Constitutional Law Prof Blog

Base Campaign Contribution Limit Challenge Headed to Full D.C. Circuit

Steven D. Schwinn, John Marshall Law School

The D.C. Circuit ruled today in Holmes v. FEC that a lower court erred in not certifying a challenge to federal base contribution limits to the en banc D.C. Circuit.

The ruling means that the full D.C. Circuit will take up the question whether federal base contribution limits violate the First Amendment.

The case arose when the plaintiffs challenged the federal base contribution limit of $2,600 "per election" as violating free speech. They wanted to contribute $5,200 to a congressional candidate in the general election, but the "per election" limit prohibited this. (They could have contributed $2,600 in the primary, then another $2,600 in the general, but they didn't want to contribute in the primary.) They argued that language in the plurality opinion in McCutcheon supported their claim: "Congress's selection of a $5,200 base limit [the combined limit for a primary and general election, according to the plaintiffs] indicates its belief that contributions of that amount or less do not create a cognizable risk of corruption."

The district court declined to certify the question to the D.C. Circuit, because the plaintiffs' argument contradicted "settled law," that is, Supreme Court precedent.

The D.C. Circuit reversed. The court said,

We therefore do not think a district court may decline to certify a constitutional question simply because the plaintiff is arguing against Supreme Court precedent so long as the plaintiff mounts a non-frivolous argument in favor of overturning that precedent. That the plaintiff will be fighting a losing battle in the lower courts does not necessarily make the question "obviously frivolous," or "wholly insubstantial," or "obviously without merit." The plaintiff has to raise the question to ensure that it is preserved for Supreme Court review. And certifying the question fulfills Section 30110's evident purpose of accelerating potential Supreme Court review.

At the same time, the court declined to order certification for a related Fifth Amendment claim against base limits. The court said that this claim was based on regulations, not the Act, and therefore not subject to certification.

Supreme Court Decides First Amendment Protects "Mistaken" Perception of Political Activity by Public Employee

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

In its relatively brief opinion in Heffernan v. City of Paterson, NJ, the Court decides that the First Amendment is applicable when a government employer takes an adverse employment action against an employee for perceived (but not actual) political activity.  Heffernan, a police officer, was demoted for his perceived political activity: he had decided to stay neutral but 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" and was therefore demoted.

The majority opinion, authored by Justice Breyer, began by noting that the First Amendment "generally prohibits"government officials from "dismissing or demoting an employee because of the employee’s engagement in constitutionally protected political activity" and posing the question of whether "the official’s factual mistake makes a critical legal difference." 

In determining that the factual mistake is not a critical legal difference, Breyer's 8 page opinion for the Court concludes that it is the "government's reason" that "counts."  Supporting this conclusion is the language of the First Amendment itself: 

Unlike, say, the Fourth Amendment, which begins by speaking of the “right of the people to be secure in their persons, houses, papers, and effects . . . ,” the First Amendment begins by focusing upon the activity of the Government. It says that “Congress shall make no law . . . abridging the freedom of speech.”

(This point was made by Justice Ginsburg in oral argument). Additionally, the conclusion focusing on the government's rationale supports the underlying rationale of the rule:

The constitutional harm at issue in the ordinary case consists in large part of discouraging employees—both the employee discharged (or demoted) and his or her colleagues—from engaging in protected activities . . . . The upshot is that a discharge or demotion based upon an employer’s belief that the employee has engaged in protected activity can cause the same kind, and degree, of constitutional harm whether that belief does or does not rest upon a factual mistake.

Finally, Breyer's opinion for the Court noted that the recognition of mistaken employer beliefs will not open the floodgates (or as the Court phrases it "impose significant costs on the employer"), because "the employee will, if anything, find it more difficult to prove that motive, for the employee will have to point to more than his own conduct to show an employer’s intent to discharge or to demote him for engaging in what the employer (mistakenly) believes to have been different (and protected) activities."

In remanding the case, the Court did recognize that Heffernan may have been dismissed under a "different and neutral policy," but did not express its views on that issue.

Dissenting, Justice Thomas joined by Justice Alito - - - in an opinion as long as the one for the Court - - - stressed that Heffernan did not have a constitutional right that had been violated: "The mere fact that the government has acted unconstitutionally does not necessarily result in the violation of an individual’s constitutional rights, even when that individual has been injured." 

In oral argument, Justice Alito had described the issue as being "like a law school hypothetical."  The Court, however, has decisively answered the question in favor of construing the First Amendment to prohibit government "wrongs" rather than requiring the actual exercise of  individual "rights."

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Divided Second Circuit Upholds New York's "Maintain an Office" Requirement for Nonresident Attorneys

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

In the divided panel opinion in Schoenefeld v. Schneiderman,  a Second Circuit panel majority upheld the constitutionality of a requirement that attorneys who practice law in New York but do not reside within the state be required to maintain an office in New York.

The statute, N.Y. Judiciary Law §470, provides:

A person, regularly admitted to practice as an attorney and counsellor, in the courts of record of this state, whose office for the transaction of law business is within the state, may practice as such attorney or counsellor, although he resides in an adjoining state.

Schoenefeld, admitted to practice in New York but who lived in New Jersey and maintained her main office in New Jersey, wished to practice law in New York without having the expense of a separate office in New York.  She challenged §470 on several constitutional grounds.  The district judge found that the statute violated the Privileges and Immunities Clause, Art. IV, §2, cl.1.   The lack of clarity in the statute caused the Second Circuit on appeal to certify the question of the "minimum requirements" to satisfy §470 to New York's highest court.  The New York Court of Appeals answered the certified question: §470 "requires nonresident attorneys to maintain a physical office in New York."

Syndicate and St. Paul Buildings, Highest Office Buildings in the World, New York City, 1920, via

Writing for the Second Circuit panel majority, Judge Reena Raggi, who was joined by Judge Susan Carney, concluded that §470 had no discriminatory or protectionist purpose.  Instead, §470 - - - with "its origins in an 1862 predecessor law" - - - was actually enacted to reverse a court ruling that had barred a nonresident attorney from practicing law at all given the difficulties of service of process.  Despite changes and recodifications, the majority concluded that there was no showing that the current §470 was "being maintained for a protectionist purpose."  Again, the majority found that §470 was enacted for "the nonprotectionist purpose of affording such attorneys a means to establish a physical presence in the state akin to that of resident attorneys, thereby eliminating a court‐identified service‐of‐process concern."

The majority relied in large part on the Supreme Court's unanimous 2013 decision in McBurney v. Young holding that a state can restrict its own freedom of information law, FOIA, to its own citizens without violating the Privileges and Immunities Clause. 

In his vigorous dissenting opinion, Judge Peter Hall argued that the real import of §470 is that resident attorneys need not maintain an office while nonresident attorneys must maintain an office, thus discriminating.  The next step in the analysis, Judge Hall contended, should be to consider the state's justification for such discrimination.  Judge Hall distinguished McBurney based on the "simple reason that the Virginia FOIA is not an economic regulation, nor does it directly regulate the right to pursue a common calling."  Hall's dissent criticized the majority for imposing a requirement of discriminatory intent as part of a prima facie case that would be appropriate under the Equal Protection Clause but is not under the Privileges and Immunities Clause. Moreover, Judge Hall concluded that New York's "proffered justifications for the in‐state office requirement— effectuating service of legal papers, facilitating regulatory oversight of nonresident attorneys’ fiduciary obligations, and making attorneys more accessible to New York’s courts—are plainly not sufficient."

