petition for post conviction relief.  Williams contends that Castille, as a prosecutor, was personally involved in the case and the decision to seek the death penalty.  Williams' claim, moreover, is based on prosecutorial misconduct. 

Williams relies on Caperton v. Massey (2009) regarding judicial bias. Unlike the situation of Justice Benjamin in Caperton, Castille did not cast a "deciding vote" on the court.  [Nevertheless, Castille's concurring opinion is worth reading for its defensiveness].  Recognizing this distinction, Williams also relies on Atena Life Insurance v. Lavoie (1986), and notes there is a circuit split regarding bias when the biased decided is only one member of a multi-member tribunal.

Court Grants Certiorari in First Amendment Political Activity by Public Employee Case

The United States Supreme Court has granted certiorari in Heffernan v. Paterson in which the Third Circuit's opinion affirmed summary judgment for the City of Paterson against a First Amendment claim for retaliatory action against police officer Jeffrey Heffernan. 

At issue is whether the mistaken belief of a supervisor that an employee was engaging in political activity.  The police officer was seen picking up a mayoral campaign sign at the request of his "bedridden mother" to "replace a smaller one that had been stolen from her lawn."  Heffernan insisted that he was not involved in the campaign and actually did not support the same candidate as his mother.

The petition for certiorari argues that there is a split in the circuits on this issue.