Constitutional Law Prof Blog

Congressional Reps Lack Standing to Challenge Districting Plan

Steven D. Schwinn, John Marshall Law School

A unanimous Supreme Court ruled today in Wittman v. Personhubalah that three members of Congress from Virginia lacked standing to appeal a federal court's rejection of the state's districting plan. The ruling means that the district court's decision stays in place, and that districting plan designed by a court-appointed special master and approved by the court now sets the lines for Virginia's congressional districts.

In this up-and-down, politically charged case, the Court not only avoided a thorny underlying question of race-based districting (and all the politics that go with it), but it also avoided the hardest standing issues in favor of resolving the case unanimously on narrower standing grounds.

The case involves the state's 2012 redistricting plan, which packed black voters into a certain congressional district. Sponsors of the measure said that they did this in order to comply with the one-person-one-vote principle and to comply with nonretrogression under Section 5 of the Voting Rights Act. A district court struck the plan (twice) as a racial gerrymander, and the state declined to appeal. But Republican members of Congress, who intervened on the side of the state, tried to take the case to the Supreme Court. (In the meantime, a court-appointed special master drew a new district map, and the court approved it.)

The Supreme Court rejected the appeal for lack of standing. The Court said that one member of Congress, who challenged the district court's ruling because it would have made it harder for him to get elected in his current district, lacked standing because he was already running, and would continue to run (irrespective of the Court's ruling), in another district. In other words, that member failed to show that a Court ruling would redress his harm. The Court said that two other members of Congress, who challenged the district court's ruling for the same reason, "have not identified record evidence establishing their alleged harm."

The Court dodged the harder standing issue--whether a representative has been sufficiently harmed based on district lines that would make it less likely that he or she could get elected.

The Court also dodged the underlying issue, whether a race impermissibly dominated when a state's redistricting plan packed black voters into a district for the stated reasons to comply with one-person-one-vote and non-retrogression. The last time the Court took up a similar question, almost exactly a year ago, in Alabama Legislative Black Caucus v. Alabama, the Court also avoided ruling squarely on the merits. Instead, the Court outlined some guiding principles and remanded the case for further proceedings.

Justice Breyer wrote the opinion for the unanimous Court.

Supreme Court Rules in Favor of Death Row Inmate on Batson Racial Challenge to Jury Selection

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

In an opinion by Chief Justice Roberts in Foster v. Chatman, the Court reversed the finding on the Georgia courts that death row inmate Timothy Foster did not demonstrate the type of purposeful discrimination in jury selection to substantiate an Equal Protection Clause violation as required under  Batson v. Kentucky (1986).  

Recall  that in 1987 an all-white jury convicted Timothy Tyrone Foster, a "poor, black, intellectually compromised eighteen year old" of the murder of an elderly white woman.  At trial, one black potential juror was removed for cause, and the prosecutors removed all four of the remaining black prospective jurors by peremptory strike, and proffered race-neutral reasons when defense counsel raised a challenge under the then-recent case of  Batson.  The judge rejected defense counsel's argument that the race-neutral reasons were pretexual and denied the Batson challenge.  The Georgia courts affirmed.

Almost twenty years later, pursuant to a request under the state open records act, Foster gained access to the prosecution team's jury selection notes, which included highlighting the black potential jurors (image at right), circling the word "black" as an answer to the race question on the juror questionnaire, identifying the black potential jurors as B#1, B#2, and B#3 in the notes, and a draft affidavit by the prosecution investigator stating "“if we had to pick a black juror then I recommend that [Marilyn] Garrett be one of the jurors; with a big doubt still remaining.”  (The affidavit was originally submitted to the court with all mentions of race excised). 

In today's relatively brief opinion - - - 25 pages - - - Chief Justice Roberts carefully recited the facts and then focused on the materials in the "prosecution file."  The Court concluded:

The contents of the prosecution’s file, however, plainly belie the State’s claim that it exercised its strikes in a “color-blind” manner.  The sheer number of references to race in that file is arresting. The State, however, claims that things are not quite as bad as they seem. The focus on black prospective jurors, it contends, does not indicate any attempt to exclude them from the jury. It instead reflects an effort to ensure that the State was “thoughtful and non-discriminatory in [its] consideration of black prospective jurors [and] to develop and maintain detailed information on those prospective jurors in order to properly defend against any suggestion that decisions regarding [its] selections were pretextual.” Batson after all, had come down only months before Foster’s trial. The prosecutors, according to the State, were uncertain what sort of showing might be demanded of them and wanted to be prepared.