Thus, New York can constitutionally compel attorneys who do not reside in New York to maintain a physical office in New York.

Court Upholds Arizona Redistricting Plan

Steven D. Schwinn, John Marshall Law School

A unanimous Supreme Court today upheld a redistricting plan drawn by the Arizona Independent Redistricting Commission that included an 8.8% population deviation in order to comply with nonretrogression under the Voting Rights Act.

The ruling in Harris v. Arizona Independent Redistricting Commission is a win for the controversial Independent Commission and its state legislative map. It's also a mark in favor of allowing relatively greater population deviations (up to 10%) to comply with the VRA. And the case reaffirms the 10% threshold for allowable population deviations under the one-person-one-vote principle.

This is the case where the Redistricting Commission took an initial cut at a state legislative map by drawing cookie-cutter boundaries that yielded a 4.07% population deviation. The Commission then tinkered with the boundaries in order to comply with nonretrogression (that is, to ensure that there was no diminution in the number of districts in which minority groups could elect their preferred candidate of choice) under Section 5 of the VRA (when that Section still had force, pre-Shelby County). The result was a second-draft map that complied with the VRA, but also yielded an 8% population deviation (increased over the 4.07% deviation in the first cut), and put in play a previously solid Republican district. The Commission voted 3-2 in favor of the revised plan, with the two Republican members dissenting.

A group of Arizona voters sued, arguing that the plan violated the one-person-one-vote rule, because the Commission increased the population deviation for partisan purposes.

The Court disagreed. Justice Breyer wrote for the unanimous Court that the plan didn't violate equal protection. Justice Breyer wrote that the plan fell within the presumptively allowable 10% population deviation for the one-person-one-vote rule, and that the plaintiffs therefore had to show that the deviation reflected the predominance of illegitimate reapportionment factors. But the plaintiffs couldn't meet their burden here. In particular, Justice Breyer wrote that the record reflected that the deviation was the result of the Commission's efforts to comply with the VRA by retaining the number of ability-to-elect districts in the state--a legitimate reapportionment factor.

Justice Breyer wrote that Shelby County had no bearing on this case, because it came down after the Commission issued its plan.

Court Says Congress Can Legislate to Impact Current Cases

Steven D. Schwinn, John Marshall Law School

The Supreme Court ruled today in Bank Markazi v. Peterson that Congress did not tread on the courts' territory in violation of the separation of powers by enacting a statute that ensured that the plaintiffs in an enforcement action would get the assets that they sought (and therefore win).

The ruling backs off the rule in United States v. Klein--that Congress can't legislate a rule of decision in a case--and thus gives somewhat wider berth to Congress (relative to Klein) to enact laws that impact currently pending cases. At the same time, however, the ruling reiterates familiar limits on Congress's authority over the judiciary.

This is the case in which over 1,000 victims of Iranian-sponsored terrorism and their families filed in the Southern District of New York to enforce their monetary judgments against Iran--through assets owned by Bank Markazi, the Central Bank of Iran, held in a New York bank account--for sponsoring terrorism.

While this claim was pending, Congress passed a law saying that, if a court makes specific findings, "a financial asset . . . shall be subject to execution . . . in order to satisfy any judgment to the extent of any compensatory damages awarded against Iran for damages for personal injury or death caused by" certain acts of terrorism. The law goes on to define available assets as "the financial assets that are identified in and the subject of proceedings in the United States District Court for the Southern District of New York in Peterson et al. v. Islamic Republic of Iran et al., Case No. 10 Civ. 4518 (BSJ) (GWG), that were restrained by restraining notices and levies secured by the plaintiffs in those proceedings."

In other words, the newly enacted law, 22 U.S.C. Sec. 8772, ensured that the plaintiffs in this case would get these assets, notwithstanding the Bank's defenses.

The Bank claimed that the law violated the separation of powers--in particular, that Congress overstepped by directing the outcome of a case, in violation of United States v. Klein.

But the Supreme Court disagreed. Justice Ginsburg wrote the opinion for all but Chief Justice Roberts and Justice Sotomayor (and Justice Thomas, for a part of the opinion). She wrote that Congress may amend the law and apply the amendment to pending cases, even when the amendment is outcome determinative. She then said that's exactly what Congress did here: it wrote a law that covers all the various post-judgment execution claims that were consolidated in this case. She said it did not create a "one-case-only regime."

Justice Ginsburg also wrote that the law related to foreign policy--an area where the courts traditionally defer to the President and Congress. "The Executive has historically made case-specific sovereign-immunity determinations to which courts have deferred. Any exercise by Congress and the President of control over claims against foreign governments, as well as foreign-government-owned property in the United States, is hardly a novelty."

Along the way, Justice Ginsburg backed off on Klein. She wrote that Klein has been called "a deeply puzzling decision," and that "[m]ore recent decisions, however, have made it clear that Klein does not inhibit Congress from "amend[ing] applicable law." At the same time, she reiterated familiar limits: "Necessarily, [the courts' authority] blocks Congress from 'requir[ing] federal courts to exercise the judicial power in a manner that Article III forbids," "Congress, no doubt, 'may not usurp a court's power to interpret and apply the law to the [circumstances] before it," and "our decisions place off limits to Congress 'vest[ing] review of the decisions of Article III courts in officials of the Executive Branch.'" "Congress, we have also held, may not 'retroactively comman[d] the federal courts to reopen final judgments." Plaut v. Spendthrift Farm, Inc.

Chief Justice Roberts, joined by Justice Sotomayor, dissented. He argued, in short, "[n]o less than if it had passed a law saying 'respondents win,' Congress has decided this case by enacting a bespoke statute tailored to this case that resolves the parties' specific legal disputes to guarantee respondents victory"--and therefore violates the separation of powers.

Fifth Circuit Finds Local Federal Rule Violates First Amendment as Applied to Attorney

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

In its relatively brief but important opinion in In re William Goode, the Fifth Circuit found that Western District of Louisiana Local Criminal Rule 53.5 (“L. Crim. R. 53.5”), violated the First Amendment as applied to Goode.

The rule provides:

During the trial of any criminal matter, including the period of selection of the jury, no lawyer associated with the prosecution or defense shall give or authorize any extrajudicial statement or interview, relating to the trial or the parties or issues in the trial, for dissemination by any means of public communication, except that the lawyer may quote from or refer without comment to public records of the court in the case.

In Goode's situation, he was an attorney "associated" with the defense although not defense counsel in the criminal case. Instead, he was assisting the two defendants, both of whom were also attorneys. 

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During the trial, one of the defendant attorneys  "suffered from a self-inflicted gunshot wound."  The prosecution stated it would not oppose a mistrial, but before the judge ordered a mistrial, Goode "gave interviews to two media outlets."  Goode contended he was under the belief that a mistrial would be granted and that a reporter had promised to hold the story until the mistrial was granted, although the story ran online before the mistrial was granted. The Chief Judge of the district later suspended Goode from practice in the district court for six months.

The Fifth Circuit discussed Gentile v. State Bar of Nevada (1991) as well as Fifth Circuit precedent that held that "prior restraints on trial participants must be narrowly tailored to only prohibit speech that has a “meaningful likelihood of materially impairing the court’s ability to conduct a fair trial.” and that the "prior restraint must also be the least restrictive means available."  The unanimous Fifth Circuit panel found that the application of the "expansive" Rule 53.5 that was applied to Goode was a prior restraint and was neither narrowly tailored nor the least restrictive means possible.

