Constitutional Law Prof Blog

Call for Papers: Separation of Powers: A Global Constitutional Dialogue

Check out the call for papers for an exciting Symposium on The Separation of Powers: A Global Constitutional Dialogue on May 22, 2017, at the University of Milan.

The topic is inspired by Professor Giovanni Bognetti's (U. Milan) book, La Separazione dei Poteri.

The conveners are Prof. Richard Albert (Boston College), Dr. Antonia Baraggia (U. Milan), Prof. Cristina Fasone (U. Rome), and Prof. Luca Pietro Vanoni (U. Milan).

The Call for Papers is here; proposals are due by January 15, 2017, to [email protected]. The full-day Symposium will be held entirely in English.

Second Circuit Says Plaintiff Has Standing for Some, but Not All, Truth-In-Lending Procedural Violations

Steven D. Schwinn, John Marshall Law School

The Second Circuit ruled today that a class representative had standing to challenge a creditor's failure to disclose certain requirements under the Truth In Lending Act, but lacked standing to challenge other failures to disclose.

The ruling means that two of the plaintiff's claims are dismissed for lack of standing. The court dismissed the other two on the merits.

The court's ruling applies last Term's Spokeo v. Robins, dealing with a plaintiff's ability to challenge a defendant's failure to comply with "procedural" statutory requirements, absent a more traditional injury. The Court in Spokeo held that a plaintiff who seeks to challenge a defendant's failure to comply with a statute also has to allege and show a concrete injury in order to show Article III standing. (The statutory violation is called a "procedural violation," because the statute in Spokeo (and this case) required the defendant to follow certain procedures--in particular, to disclose certain things to consumers. The Court in Spokeo said that sometimes those procedural violations also come with a concrete harm, and sometimes they don't. A plaintiff has to plead and show that they do.)

The case arose when Abigail Strubel sued a credit-card issuer for failing to make four disclosures required by TILA: (1) that cardholders wishing to stop payment on an automatic payment plan had to satisfy certain obligations; (2) that the bank was statutorily obliged not only to acknowledge billing error claims within 30 days of receipt but also to advise of any corrections made during that time; (3) that certain identified rights pertained only to disputed credit card purchases for which full payment had not yet been made, and did not apply to cash advances or checks that accessed credit card accounts; and (4) that consumers dissatisfied with a credit card purchase had to contact the creditor in writing or electronically.

The court held that Strubel had standing to challenge 3 and 4, but not 1 and 2.

As a starting point, here's what the court said about Spokeo:

Thus, we understand Spokeo, and the cases cited therein, to instruct that an alleged procedural violation can by itself manifest concrete injury where Congress conferred the procedural right to protect a plaintiff's concrete interests and where the procedural violation presents a "risk of real harm" to that concrete interest. But even where Congress has accorded procedural rights to protect a concrete interest, a plaintiff may fail to demonstrate concrete injury where violation of the procedure at issue presents no material risk of harm to that underlying interest.

As to 3 and 4, the court said that Strubel sufficiently demonstrated a concrete interest in "avoid[ing] the uninformed use of credit," "a core object of TILA." It said that a "consumer not given notice of his obligations is likely not to satisfy them and, thereby, unwittingly to lose the very credit rights that the law affords to him." The court went on to dismiss these claims on the merits.

As to 1 and 2, the court said that Strubel didn't show a concrete interest, because (as to 1) the creditor had no automatic payment plan when Strubel had her card and (as to 2) Strubel never had any reason to report a billing error (which would have triggered the creditor's obligation to "advise of corrections." In other words, because the conditions for violating the underlying requirements were absent, the creditor's failure to notify Strubel of the requirements couldn't have caused any concrete harm. The court dismissed these claims for lack of standing.

The court noted that a different plaintiff could have standing to challenge 1 and 2, so long as the plaintiff could also show a concrete harm. The court also noted that the CFPB can enforce these provisions independently.

Seventh Circuit Issues Mixed Ruling in Important Prisoner-Rights Case

Steven D. Schwinn, John Marshall Law School

The Seventh Circuit today dismissed a state prisoner's First Amendment claim, but ruled that his Eighth Amendment claim can go forward.

Each part of the ruling is important: the free speech ruling creates a circuit split; and the Eighth Amendment ruling implicates questions of supervisor liability for civil rights violations and access to justice for victims--issues now before the Supreme Court (in a different context).

The case arose when state prisoner Seyon Haywood alleged that his auto mechanic teacher attacked him. Guards charged Haywood with making a false statement, and a disciplinary panel found him guilty and sentenced him to two-month's segregation and revoked one month of good-time credit.

Haywood filed a federal civil rights case against the warden, alleging that his punishment violated his free speech rights, and that his segregated confinement violated the Eighth Amendment.

The Seventh Circuit dismissed the First Amendment claim. The court ruled that under Heck v. Humphrey and Edwards v. Balisok, Haywood couldn't bring a Section 1983 case for relief that would necessarily imply the invalidity of his disciplinary sentence, at least until he successfully challenged that disciplinary sentence. The court rejected Haywood's argument that Heck and Edwards don't apply, because he disavowed any challenge to the duration of his confinement. Haywood's argument drew on a Second Circuit ruling, Peralta v. Vasquez, which said just that. The Seventh Circuit's rejection of Haywood's claim sets up a circuit split on the question whether a prisoner can bring a 1983 case without successfully challenging a sentence, if the prisoner waives that challenge.