This argument falls flat. To begin, it “reeks of afterthought,” [citation omitted] having never before been made in the nearly 30-year history of this litigation: not in the trial court, not in the state habeas court, and not even in the State’s brief in opposition to Foster’s petition for certiorari. In addition, the focus on race in the prosecution’s file plainly demonstrates a concerted effort to keep black prospective jurors off the jury. The State argues that it “was actively seeking a black juror.” But this claim is not credible. An “N” appeared next to each of the black prospective jurors’ names on the jury venire list. An “N” was also noted next to the name of each black prospective juror on the list of the 42 qualified prospective jurors; each of those names also appeared on the “definite NO’s” list. And a draft affidavit from the prosecution’s investigator stated his view that “[i]f it comes down to having to pick one of the black jurors, [Marilyn] Garrett, might be okay.” Such references are inconsistent with attempts to “actively see[k]” a black juror.

The State’s new argument today does not dissuade us from the conclusion that its prosecutors were motivated in substantial part by race when they struck [potential jurors] Garrett and Hood from the jury 30 years ago. Two peremptory strikes on the basis of race are two more than the Constitution allows.

[citations to record omitted].

Only Justices Alito and Thomas did not join Roberts's opinion for the Court; Alito to write a separate concurring opinion and Thomas to write a dissenting opinion.  Alito's concurring opinion states its purpose as to "explain my understanding of the role of state law in the proceedings that must be held on remand." For Alito, while the Georgia Supreme Court is "bound to accept" the Court's evaluation of the federal constitutional question that there was an Equal Protection Clause violation under Batson, "whether that conclusion justifies relief under state res judicata law is a matter for that court to decide."  Alito notes that the Court is "evidencing a predilection" for granting review of state-court decisions denying postconviction relief, a "trend" he argues is inconsistent with the States' "legitimate interest in structuring their systems of postconviction review in a way that militates against repetitive litigation and endless delay."  Alito's opinion only vaguely alludes to the claim that the Batson evidence was not made available to Foster.  As for Thomas, his dissenting opinion stresses that the trial court observed the jury selection "firsthand" and "its evaluation of the prosecution's credibility" is "certainly far better than this Court's 30 years later."  Thomas's opinion also argues that the "new evidence" has "limited probative value" and is "no excuse" for the Court's reversal of the state court's "credibility determinations."

Nevertheless, the Court's clear majority (of six) conclude that the prosecution violated the Equal Protection Clause when it engineered an all white jury to convict and sentence Timothy Foster.

 

Court Puts a Halt on Kobach's Latest Effort to Restrict Voter Registration in Kansas

Steven D. Schwinn, John Marshall Law School

Judge Julie A. Robinson (D. Kansas) granted a preliminary injunction and halted Kansas's requirement that motor-voter applicants provide proof of citizenship when they register to vote (along with their driver's license application) in federal elections.

The ruling halts Kansas Secretary of State Chris Kobach's latest effort to restrict voter registration in that state. It also requires the state to register about 18,000 voters whose registrations were cancelled or put on hold for failure to provide proof of citizenship. At the same time, it allows the state to use a proof-of-citizenship requirement for registration for state elections. Kobach will appeal.

The Kansas law requires applicants for a driver's license and for voter registration to submit proof of citizenship. But the National Voter Registration Act, Section 5, says that every application for a driver's license "shall serve as an application for voter registration with respect to elections for Federal office." It goes on to say that a state "may require only the minimum amount of information necessary to . . . enable State election officials to assess the eligibility of that applicant and to administer voter registration and other parts of the election process."

Judge Robinson focused on the "minimum amount" language and ruled that Kansas's requirement didn't meet it. In particular, she said that the evidence didn't support that Kansas needed proof of citizenship, because the registration form already required an applicant to attest to citizenship and to sign the form. She said that the attestation requirement was plenty sufficient for the state to ensure that an applicant was qualified. (She noted that there wasn't really a problem with noncitizens registering, anyway, and that the proof-of-citizenship requirement was applied in a pretty sloppily.)