While the Fifth Circuit did not address the facial challenge and while Goode's situation has unique features, the Fifth Circuit's opinion casts the shadow of unconstitutionality on the local Rule 53.5.

Oral Argument Preview: The DAPA Challenge

Steven D. Schwinn, John Marshall Law School

The Supreme Court will hear oral arguments on Monday in United States v. Texas, the challenge to DAPA, the deferred action program for certain unauthorized aliens.The case involves two core issues: Does a state have standing to challenge DAPA; and does DAPA violate the APA or the Take Care Clause?

Here's my oral argument preview in the ABA Preview of United States Supreme Court Cases, with permission:

FACTS

On November 20, 2014, the Secretary of Homeland Security, Jeh Johnson, issued a memorandum (called “guidance” by the government) that announced “new policies for the use of deferred action” for certain aliens who are not removal priorities for the Department. The memo directed the U.S. Citizenship and Immigration Services (USCIS) “to establish a process . . . for exercising prosecutorial discretion through the use of deferred action, on a case-by-case basis,” for certain parents of U.S. citizens or lawful permanent residents. The process is called Deferred Action for Parents of Americans and Lawful Permanent Residents, or “DAPA.” To qualify, an applicant must (1) be the parent of a U.S. citizen or lawful permanent resident as of November 20, 2014; (2) have continuously resided in the United States since January 1, 2010, or before; (3) have been physically present here on November 20, 2014, and when applying for DAPA; (4) have no lawful immigration status on that date; (5) not fall within the Secretary’s enforcement priorities (which the Secretary set out in a companion memo, and which include removing aliens who are serious criminals and terrorists); and (6) “present no other factors that, in the exercise of discretion, make[] the grant of deferred action inappropriate.” The Secretary’s memo also expanded the criteria for deferred action under the earlier 2012 Deferred Action for Childhood Arrivals policy, or “DACA.”

The Secretary’s memo explained that DAPA would reach “hard-working people who have become integrated members of American society,” have not committed serious crimes, and “are extremely unlikely to be deported” given the Department’s “limited enforcement resources.” Moreover, it would advance “this Nation’s security and economic interests and make common sense, because [it] encourage[s] these people to come out of the shadows, submit to background checks, pay fees, apply for work authorization . . . and be counted.” The memo emphasized that DAPA does not establish any right to deferred action, and that deferred action “does not confer any form of legal status” and “may be terminated at any time at the agency’s discretion.”

Under longstanding federal law, which recognizes deferred action, an alien with deferred action may apply for work authorization based on economic need. In addition, an alien with deferred action may qualify for certain federal earned-benefit programs that come with lawful work, such as Social Security retirement and disability, Medicare, and railroad-worker programs. But an alien with deferred action is not eligible to receive food stamps, Supplemental Security Income, temporary aid for need families, and many other federal public benefits. And an alien with deferred action is not eligible for any “[s]tate or local public benefit,” although states may voluntarily extend certain benefits to aliens with deferred action. For example, Texas voluntarily permitted an alien with deferred action to apply for and receive a driver’s license, which Texas subsidized.

On December 3, 2014, Texas and other states sued the Department, seeking declaratory and injunctive relief against implementation of DAPA. The plaintiffs alleged that DAPA violated the Take Care Clause of the Constitution and the Administrative Procedures Act. The district court entered a nationwide preliminary injunction against implementation of DAPA.

A divided panel of the United States Court of Appeals for the Fifth Circuit affirmed. The court ruled that at least one plaintiff, Texas, had standing, because state law would require it to subsidize a driver’s license for an alien with deferred action under DAPA. The court also ruled that the plaintiffs were substantially likely to succeed on their claim that the Department should have used notice-and-comment rulemaking (and not a mere memo by the Director) to implement DAPA. Finally, the court ruled that DAPA was “manifestly contrary” to the Immigration and Naturalization Act.

This appeal followed.

CASE ANALYSIS

The case involves two principal issues. Let’s take them one at a time.

Standing

Under Article III of the Constitution, in order to bring this case in federal court, at least one state has to show (1) that it suffered an actual or imminent “injury in fact,” (2) that DAPA caused, or will cause, the injury, and (3) that the lawsuit will redress the injury. Moreover, in order to sue under the APA, the states’ interests have to fall within the “zone of interests” of the relevant statute, here the INA. The parties frame their arguments around these rules.

The government argues first that no state has Article III standing, because DAPA does not directly injure the states or require them to do anything. The government says that any injury that DAPA causes the states is only indirect and incidental, and that states cannot establish standing on the basis of an indirect or incidental injury from the operation of immigration law (which the Constitution assigns exclusively to the federal government). Moreover, the government asserts that the claimed injury here, Texas’s costs in subsidizing temporary visitor driver’s licenses for aliens, is entirely self-imposed. The government contends that recognizing these kinds of injuries would permit states to force cases over a wide swath of federal programs, essentially allowing states to challenge the federal government at nearly every turn.

The government argues next that the states cannot sue under the APA, because their interests are not within the zone of interests under the INA. The government says that the states’ asserted interests—“reserving jobs for those lawfully entitled to work” and “comment[ing] on administrative decisionmaking”—are different than their interests in Article III standing (discussed above), and that they therefore impermissibly mix-and-match their interests for standing and APA purposes. The government also claims that the states’ asserted interests for their APA challenge, if accepted, would effectively eliminate the zone-of-interest requirement under the INA and open the door to a federal suit by any state that is unhappy with federal immigration policy.

Finally, the government argues that the executive’s enforcement discretion, including the enforcement discretion reflected in DAPA, is traditionally immune from judicial review. The government says that the decision to permit aliens to work, as an attribute of enforcement discretion, is similarly unreviewable in court.

The states argue that they have Article III standing, because DAPA requires at least one of them, Texas, to incur costs in subsidizing driver’s licenses. The states say that this injury is legitimate and not manufactured (because the driver’s license subsidy was already on the books), and therefore satisfies the Article III injury requirement. The states contend that DAPA also requires them to incur costs related to healthcare, education, and law enforcement. And they assert that they have standing to protect their citizens from “labor-market distortions, such as those caused by granting work authorization to millions of unauthorized aliens.” The states contend that they are entitled to “special solicitude” in the standing analysis under Massachusetts v. EPA. 549 U.S. 497 (2007).

The states argue next that they can challenge DAPA under the APA, because their interests fall squarely within the zone of interests in the INA. They say that DAPA grants lawful presence and eligibility for work authorization and other benefits, the crux of their interests. They say moreover that the INA does not grant the Department discretion to do this. Thus, they claim that their interests fall squarely within the zone of interests protected by the INA.

DAPA’s Lawfulness

Under basic separation-of-powers principles, Congress is charged with making the law, and the President is charged with executing it. This means that administrative action like DAPA cannot violate the INA. Under the APA, it also means that DAPA must go through notice-and-comment rulemaking, if DAPA is a new “rule” (although DAPA need not go through notice-and-comment rulemaking if it is merely a new policy). Finally, under the Take Care Clause, it means that DAPA must be a proper execution of federal law, again the INA. The parties touch on each of these principles.

The government argues that the INA provides the Secretary ample authority for DAPA. The government claims that under the INA Congress has directed the Secretary to focus limited resources on removing serious criminals and securing the border, and that DAPA, in deferring action for aliens who are not priorities for removal, is perfectly consistent with this. The government claims that DAPA serves the additional purposes of “extending a measure of repose to individuals who have long and strong ties to the community” and encouraging hard work, on the books, so as to minimize competitive harm to American workers.

The government argues next that DAPA has deep historical roots. It says that the Department and the Immigration and Naturalization Service before it have adopted more than 20 similar policies in the last 50 years, deferring deportation for large numbers of aliens in defined categories. Since the early 1970s, each of these actions has also resulted in eligibility for work authorization—a practice that was codified in formal regulations in 1981. The government contends that Congress has repeatedly ratified the Department’s authority, with full knowledge of these policies.

Third, the government argues that the states are wrong to say that DAPA violates the INA. The government claims that the INA itself and past practice refute the states’ assertion that the Secretary can only authorize deferred action and work authorization for categories of aliens that Congress has specifically identified. Moreover, it claims that even the states agree that the Secretary could provide separate temporary reprieve for every one of the individuals covered by DAPA, so DAPA itself cannot be “too big.” And the government points out that longstanding regulations permit the Secretary to authorize lawful work for aliens covered by deferred action.

Fourth, the government argues that DAPA is simply a policy statement regarding how the Department will exercise discretionary authority—and not a binding rule that requires notice-and-comment procedures. Indeed, the government points out that no prior deferred action policy has been subject to notice-and-comment requirements. The government says that DAPA requires Department agents to exercise discretion in granting deferred action, and that DAPA is no less a “policy” than one that gives individual agents authority to be less forgiving for specific reasons in any individual case.

Finally, the government argues that the Take Care Clause provides the states with no basis for relief. The government claims that the Take Care arguments are simply dressed-up versions of their statutory arguments, and that in any event the Take Care Clause is nonjusticiable. But even if the Take Care Clause requires something different than the statutory analysis, and even if it is justiciable, the government says that the Secretary has complied with it by enforcing and executing the INA (for the reasons stated above).

The states argue that DAPA violates the INA. They say that Congress has to expressly authorize the executive to defer removal for whole categories of aliens, because this question is so central to the INA’s statutory scheme. But they claim that Congress has not done this. They also contend that DAPA flouts the 1996 amendments to immigration statutes that deny certain benefits to unlawfully present aliens whom the executive elects not to remove. And they say that DAPA would render meaningless Congress’s comprehensive framework, which “define[s] numerous categories of aliens that are entitled to or eligible for work authorization.”

The states argue next that DAPA is invalid, because it was promulgated without notice-and-comment procedures. The states claim that DAPA is a substantive binding rule, not a policy, and was therefore subject to notice-and-comment requirements. They say that the President compared DAPA to a military order and promised consequences for officials who defied it. They also say that it gives no discretion to Department officials in its enforcement. Moreover, the states contend that DAPA is a rule because it affects individual rights and obligations, using legislative-type criteria to determine whether an alien qualifies for substantial government benefits. The states assert that “[t]his change is immensely important to the Nation and requires at least public participation through notice-and-comment procedure.”

Finally, the states argue that DAPA violates the Take Care Clause. They claim that DAPA declares conduct that Congress has determined unlawful to be lawful. They say that this is precisely the kind of power grab that the Take Care Clause was designed to prevent.

SIGNIFICANCE

At its core, this case is about the meaning and sweep of DAPA. By the Secretary’s reckoning, DAPA is merely a policy that guides the discretion of Department agents in enforcing the INA—the same way that any Department policy might guide an agent’s discretion, well within the discretion authorized by the INA. But by the states’ reckoning, DAPA is a new and binding rule that contradicts the INA: it represents the executive’s effort to change the law, not simply enforce it.

To sort this out, the Court will look at the precise language of the INA and DAPA itself, of course. But it will also look to other indicia of congressional intent to enforce the INA. These may include things like congressional awareness of and acquiescence to longstanding Department regulations that seem to assume that the Department may use deferred action, and which grant benefits as a result of it. These may also include congressional appropriations, which amounted to $6 billion in 2016. This was enough to deport only a small portion of the estimated 11 million undocumented aliens currently living in the United States, thus strongly suggesting that Congress intended the Department not to remove large populations of unlawfully present aliens. (The government points out that the Department has recently been setting records for removals in a year, but still only removing about 440,000 in 2013, for example.) Finally, the Court will look at the Department’s prior deferred action policies, which at different times since 1960 covered undocumented Cuban nationals after the Cuban Revolution, undocumented spouses and children of aliens with legalized status, individuals who sought lawful status as battered spouses or victims of human trafficking, foreign students affected by Hurricane Katrina, widows and widowers of U.S. citizens who had no other avenue of immigration relief, and certain aliens who came to the U.S. as children.

Here’s one thing the Court won’t look at: the Department’s actual enforcement of DAPA. That’s because the states filed suit before the Department implemented DAPA, and so there is no record of Department enforcement of DAPA. The states claim that Department agents will implement DAPA much as they implemented DACA, and that under DACA agents did not exercise discretion in individual cases (suggesting that DACA and DAPA are new rules, and not merely policies guiding individual agent’s discretion).

Aside from the merits, the first issue in the case, standing, could be dispositive. It is not at all obvious that the states have standing under Court precedent. In perhaps the closest case, Massachusetts v. EPA, the Court held that the state had standing to challenge the EPA’s failure to regulate greenhouse gases, based on the state’s loss of coastline due to rising sea levels (due to increased greenhouse gases). But Massachusetts is hardly on all fours with this case. Still, it will likely play an important role in oral argument.

But it’s easy to think that these doctrinal issues are really just cover for underlying policy and political disputes. On the policy side, the case raises the important and contested questions of whether and how to deal with some of the 11 million unauthorized aliens in the United States. In particular: Should we protect certain classes of unauthorized aliens from immediate deportation for economic reasons (because they provide a net benefit to our economy), humanitarian reasons (to keep families together, for example), or just plain fairness reasons? The case also raises the important and contested question of who decides—the federal government, or the states. The Court answered that question unequivocally in favor of the federal government just four years ago in Arizona v. United States, 567 U.S. ___ (2012), the SB 1070 case. This case gives the Court another crack at it.

On the political side, the case is (obviously) yet another battle in the continuing war between Republicans and President Obama over immigration and executive authority. All twenty-six states that brought the case are led by Republican governors. (Yet at least one state that has a far more sizeable portion of the unauthorized alien population in the U.S., California, led by a Democrat, is notably absent from the suit.) Moreover, President Obama said that he initiated DACA and DAPA in the first place as a reaction to congressional (Republican) failure to take up immigration reform. The case is thus at the center of the ongoing dispute between a Democratic President who in the face of congressional intransigence has governed by executive order, and the Republican opposition that claims that this represents “executive overreach.”

Ninth Circuit Upholds CFPB in Action Against Attorney-Loan-Modifier

Steven D. Schwinn, John Marshall Law School

The Ninth Circuit ruled yesterday in CFPB v. Gordon that Consumer Financial Protection Bureau Chief Richard Cordray had authority and standing to bring an enforcement claim against Chance Gordon, a California attorney and putative provider of home loan modification services.

The ruling is a win for the hotly contested CFPB and Cordray's authority during the period after his recess appointment but before his Senate confirmation.