Judge Robinson rejected the state's argument that this would lead to two different registration forms--one for state elections (which would require proof of citizenship) and another for federal elections (which would not). She said that this wouldn't result in two different sets of electors, just two different sets of requirements that would lead to the same result. And in any event it was a problem of the state's own creation.

The upshot is that Judge Robinson held that the NVRA preempted Kansas's proof-of-citizenship requirement under the Elections Clause and temporarily enjoined enforcement of the proof-of-citizenship requirement for motor-voter applicants for federal elections.

If the case sounds familiar, that's because it is--or almost is. The Supreme Court ruled in 2013 in Arizona v. Inter Tribal Council of Arizona that the state couldn't require proof of citizenship for the federal mail-in form for the same reason: the NVRA preempted state law under the Elections Clause. The NVRA provision in that case--for the mail-in registration option, not the motor-voter option--was different than the provision in this case, so Arizona didn't direct the result here. Still, the NVRA provision at issue here--the "minimum amount" language--led to the same outcome.

Court Remands Spokeo, on Concrete Harm and Standing

Steven D. Schwinn, John Marshall Law School

The Supreme Court today vacated and remanded Spokeo v. Robins, the case testing whether Congress can create standing for a plaintiff who suffered no concrete harm. We last posted on the case here.

The Court said no. It held that "Article III standing requires a concrete injury even in the context of a statutory violation" (emphasis added), but then sent the case back for determination whether there was a concrete injury in this case.

The ruling makes clear that if Robins, the plaintiff, can show a concrete harm, he will have standing. But it makes equally clear that Congress cannot simply create standing by authorizing a new individual cause of action. A plaintiff still has to show a particularized and concrete injury.

The case involves the congressionally-created individual cause of action under the Fair Credit Reporting Act. Under the FCRA, Congress granted adversely affected individuals a right to sue reporting agencies for failure to "follow reasonable procedures to assure maximum possible accuracy of the information concerning the individual about whom the report relates." Robins sued Spokeo under the provision, arguing that Spokeo posted incorrect information about him on its website. The Ninth Circuit held that Robins had standing.

The Supreme Court today vacated that decision and remanded. Justice Alito wrote for the Court and held that standing requires both a "particularized" injury and a "concrete" injury. The Ninth Circuit analyzed whether Robins's injury was particularized, but not whether it was concrete. Justice Alito wrote that a procedural harm--like the one here, because the FCRA establishes a procedure for reporting agencies to follow--could create a concrete injury, but the Ninth Circuit didn't analyze this in Robins's case. Therefore, the Court remanded to the Ninth Circuit to determine whether Robins sufficiently alleged a concrete harm.

At the same time, Justice Alito made clear that Congress could "elevat[e] to the status of legally cognizable injuries concrete, de facto injuries that were previously inadequate in law." But if so, a plaintiff still has to sufficiently allege both particularized and concrete injuries to meet the Article III standing requirement. This means that a plaintiff alleging a procedural injury alone wouldn't have standing, but a plaintiff alleging a procedural injury with a concrete and particularized harm would.

Congress' role in identifying and elevating intangible harms does not mean that a plaintiff automatically satisfies the injury-in-fact requirement whenever a statute grants a person a statutory right and purports to authorize that person to vindicate that right. Article III standing requires a concrete injury even in the context of a statutory violation.

Justice Thomas concurred and reached the same result by drawing on the difference between suits vindicating private rights and suits vindicating public rights. (Justice Thomas's "public rights" are probably broader than procedural claims like Robins's, and so this approach is probably more restrictive on standing.)

Justice Ginsburg dissented, joined by Justice Sotomayor. She argued that Robins sufficiently alleged a concrete harm, and that remand wasn't necessary.

 

Dodging Merits, Court Sends Contraception Mandate Cases Back to Circuits

Steven D. Schwinn, John Marshall Law School

The Supreme Court today issued a per curiam opinion in Zubik v. Burwell, dodging the question whether the government's accommodation to its contraception mandate under the ACA violates the Religious Freedom Restoration Act, and remanding the case to give the parties a chance to settle in a way that would satisfy everybody's interests. Here's our last post on the case.

The ruling means that religious nonprofits and the government will have a chance to work out their differences and arrive at an accommodation that would both (1) "accommodate[] petitioners' religious exercise" and (2) "ensur[e] that women covered by petitioners' health plans 'receive full and equal health coverage, including contraceptive coverage.'" But the parties will do this separately in the Third, Fifth, Tenth, and D.C. Circuits, leading to the possibility that the results will be different, and possibly come back to the Supreme Court next Term.