President Obama initially appointed Cordray by recess appointment on January 4, 2012--the same day that he appointed three individuals to the NLRB by recess appointment, an act that the Supreme Court ruled invalid in Noel Canning. President Obama later renominated Cordray, and he was confirmed by the Senate on July 16, 2013. A month and a half later, the CFPB issued a Notice of Ratification, ratifying all of Cordray's actions from January 4, 2012, through July 17, 2013.

The CFPB filed a civil enforcement action against Gordon in July 2012, apparently in this ratification period. Gordon moved to dismiss for lack of standing and for a violation of the Appointments Clause. A split panel of the Ninth Circuit rejected his claims.

The court ruled first that Cordray's appointment has nothing to do with Article III standing, because executive enforcement is independent of Article III. The court explained:

Here, Congress authorized the CFPB to bring actions in federal court to enforce certain consumer protection statutes and regulations. And with this authorization, the Executive Branch, through the CFPB, need not suffer a "particularized injury"--it is charged under Article II to enforce federal law. That its director was improperly appointed does not alter the Executive Branch's interest or power in having federal law enforced . . . . While the failure to have a properly confirmed director may raise Article II Appointments Clause issues, it does not implicate our Article III jurisdiction to hear this case.

Moreover, the court held that Cordray's ratification cures any Appointments Clause deficiencies that might otherwise destroy the CFPB's enforcement action against Gordon. In other words, Cordray ratified all his prior actions after his recess appointment but before his Senate confirmation, including the civil enforcement action against Gordon, and that solved any problems that he might have had for actions taken during that period.

Judge Ikuta dissented, arguing that because Cordray's recess appointment was invalid, "no one could claim the Executive's unique Article III standing. Because the plaintiff here lacked executive power and therefore lacked Article III standing, the district court was bound to dismiss the action."

Seventh Circuit Says Data-Breached Diners Have Standing to Sue Restaurant

Steven D. Schwinn, John Marshall Law School

The Seventh Circuit ruled yesterday in Lewert v. P.F. Chang's China Bistro, Inc. that restaurant-goers had standing to pursue their case against the restaurant chain for actions they took to protect themselves after the chain revealed that it had been the victim of a computer-system hack.

The ruling is a win for consumers insofar as it lets them get beyond the pleadings in data-breach cases (so long as they plead that they took measures to protect themselves and will suffer an increased chance of fraudulent charges or stolen identity). (The plaintiffs here now have a chance to move the case forward.) But it says nothing on the merits.

The case arose after P.F. Chang's announced that its computer system had been breached and that some consumer credit- and debit-card data had been stolen. At first, the restaurant didn't know the extent of the breach, so switched to a manual card-processing system at all locations around the country. Later, it announced that data was stolen from just 33 restaurants, including one in Schaumburg, Illinois.

The plaintiffs, diners at P.F. Chang's Northbrook, Illinois, location, worried that their information may have been stolen. One of the plaintiffs noticed fraudulent charges on his card soon after P.F. Chang's announcement; he cancelled his card and purchased an identity-theft-protection service. The other plaintiff did not have fraudulent charges, but he took extra time to monitor his credit-card statement and credit report. Both plaintiffs claimed that they suffered an increased risk of fraudulent charges and stolen identity.

The plaintiffs brought a class action, and P.F. Chang's moved to dismiss for lack of standing. The Seventh Circuit sided with the plaintiffs.

The court said that the plaintiffs' actions to protect themselves were sufficient harms to establish standing: the plaintiffs suffered action harms by taking precautionary steps to protect themselves, and they suffered imminent harms of increased chances of fraudulent charges and stolen identities.

As to causation, the court said that any questions--whether the data breach caused the plaintiffs' injuries--went to the merits. As to redressability, the court said that monetary relief could redress the harms.

California Appellate Court Finds State Teacher Tenure Statute Constitutional

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

In its opinion in Vergara v. California today, the Court of Appeal for the Second Appellate District of California reversed the conclusion of Los Angeles Superior Court Judge Rolf Treu that the state tenure statutes for public school teachers violate the California Constitution's provisions on equal protection and provision of education. California's so-called teacher tenure statutes challenged in the action are provisions of California's Education Code governing teacher employment, including the permanent employment statute (§44929.21(b)); dismissal statutes (§§ 44934;  44938(b)(l) and (2) and 44944); and a seniority statute, "Last In First Out" or "LIFO" statute (§44955).

In a nutshell, the appellate court found:

Plaintiffs failed to establish that the challenged statutes violate equal protection, primarily because they did not show that the statutes inevitably cause a certain group of students to receive an education inferior to the education received by other students. Although the statutes may lead to the hiring and retention of more ineffective teachers than a hypothetical alternative system would, the statutes do not address the assignment of teachers; instead, administrators—not the statutes—ultimately determine where teachers within a district are assigned to teach. Critically, plaintiffs failed to show that the statutes themselves make any certain group of students more likely to be taught by ineffective teachers than any other group of students.

Reading Lesson at a Dame School, by Elias Martin (1739–1818) via

The appellate court implied that the trial judge had misconstrued his constitutional task:

With no proper showing of a constitutional violation, the court is without power to strike down the challenged statutes. The court’s job is merely to determine whether the statutes are constitutional, not if they are “a good idea.” (McHugh v. Santa Monica Rent Control Bd. (1989) 49 Cal.3d 348, 388.) Additionally, our review is limited to the particular constitutional challenge that plaintiffs decided to bring. Plaintiffs brought a facial equal protection challenge, meaning they challenged the statutes themselves, not how the statutes are implemented in particular school districts. Since plaintiffs did not demonstrate that the statutes violate equal protection on their face, the judgment cannot be affirmed.

The appellate court's 36 page opinion contains a careful rehearsal of the evidence before the trial judge as well as a discussion of his opinion.  In its own analysis, the appellate court considered the plaintiffs' original contentions that:

the challenged statutes create an oversupply of grossly ineffective teachers because (i) the tenure statute’s probationary period is too short, preventing the identification of grossly ineffective teachers before the mandated deadline for reelection; (ii) when grossly ineffective tenured teachers are identified, it is functionally impossible to terminate them under the overly burdensome and complicated dismissal statutes; and (iii) when reductions-in-force are required, the statute requires the termination of junior, competent teachers while more senior, grossly ineffective teachers keep their jobs only because they have seniority. Plaintiffs argued, and the trial court agreed, that two distinct classes of students—Group 1 (an “unlucky subset” of students within the population of students at large) and Group 2 (poor and minority students)—were denied equal protection because the challenged statutes led members of these groups to be assigned to grossly ineffective teachers.

The unanimous panel found that there was no "identifiable class" for equal protection purposes:  the group of "unlucky students" who are allegedly harmed by being assigned to grossly ineffective teachers have only one defining characteristic - - - they are assigned to grossly ineffective teachers.  As for the second group - - - identified as poor and minority students - - - the appellate court found that there was insufficient causation for a facial constitutional violation: "the statutes do not differentiate by any distinguishing characteristic, including race or wealth."  While it is possible, the appellate court noted, that the plaintiffs could have shown that the implementation of the statutes inevitably resulted in "consequential assignment of disproportionately high numbers of grossly inefficient teachers to schools predominantly serving low-income and minority students," the plaintiffs here did not make such a showing.