Whatever happens in the lower courts, however, today's ruling virtual ensures that the issue won't resurface for a ruling at the Supreme Court before the fall elections.

Today's result came about after the Court asked the parties, post-argument, to brief whether "contraceptive coverage could be provided to petitioners' employees, through petitioners' insurance companies, without any such notice from petitioners." Both parties said this could happen. In particular, the non-profits said that their religious freedom wouldn't be infringed if they didn't have to do anything "more than contract for a plan that does not include coverage for some or all forms of contraception," even if their employees would receive free contraception coverage from the same insurance company. The government, for its part, said that it could modify its accommodation and still ensure that women get seamless contraceptive coverage.

The Court was quite careful to say that this is not a ruling on the merits.

Justice Sotomayor, joined by Justice Ginsburg, concurred, underscoring that this isn't a ruling on the merits--or even a signal on the merits--and that lower courts would be wrong to interpret it as such. She also underscored the Court's statements that the parties could fashion an accommodation seamlessly--that is, without establishing a new, separate policy for contraception.

The ruling sends the cases back to the lower courts, gives everyone a chance to figure out how to accommodate everyone's interests, and puts the issue off until after the fall elections (at least).

District Judge Says Obamacare Reimbursements are Invalid

Steven D. Schwinn, John Marshall Law School

Judge Rosemary Collyer (D.D.C.) ruled today that the Obama Administration spent money on reimbursements to insurers on the ACA exchanges without a valid congressional appropriation. Judge Collyer enjoined any further reimbursements to insurers until a valid appropriation is in place, but she stayed that injunction pending appeal.

Because of the stay, the ruling will have no immediate effect on government subsidies to insurers (and thus no immediate effect on the overall ACA, reductions in cost-sharing for certain purchasers on exchanges, or any other feature of the Act). But if Judge Collyer's ruling is upheld on appeal, and if Congress fails to specifically appropriate funds for Section 1402 reimbursements, or if the stay is lifted, this could deal a significant blow to the ACA. That's because the Act would require exchange insurers to provide a cost-sharing break to certain purchasers on the exchange, but the government wouldn't be able to reimburse the insurers for those costs, as the Act assumes. This could drive up costs, or drive insurers off the exchanges, or both--in any event, undermining the goals of the ACA.

The case involves Section 1402 of the ACA, which provides reimbursements to insurers on the ACA exchanges. Those reimbursements are designed to off-set reductions in deductibles, co-pays, and other cost-sharing expenses that the ACA requires exchange insurers to provide to lower-income insurance purchasers on an exchange. In other words, the ACA requires exchange insurers to cut cost-sharing costs for certain purchasers; and Section 1402 authorizes the government to reimburse insurers for those cuts.

But Congress didn't specifically appropriate funding for Section 1402. The administration nevertheless provided reimbursements on the theories that 1402 reimbursements are part of the integrated package that makes the ACA work, and that 1402 appropriations are covered in appropriations for other provisions in the Act.

Judge Collyer rejected these arguments. In particular, she wrote that Section 1402 is separate and distinct from other portions of the Act and requires its own, specific appropriation--not an inferred appropriation, based on a holistic reading of the Act, or based on appropriations for other features of the Act. (Behind these legal arguments is the idea that everyone understood that spending for Section 1402 reimbursements would be covered by appropriations for other portions of the Act. But "everyone understood" doesn't get very far in court.)

Moreover, she said that the government's attempts to leverage King v. Burwell to argue that Section 1402 funding is a necessary part of an integrated ACA fall flat:

This case is fundamentally different from King v. Burwell. There, the phrase "established by the State" . . . became "not so clear" when it was "read in context." . . . Simply put, the statute could not function if interpreted literally; it had to be saved from itself. . . .

The problem the Secretaries have tried to solve here is very different: it is a failure to appropriate, not a failure in drafting. Congress's subsequent inaction, not the text of the ACA, is what prompts the Secretaries to force the elephant into the mousehole.

Judge Collyer's ruling is obvious not the end of this matter: the government will surely appeal. In the meantime, her stay (alone) should allow government continued spending on insurer reimbursements, and thus (alone) won't have any significant impact on the ACA.