While the appellate court recognized there were "deplorable staffing decisions made by some local administrators," this was not sufficient to support a facial challenge to teacher tenure statutes. 

The appellate decision is much better reasoned than the trial judge's opinion, which derided the "uber due process" provided by the statutes and did not elaborate on the facts and evidence.  It is likely to stand.

Ninth Circuit Rejects Latest Class Action Pick-Off Strategy

Steven D. Schwinn, John Marshall Law School

The Ninth Circuit ruled today in Chen v. Allstate Insurance that a defendant's unaccepted offer of full judgment on a plaintiff's individual claim does not moot the plaintiff's individual claim, or his class action.

The ruling means that plaintiff Florencio Pacleb's individual claim and his class-action complaint against Allstate can move forward at the district court. This is a significant win for Pacleb (and other Ninth Circuit class plaintiffs) and answers a question left open by the Supreme Court.

The case arose when Pacleb filed a class-action suit against Allstate for calls he received from the insurance company on his cell phone, in violation of the Telephone Consumer Protection Act. Before Pacleb moved for class certification (and shortly after the Supreme Court handed down Campbell-Ewald), Allstate tried to pick him off (and thus undermine his class action) by depositing full monetary judgment in escrow and promising to stop making calls to his cell phone. Allstate then moved to dismiss the case as moot.

Allstate's move was a clever exploitation of an open question from Campbell-Ewald. In that case, the Supreme Court held that "an unaccepted settlement offer has no force" and does not moot a claim. But the Court left open the question "whether the result would be different if a defendant deposits the full amount of the plaintiff's individual claim in an account payable to the plaintiff, and the court then enters judgment for the plaintiff in that amount." Allstate's move took up that open question.

But the Ninth Circuit didn't bite. The Ninth Circuit ruled first that Pacleb's individual claim wasn't moot, because he hadn't received full judgment. (The money was still in escrow, not in Pacleb's bank account.) The court went on to rule that circuit law allowed Pacleb to seek class certification, even if Allstate could fully satisfy Pacleb's individual claims. But the court said that even if circuit law didn't answer the question, language in Campbell-Ewald suggests that "when a defendant consents to judgment according complete relief on a named plaintiff's individual claims before certification, but fails to offer complete relief on the plaintiff's class claims, a court should not enter judgment on the individual claims, over the plaintiff's objection, before the plaintiff has had a fair opportunity to move for class certification."

In other words, a plaintiff's interest in class certification isn't satisfied by an offer of full judgment to the individual plaintiffs. And such an offer therefore doesn't moot the plaintiff's class claims.

The ruling is a victory for Pacleb and class plaintiffs in the Ninth Circuit (and maybe beyond), as it forecloses the latest pick-off gambit left open by the Supreme Court in Campbell-Ewald.

Tenth Circuit: Utah's Ban on Polygamous Cohabitation and Marriage Stands

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

The Tenth Circuit has ruled that the Browns - - - of Sister Wives reality television fame - - - cannot challenge Utah's ban on polygamous cohabitation and marriage under Article III judicial power constraints.  In its opinion in Brown v. Buhman, the unanimous three judge panel found that the matter was moot. 

Recall that federal district judge Clark Waddoups finalized his conclusion from his previous opinion that Utah's anti-bigamy statute is partially unconstitutional. The statute, Utah Code Ann. § 76-7-101, provides:

•             (1) A person is guilty of bigamy when, knowing he has a husband or wife or knowing the other person has a husband or wife, the person purports to marry another person or cohabits with another person.
•             (2) Bigamy is a felony of the third degree.
•             (3) It shall be a defense to bigamy that the accused reasonably believed he and the other person were legally eligible to remarry.

 [emphasis added].  Judge Waddoups concluded that the "the cohabitation prong does not survive rational basis review under the substantive due process analysis."  This analysis implicitly imported a type of equal protection analysis, with the judge concluding:

Adultery, including adulterous cohabitation, is not prosecuted. Religious cohabitation, however, is subject to prosecution at the limitless discretion of local and State prosecutors, despite a general policy not to prosecute religiously motivated polygamy. The court finds no rational basis to distinguish between the two, not least with regard to the State interest in protecting the institution of marriage.

On appeal, the Tenth Circuit panel held that the district judge should not have addressed the constitutional claims because the case was moot.  Even assuming the Browns had standing when the complaint was filed, any credible threat of prosecution was made moot by a Utah County Attorney's Office (UCAO) 2012 policy which stated that "the UCAO will prosecute only those who (1) induce a partner to marry through misrepresentation or (2) are suspected of committing a collateral crime such as fraud or abuse."  The opinion stated that nothing "in the record" suggested that Browns fit into this category and additionally, there was an affirmation from the defendant that "the UCAO had 'determined that no other prosecutable crimes related to the bigamy allegation have been or are being committed by the Browns in Utah County as of the date of this declaration. ' ”

The opinion found that the "voluntary cessation" exception to mootness was not applicable because that was intended to prevent gamesmanship: a government actor could simply reenact the challenged policy after the litigation is dismissed. 

Yet the problem, of course, is that the statute remains "on the books" and the policy is simply not to enforce it except in limited cases.  The court rejected all of the Browns' arguments that the UCAO statement did not moot the challenge to the constitutionality of the statute including a precedential one; the possibility that a new Utah County Attorney could enforce the statute; the failure of defendant, the present Utah County Attorney, to renounce the statute's constitutionality; and the tactical motives of the defendant, the present Utah County Attorney, in adopting the policy.  The court stated:

The first point misreads the case law, the second is speculative, the third is minimally relevant, and the fourth may actually assure compliance with the UCAO Policy because any steps to reconsider would almost certainly provoke a new lawsuit against him. Such steps also would damage Mr. Buhman’s credibility as a public official and might even expose him to prosecution for perjury and contempt of federal court for violating his declaration. Assessing the veracity of the UCAO Policy must account for all relevant factors, which together show no credible threat of prosecution of the Browns.

Thus, like other criminal statutes that are said to have fallen into "desuetude," the statute seems immune from constitutional challenge.

In a very brief section, the court does note that the plaintiffs no longer live in Utah, but have moved to Nevada, another rationale supporting mootness.  The Nevada move is discussed in the video below featuring some of the children involved.

 

 

 

 

Fifth Circuit Lets State AG Subpeona, Civil and Criminal Threats Against Google Stand

Steven D. Schwinn, John Marshall Law School

The Fifth Circuit ruled on Friday in Google v. Hood that a federal district court's injunction against Mississippi Attorney General James M. Hood III jumped the gun, and struck it. The ruling means that AG Hood's subpoena to Google remains live, and that he is not enjoined from bringing civil and criminal action against the web giant.

The case arose when AG Hood and certain other state AGs started expressing concerns that search engines weren't doing enough to stop copyright infringement, prescription drug and counterfeit product sales, and other "illegal and harmful" activity on the internet. Hood wrote to Google, and after some back-and-forth, issued a wide-ranging administrative subpoena, stating that there were "reasonable grounds to believe that Google Inc. may have violated . . . the Mississippi Consumer Protection Act."

Google sued in federal court, alleging that Hood's investigation violated Google's immunity under the Communications Decency Act, the Fourth Amendment, and the First Amendment rights of Google and its users, and seeking an injunction. The district court preliminarily enjoined Hood from enforcing the administrative subpoena and "bringing a civil or criminal charge against Google under Mississippi law for making accessible third-party content to Internet users (as threatened)."