Judge Collyer earlier ruled that the House of Representatives had standing to bring this case, but that it lacked standing to challenge another administration act, delay of time when employers had to provide minimum health insurance to employees.

 

D.C. Circuit Rules Against Serbian PM Supporter in Defamation Suit

Steven D. Schwinn, John Marshall Law School

The D.C. Circuit ruled in Jankovic v. International Crisis Group that a supporter of former Serbian Prime Minister Zoran Djindjic failed to make out a defamation case against the International Crisis Group for critical statements in an ICG report.

The ruling means that plaintiff Milan Jankovic's case against the ICG is dismissed. (Jankovic is also known as Philip Zepter.)

Zepter, a prominent Serbian businessman, sued the ICG for defamation after the organization published a report that said that Zepter was a member of the "New Serbian Oligarchy" and that he was "associated with the Milosevic regime and benefited from it directly." The ICG report also said that individuals like Zepter continued to be in positions of power and to enjoy access to public resources, and that few of the "crony companies" had been subject to legal action, despite promises by post-Milosevic reformers. The district court concluded that a reasonable reader could construe the statements as saying that Zepter was a crony of Milosevic and supported the regime in exchange for favorable treatment.

As an initial matter, the D.C. Circuit applied its three-part rule and concluded that Zepter was a limited-purpose public figure. The court said that (1) the controversy was public, (2) Zepter played a significant role in it, and (3) the defamatory statement was germane to Zepter's participation. As to (2), the court said that "[t]he evidence . . . shows that [Zepter] was an outspoken supporter, financial backer, and advisor of Prime Minister Djindjic [who] paid over $100,000 to a lobbyist to support [Djindjic's] effort to improve relations between the United States and Serbia." "The evidence shows that Zepter had voluntarily thrust himself into ensuring that Serbia underwent reforms in the post-Milosevic era."

If there seems to be a disconnect between Zepter's role as a Djindjic supporter and a Milosevic crony, here's what the court said: "Yet even if Zepter was an important figure in the Serbian reform effort mainly due to his relationship with Prime Minister Djindjic, his relationship to Milosevic is relevant to Zepter's role in the controversy. Linking Zepter to Milosevic would be relevant to understanding Zepter's role and why he wanted to be involved in the reform effort led by Prime Minister Djindjic."

The court went on to say that Zepter failed to show evidence of actual malice. "What is still missing is evidence that ICG had 'serious doubts' about the truth of the defamatory statement or that it published the statement with a high degree of awareness of its probable falsity, such that ICG acted with reckless disregard for the statement's truth."

The ruling ends Zepter's case against the ICG.

Alabama Chief Justice Roy Moore Charged with Judicial Misconduct Based on Same-Sex Marriage Rulings

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

The continuing saga of the controversial Chief Justice of the Alabama Supreme Court, Justice Roy S. Moore, has taken another turn with a complaint against him filed by the Judicial Inquiry Commission of the State of Alabama, in the special Court of the Judiciary. [While the entire complaint is almost 300 pages, more than 250 pages are devoted to the 17 appendixes of supporting documents including opinions and letters].

As the complaint notes, this is not the first time that Justice Roy Moore has been before the Court of the Judiciary: the court removed him from office in 2003 for violation of the Alabama Canons of Judicial Ethics for failure to obey an injunction from a federal district court.  (He was re-elected in 2013.) While that earlier controversy revolved around the placement of the Ten Commandments in the courthouse, the present one concerns Justice Moore's actions on same-sex marriage.  As the complaint summarizes it, Chief Justice Moore's pertinent conduct "involves the interplay of four cases":

• Searcy v. Strange, before the federal district court, finding Alabama's same-sex marriage ban unconstitutional in January 2015;
• Strawser v. Strange, before the federal district court, reiterating the previous finding and making a direct order in February 2015, after the United States Supreme Court had refused to grant a stay of the earlier Order. 
• Obergefell v. Hodges, decided by the United States Supreme Court and requiring states to grant same-sex marriages;
• Ex parte State ex rel Alabama Policy Institute (API) (March 2015), and the certificate of judgment and dismissal of petitions on March 4, 2016.

 The complaint gives a good chronology of the various events which have been contentious.  As we previously noted, the Southern Poverty Law Center filed a judicial ethics complaint after Chief Justice Moore penned a letter to the Governor arguing that the state should not - - - and need not - - - comply with the federal order on same-sex marriage.