Without touching the merits (even for likelihood of success, under the preliminary injunction standard), the Fifth Circuit struck the injunction. The court said that Google could bring the case in federal court, and that the district court did not err in not abstaining under Younger. But the court went on to say that Google's federal lawsuit was not ripe. That's because the subpoena was non-self-executing, and Hood had no independent authority to enforce it. (Instead, he has to enforce it through injunctive relief and a contempt motion in state court.) As to Hood's threats of civil or criminal enforcement: the court said that these were too "fuzzily defined," and that the court could not "on the present record predict what conduct Hood might one day try to prosecute under Mississippi law." In short: Google's case wasn't ripe, and the district court jumped the gun in issuing the injunction.

The ruling means that Hood can go ahead and try to enforce his subpoena in state court. He can also initiate any civil and criminal actions that Mississippi might allow. But when he does, he'll face Google's immunity and constitutional defenses in state court, and a likely second try in federal court.

American Immigration Council on DAPA Challenge

Check out the American Immigration Council's backgrounder on United States v. Texas, the case challenging DAPA, scheduled for oral arguments at the Court next Monday, April 18.

First Circuit: Same-Sex Marriage Ruling in Obergefell Applies to Puerto Rico

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

In a brief per curiam opinion, a panel of the First Circuit essentially reversed the ruling of Senior United States District Judge for the District of Puerto Rico Juan Perez-Gimenez that denied the joint motion for summary judgment in Conde-Vidal v. Garcia-Padilla regarding a challenge to Puerto Rico's same-sex marriage ban.

The panel stated:

The district court's ruling errs in so many respects that it is hard to know where to begin. The constitutional rights at issue here are the rights to due process and equal protection, as protected by both the Fourteenth and Fifth Amendments to the United States Constitution. Obergefell v. Hodges; United States v. Windsor. Those rights have already been incorporated as to Puerto Rico. Examining Bd. Of Eng'rs, Architects & Surveyors v. Flores de Otero (1976). And even if they had not, then the district court would have been able to decide whether they should be. See Flores de Otero.

In any event, for present purposes we need not gild the lily.  Our prior mandate was clear . . . 

[citations and footnote omitted].

After quoting its previous opinion, the panel then addressed the procedural posture of the case, noting that the district court "compounded its error (and signaled a lack of confidence in its actions), by failing to enter a final judgment to enable an appeal in ordinary course."  Both parties therefore sought a writ of mandamus, which the court granted and additionally "remitted" the case to the district court "to be assigned randomly by the clerk to a different judge to enter judgment in favor of the Petitioners promptly, and to conduct any further proceedings necessary in this action."

The First Circuit did not explicitly discuss the district judge's conclusions regarding Puerto Rico's status and his argument that under The Insular Cases (1901), territorial incorporation of specific rights is questionable.  But  the First Circuit did cite contrary authority and made clear its disagreement.  The intensity of the disagreement is also made evident by the First Circuit's somewhat unusual instruction that Senior United States District Judge for the District of Puerto Rico Juan Perez-Gimenez be removed from the case.

 

Ninth Circuit Finds Arizona's Denial of Drivers Licenses to DACA Recipients Unconstitutional

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

In its opinion in Arizona Dream Act Coalition v. Brewer, the Ninth Circuit has found unconstitutional an Executive Order by Arizona Governor Jan Brewer that prohibits recipients of the federal program called the “Deferred Action for Childhood Arrivals” (DACA) from obtaining driver’s licenses by using Employment Authorization Documents as proof of their authorized presence in the United States. 

Recall that the Ninth Circuit had earlier reversed the denial of a preliminary injunction finding that the plaintiffs had a substantial likelihood of success on their equal protection claim.  The United States Supreme denied Arizona's application for a stay. On remand, the district judge had found that the plaintiffs prevailed on their equal protection claim, applying a rational basis standard of review, and entered a permanent injunction. 

In this appeal by the Arizona state defendants, the same Ninth Circuit panel of judges - - - Harry Pregerson, Marsha S. Berzon, and Morgan Christen - - - in the opinion again authored by Judge Pregerson, not surprisingly found equal protection "problems" but decided to resolve the case on the "nonconstitutional grounds" of preemption, explaining (in footnote 5),

Though preemption principles are rooted in the Supremacy Clause, this court has previously applied the principle that preemption does not implicate a constitutional question for purposes of constitutional avoidance.

Yet the panel's opinion spends more than half of its analysis on the equal protection question.  The court's opinion states that the judges "remain of the view" that "Arizona's policy may well fail even rational basis review" and rejected all of Arizona's asserted government interests.  Moreover, the opinion stated that it "bears noting, once again" that "the record does suggest" that Arizona's policy was motivated by "a dogged animus against DACA recipients," and as the Supreme Court has "made very clear that such animus cannot constitute a legitimate state interest, and has cautioned against sowing the seeds of prejudice," citing cases including United States v. Windsor.

The opinion continued

Given the formidable Equal Protection concerns Arizona’s policy raises, we turn to a preemption analysis as an alternative to resting our decision on the Equal Protection Clause. Doing so, we conclude that Arizona’s policy encroaches on the exclusive federal authority to create immigration classifications and so is displaced by the INA.

While the court's final opinion is of questionable precedential value concerning the equal protection conclusion, the previous opinion's equal protection conclusion remains of high precedential value, and certainly the ultimate conclusion - - - here based on the Supremacy Clause preemption - - - is definitive. 

Court Can't Second-Guess Prosecution's Charging Decisions

Steven D. Schwinn, John Marshall Law School

The D.C. Circuit ruled today in U.S. v. Fokker Services B.V. that a federal district court cannot deny an exclusion of time under the Speedy Trial Act for a deferred prosecution agreement (DPA) because the court disagrees with the government's charging decisions. The ruling, a victory for both parties, reverses the district court's decision on separation-of-powers grounds and remands the case.

The case arose when the parties asked the court for an exclusion of time under the Speedy Trial Act in order to allow the defendant to meet the government's conditions under the DPA. (The DPA provided that the government would defer prosecution so long as Fokker met certain conditions over an 18-month period. But if Fokker failed to meet the conditions after 18 months, the Speedy Trial Act would have prevented the government to pursue prosecution. So the parties moved the court for an exclusion of time under the Act.) The court denied the motion, saying that it disagreed with the government's decision to charge only the corporation, and not its individual officers, with violations. Both parties appealed.

The D.C. Circuit reversed. The court said that "[t]he Constitution allocates primacy in criminal charging decisions to the Executive Branch," and that "the Judiciary generally lacks authority to second-guess those Executive determinations, much less to impose its own charging preference." So when the court denied an exclusion of time because of its disagreement with the government's charging decision, it exceeded its own authority and intruded into the prerogative of the Executive.

The court said that "we construe [the Speedy Trial Act] in a manner that preserves the Executive's long-settled primacy over charging decisions and that denies courts substantial power to impose their own charging preferences."

The case now goes back to the district court for an order excluding time under the Speedy Trial Act and implementation of the DPA.

O'Neill on Roberts's Thayerian Justice

Check out Prof. Tim O'Neill's (John Marshall) excellent piece in the Cal. Law Review on Chief Justice Roberts's approach to deference in the Obamacare case, NFIB v. Sebelius: Harlan on My Mind: Chief Justice Roberts and the Affordable Care Act.