One of the more interesting aspects of the ethics charges is this:

On January 6, 2016—despite the United States Supreme Court's ruling in Obergefell, despite the United States District Court's injunction against all Alabama probate judges that specifically enjoined them from obeying any contrary order of the Alabama Supreme Court, and despite the Eleventh Circuit's October 20, 2015 order recognizing the abrogation of API by Obergefell—Chief Justice Moore, under the guise of his administrative authority as Chief Justice, unilaterally issued an Administrative Order to all probate judges that they continue to have a ministerial duty under API to enforce the Alabama marriage laws against same-sex couples.   His Administrative Order states in part:

IT IS ORDERED AND DIRECTED THAT: Until further decision by the Alabama Supreme Court, the existing orders of the Alabama Supreme Court that Alabama probate judges have a ministerial duty not to issue any marriage license contrary to the Alabama sanctity of Marriage Amendment or the Alabama Marriage Protection Act remain in full force and effect.

[paragraph 38].  In paragraph 3, the complaint stated "Significant to the context of this matter is that the vast majority of probate judges in this state are not licensed to practice law."  However, the probate judges would be bound by the Canons of Judicial Ethics; the complaint alleges that Moore "flagrantly disregarded and abused his authority as chief administrative officer of Alabama's judicial branch by "ordering or appearing to order" the probate judges not to obey the federal district court's injunction and thus ordering the probate judges to commit violations of the Canons of Judicial Ethics "knowingly subjecting them to potential prosecution and removal from office."

Thus, it is not only Moore's own refusal to abide by federal interpretations of the United States Constitution, but his ordering of subordinates to do so that are included in the six specific charges against him, all of which involve alleged violations of Canons 1, 2, and 3 of the Alabama Canons of Judicial Ethics, which, broadly stated are:

• Canon 1.     A judge should uphold the integrity and independence of the judiciary.
• Canon 2.     A judge should avoid impropriety and the appearance of impropriety in all his activities.
• Canon 3.     A judge should perform the duties of his office impartially and diligently.

Chief Justice Moore has reportedly been suspended, pending the decision of the Alabama Court of the Judiciary, which is composed of judges, lawyers, and lay persons, and has the power to remove the Justice.  Interestingly, appeal from the Alabama Court of the Judiciary is to Supreme Court of Alabama.

 

 

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Ninth Circuit Says Arizona Identity-Theft-in-Employment Law Not Preempted

The Ninth Circuit ruled earlier this week that the federal Immigration Reform and Control Act did not on its face preempt Arizona's laws banning the use of a false identity to obtain employment.

The ruling reverses a lower court's preliminary injunction against the Arizona laws (allowing them to go into effect), but leaves open the possibility that they could be preempted as applied in the next round of motions.

The case involves Arizona's efforts to regulate the use of identity theft to obtain employment. The state's bans were designed in part to clamp down on unauthorized aliens' use identity theft to obtain employment. But they were also designed to clamp down on U.S. citizens' use of identity theft to obtain employment.

The plaintiffs in the case--an advocacy organization and individual unauthorized aliens--sued, arguing that the federal IRCA preempted Arizona's laws, based on the Court's analysis striking much of S.B. 1070 in Arizona. (The Court in Arizona held that the state could not criminalize an unauthorized alien for working, because the state law would pose an obstacle to the federal objective, codified in the federal act, to criminalize only the employer (and not the employee).) The plaintiffs moved for a preliminary injunction based on their facial preemption claim, and the district court granted it.

The Ninth Circuit reversed. The court held that IRCA didn't likely facially preempt Arizona's laws, because even under Arizona the laws could be applied in a constitutional way. In particular, Arizona's laws applied to U.S. citizens using identity theft to obtain employment, too--and nothing in federal law prohibits that. This constitutional application of Arizona's laws meant that they couldn't be facially preempted by IRCA, even if an application of the laws to unauthorized aliens would be preempted under Arizona.

The court noted that the Supreme Court hasn't squarely decided whether the facial-challenge standard in Salerno applied to preemption claims, or if a lower standard applied. (Salerno says that in order to succeed on a facial challenge a plaintiff has to show that "no set of circumstances exists under which the Act would be invalid." That's a high bar.) Without guidance from the Court, the Ninth Circuit applied Salerno, consistent with circuit law.