O'Neill notes that "Chief Justice Roberts has never been shy about finding acts of Congress to be unconstitutional," but that he nevertheless extolled the virtues of deference to the legislature and ultimately upheld the individual mandate in NFIB. O'Neill asks: Where did this "newly minted Thayerian justice" come from?

This essay will attempt to answer that question. It will begin by further examining Posner's article and the reasons he provided for the death of Thayerian review. It will then turn to an examination of one justice in particular whom Chief Justice Roberts has cited as his model: the younger Justice John Marshall Harlan, perhaps the last justice on the Court who exhibited Thayer-like restraint. It will conclude by contending that when faced with the most important case of his judicial career, Roberts took a Thayer-like approach that might have been similar to the approach his judicial model, Justice Harlan, would have taken. Thayer-like restraint may be dead, but it appears to have come back to life for at least one decision on June 28, 2012.

Court Says States Can Use Total Population to Draw Legislative Districts

Steven D. Schwinn, John Marshall Law School

A unanimous Supreme Court ruled today in Evenwel v. Abbott that states can use total population--and need not use voter-eligible population--to comply with the one-person-one-vote principle in drawing legislative districts.

The ruling is a setback for a group of conservative Texas voters that argued that states must use voter-eligible population in drawing legislative districts. Using voter-eligible population (as compared to total population) would benefit rural, and conservative, areas in a state like Texas, because urban areas contain a higher proportion of non-voter-eligible persons (who would count in measuring total population, but not voter-eligible population).

The case arose when a group of Texas voters argued that their votes were diluted as compared to the votes of eligible voters in other state senate districts, thus violating the one-person-one-vote principle. The state drew its state senate map based on total population, but the voters claimed that this resulted in inequalities. In particular, the voters claimed that their senate district contained a far greater eligible-voter population than other districts of equal total population. (The state senate map had a deviation between districts of 8.04 percent when measured by total population--the population that the state used in drawing the maps. This deviation is within the 10 percent deviation range that is presumptively permissible under the one-person-one-vote principle. But when measured by voter-eligible population, the map had a deviation of 40 percent--well outside that presumptively permissible point.) The voters argued that the state must use voter-eligible population in drawing districts.

The unanimous Supreme Court disagreed. Justice Ginsburg, writing for the Court, said that constitutional history, precedent, and practice show that a state may use total population in drawing legislative districts. In short: we've always done it this way, and we've said it's OK, so it's OK.

The Court declined to say whether a state may use voter-eligible population.

Federal Judge Enjoins Mississippi's Same-Sex Couple Adoption Ban as Unconstitutional

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

In his opinion  in Campaign for Southern Equality v. Mississippi Department of Human Services (DHS), United States District Judge Daniel Jordan III found that Mississippi Code §93-17-3(5) prohibiting "adoption by couples of the same gender" violates the Equal Protection Clause and ordered that the Executive Director of DHS is preliminarily enjoined from enforcing the statute.

The majority of the 28 page opinion is devoted to matters of standing and the Eleventh Amendment relevant to the multiple plaintiffs and multiple defendants, including judges.  However, Judge Jordan did find that the individual plaintiffs had standing and DHS was an appropriate defendant.

 On his discussion of likelihood to prevail on the merits, Judge Jordan wrote in full:

Obergefell [v. Hodges] held that bans on gay marriage violate the due-process and equal-protection clauses. It is the equal-protection component of the opinion that is relevant in the present dispute over Mississippi’s ban on gay adoptions. Under traditional equal-protection analysis, a law that does not “target[ ] a suspect class” or involve a fundamental right will be upheld, “so long as it bears a rational relation to some legitimate end.” Romer v. Evans, 517 U.S. 620, 631 (1996). Conversely, “if a classification does target a suspect class or impact a fundamental right, it will be strictly scrutinized and upheld only if it is precisely tailored to further a compelling government interest.” Sonnier v. Quarterman, 476 F.3d 349, 368 (5th Cir. 2007) (citation omitted).

In this case, Defendants argue that rational-basis review applies. But Obergefell made no reference to that or any other test in its equal-protection analysis. That omission must have been consciously made given the Chief Justice’s full-throated dissent. 135 S. Ct. at 2623 (Roberts, C.J., dissenting) (“Absent from this portion of the opinion, however, is anything resembling our usual framework for deciding equal protection cases . . . .”).

While the majority’s approach could cause confusion if applied in lower courts to future cases involving marriage-related benefits, it evidences the majority’s intent for sweeping change. For example, the majority clearly holds that marriage itself is a fundamental right when addressing the due-process issue. Id. at 2602. In the equal-protection context, that would require strict scrutiny. But the opinion also addresses the benefits of marriage, noting that marriage and those varied rights associated with it are recognized as a “unified whole.” Id. at 2600. And it further states that “the marriage laws enforced by the respondents are in essence unequal: same-sex couples are denied all the benefits afforded to opposite-sex couples and are barred from exercising a fundamental right.” Id. at 2604 (emphasis added).

Of course the Court did not state whether these other benefits are fundamental rights or whether gays are a suspect class. Had the classification not been suspect and the benefits not fundamental, then rational-basis review would have followed. It did not. Instead, it seems clear the Court applied something greater than rational-basis review. Indeed, the majority never discusses the states’ reasons for adopting their bans on gay marriage and never mentions the word “rational.”

While it may be hard to discern a precise test, the Court extended its holding to marriage- related benefits—which includes the right to adopt. And it did so despite those who urged restraint while marriage-related-benefits cases worked their way through the lower courts. According to the majority, “Were the Court to stay its hand to allow slower, case-by-case determination of the required availability of specific public benefits to same-sex couples, it still would deny gays and lesbians many rights and responsibilities intertwined with marriage.” Id. at 2606 (emphasis added).

The full impact of that statement was not lost on the minority. Chief Justice Roberts first took issue with the majority’s failure to “note with precision which laws petitioners have challenged.” Id. at 2623 (Roberts, C.J., dissenting). He then criticized the majority for jumping the gun on marriage-related cases that might otherwise develop:

Although [the majority] discuss[es] some of the ancillary legal benefits that accompany marriage, such as hospital visitation rights and recognition of spousal status on official documents, petitioners’ lawsuits target the laws defining marriage generally rather than those allocating benefits specifically. . . . Of course, those more selective claims will not arise now that the Court has taken the drastic step of requiring every State to license and recognize marriages between same-sex couples.

Id. at 2623–24 (Roberts, C.J., dissenting) (emphasis added).

In sum, the majority opinion foreclosed litigation over laws interfering with the right to marry and “rights and responsibilities intertwined with marriage.” Id. at 2606. It also seems highly unlikely that the same court that held a state cannot ban gay marriage because it would deny benefits—expressly including the right to adopt—would then conclude that married gay couples can be denied that very same benefit.

Obergefell obviously reflects conflicting judicial philosophies. While an understanding of those positions is necessary for this ruling, it is not this Court’s place nor intent to criticize either approach. The majority of the United States Supreme Court dictates the law of the land, and lower courts are bound to follow it. In this case, that means that section 93-17-3(5) violates the Equal Protection Clause of the United States Constitution.

 The judge's interpretation of Obergefell v. Hodges interestingly focuses on the dissent of Chief Justice Roberts to explain the doctrine of Kennedy's opinion for the Court, a phenomenon familiar from the use of Justice Scalia's dissents in the same-sex marriage litigation.