The ruling is a setback for the plaintiffs. But it apparently leaves open the possibility that a court could hold that federal law preempts Arizona's laws as applied to unauthorized aliens. More to come . . . .

Update: DOJ Sends Letter to North Carolina re: Anti-LGBT HB2

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

The Department of Justice (DOJ) has sent a letter to North Carolina Governor Pat McCrory (pictured below) advising him that both he and the state of North Carolina are in violation of Title VII because of the controversial HB2 statute.  The letter focuses on Title VII, but also informs the Govern that the DOJ has also sent a letter to the North Carolina Department of Safety and the University of North Carolina similarly notifying them that they have engaged in violations of Title VII, as well as Title IX and the Violence Against Women Reauthorization Act.

Recall that the law, entitled "An Act to provide for single-sex multiple occupancy bathroom and changing facilities in schools and public agencies and to create statewide consistency in regulation of employment and public accommodations," was challenged in late March, a week after it was enacted, on various grounds, including the Equal Protection Clause.

The DOJ letter gives Governor McCrory until the close of business on May 9 to respond.

 

Congressional Research Service on Supreme Court Nominee Merrick Garland

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

Congressional Research Service Reports are almost always a terrific resource and this new one - - - Judge Merrick Garland: His Jurisprudence and Potential Impact on the Supreme Court  by Andrew Nolan, Kate M. Manuel, and Brandon J. Murrill - - - is no exception.  At almost 80 pages, with numerous footnotes, as well as two tables and an appendix, it is a wealth of information and analysis.

For example, here's an excerpt regarding Garland's views on campaign finance and the First Amendment:

While serving on the D.C. Circuit, Judge Garland has ruled in a number of major free speech cases. In particular, because the D.C. Circuit has exclusive jurisdiction over certain election law appeals,454 the bulk of these matters have involved free speech issues arising in the context of campaign finance regulations and rules governing political parties.455 Perhaps most significantly, Judge Garland wrote the opinion for a unanimous en banc court in Wagner v. FEC,456 upholding the prohibition on campaign contributions by certain federal government contractors457 against a challenge under the First Amendment and the Equal Protection clause of the Fifth Amendment.. . . Perhaps revealing aspects of Judge Garland’s views on the constitutionality of campaign finance regulation more broadly, the opinion deferred to Congress’s judgment on how best to serve the government’s interests. . . . .  In contrast, judicial deference to congressional determinations has arguably not been as evident in the Supreme Court’s more recent campaign finance jurisprudence.463 At the same time, because of the unanimity of the Wagner decision and the decision’s relatively narrow scope, it may be difficult to draw any firm conclusions regarding Judge Garland’s views on judicial deference toward congressional determinations respecting campaign restrictions from the Wagner decision, in and of itself.

Nonetheless, in another context, Judge Garland generally took a favorable view of the regulation of federal lobbyists. Specifically, in National Association of Manufacturers (NAM) v. Taylor,464 he authored a unanimous opinion rejecting a First Amendment challenge to a federal lobbying disclosure law. The court found no evidence of harassment connected to lobbying disclosures465 that might justify more skepticism with regard to the disclosure requirements, and, in a display of deference to Congress arguably like that in Wagner, ultimately concluded that there was “no reason why Congress cannot enact a scheme that plausibly yields a significant portion of the information it seeks.”466

On the other hand, during Judge Garland’s tenure on the D.C. Circuit, the appellate court issued a well-known campaign finance ruling that resulted in the establishment of super PACs, political committees that spend independently of any candidate or party and are permitted to receive unlimited contributions.467 In SpeechNow.org v. FEC,468 Judge Garland joined, but did not author, a unanimous en banc opinion holding that limits on contributions to groups that make only independent expenditures are unconstitutional.469

 [footnote text omitted].

Other sections relating to the constitution include the Religion Clauses, Second Amendment, Separation of Powers, Federalism, Substantive Due Process, and Criminal Law and Procedure.

While the Report cautions "that, at least as a historical matter, attempting to predict how particular Supreme Court nominees may approach their work on the High Court based on their previous experience is a task fraught with uncertainty," since Garland's nomination there has been reference to his opinions on the DC Circuit. 

This CRS Report provides a wealth of information should Garland's nomination be subject to Senate hearings.