As to the Eighth Amendment claim, the court held that Haywood produced sufficient evidence to show that the warden (the only defendant in the case) was deliberately indifferent to Haywood's conditions of confinement to satisfy Ashcroft v. Iqbal and Farmer v. Brennan for direct (not vicarious) liability.

Judge Easterbrook dissented on this latter point. He argued that Haywood only showed that the warden knew of the conditions of his confinement, and, under Iqbal, knowledge is not enough. Judge Easterbrook also noted that the Supreme Court will weigh in on this soon enough, in the consolidated Turkmen cases, testing whether former AG Ashcroft and FBI Director Mueller, among others, can be held liable for detention of alien detainees at the Metropolitan Detention Center in New York, soon after 9/11.

Speaking of Electoral College Voting . . . Delahunty on the Uniform Faithless Electors Act

Prof. Robert Delahunty (St. Thomas) argues in his Cardozo De Novo piece that the Uniform Faithless Electors Act is unconstitutional. That Act, enacted in several states, says that a "faithless elector" ballot cannot be counted, and that a "faithless elector" immediately vacates the office of elector when he or she submits the "faithless" ballot. This creates a vacancy that the legislature can fill with a "faithful elector."

Delahunty argues that this runs afoul of Article II, Section 1, and the First Amendment. Read it to see why.

Kerr on Why Electors Shouldn't Choose Clinton

Orin Kerr replies to Lawrence Lessig in this Volokh Conspiracy post. (H/t Cliff Scott-Rudnick.) In short:

[I]f [electors should exercise independent judgment], it's hard to see how electors would be exercising their independent judgment by deferring to the popular vote. That's especially so because they would be deferring to the popular vote in other states that didn't even vote for them as electors.

. . . It's hard to have electors follow an ancient principle that gives them independent judgment and yet simultaneously follow a newer principle [one-person, one-vote] that takes their judgment away. The two ideas don't readily mix.

More broadly, I would think that any proposal for how electors should vote should be settled before an election rather than offered to resolve an election that already occurred.

Daily Reminder: Of Flag Burning and Loss of Citizenship for Criminal Conviction

The United States Supreme Court has held that flag burning as expressive speech is protected by the First Amendment and that loss of citizenship is not a constitutional punishment for a crime.

In Texas v. Johnson (1989), the Court declared:

If there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable. . . . In short, nothing in our precedents suggests that a State may foster its own view of the flag by prohibiting expressive conduct relating to it.. . . There is, moreover, no indication -- either in the text of the Constitution or in our cases interpreting it -- that a separate juridical category exists for the American flag alone. Indeed, we would not be surprised to learn that the persons who framed our Constitution and wrote the Amendment that we now construe were not known for their reverence for the Union Jack. The First Amendment does not guarantee that other concepts virtually sacred to our Nation as a whole -- such as the principle that discrimination on the basis of race is odious and destructive -- will go unquestioned in the marketplace of ideas. . . .

We are tempted to say, in fact, that the flag's deservedly cherished place in our community will be strengthened, not weakened, by our holding today. Our decision is a reaffirmation of the principles of freedom and inclusiveness that the flag best reflects, and of the conviction that our toleration of criticism such as Johnson's is a sign and source of our strength. Indeed, one of the proudest images of our flag, the one immortalized in our own national anthem, is of the bombardment it survived at Fort McHenry. It is the Nation's resilience, not its rigidity, that Texas sees reflected in the flag -- and it is that resilience that we reassert today.
The way to preserve the flag's special role is not to punish those who feel differently about these matters. It is to persuade them that they are wrong.

To courageous, self-reliant men, with confidence in the power of free and fearless reasoning applied through the processes of popular government, no danger flowing from speech can be deemed clear and present unless the incidence of the evil apprehended is so imminent that it may befall before there is opportunity for full discussion. If there be time to expose through discussion the falsehood and fallacies, to avert the evil by the processes of education, the remedy to bee applied is more speech, not enforced silence.

Whitney v. California(1927) (Brandeis, J., concurring). And, precisely because it is our flag that is involved, one's response to the flag-burner may exploit the uniquely persuasive power of the flag itself. We can imagine no more appropriate response to burning a flag than waving one's own, no better way to counter a flag burner's message than by saluting the flag that burns, no surer means of preserving the dignity even of the flag that burned than by -- as one witness here did -- according its remains a respectful burial. We do not consecrate the flag by punishing its desecration, for in doing so we dilute the freedom that this cherished emblem represents.

During the oral argument in Texas v. Johnson, the late Justice Scalia, who joined the Court's opinion, expressed scorn for the notion that the flag should be insulated from the First Amendment protections of speech. In a colloquy with the attorney for the State of Texas, Justice Scalia wondered if Texas could similarly criminalize desecration of the state flower, the blue bonnet.  Scalia then remarked:

Well, how do you pick out what to protect?

I mean, you know, if I had to pick between the Constitution and the flag, I might well go with the Constitution.

As for the constitutionality of  "loss of citizenship" as punishment for a criminal violation, the United States Supreme Court, in Trop v. Dulles (1958), declared that "Citizenship is not a license that expires upon misbehavior."  In considering a statute that revoked citizenship for desertion by a member of the armed forces, the Court stated that the

use of denationalization as a punishment is barred by the Eighth Amendment. There may be involved no physical mistreatment, no primitive torture. There is instead the total destruction of the individual's status in organized society. It is a form of punishment more primitive than torture, for it destroys for the individual the political existence that was centuries in the development. The punishment strips the citizen of his status in the national and international political community. His very existence is at the sufferance of the country in which he happens to find himself. While any one country may accord him some rights, and presumably as long as he remained in this country he would enjoy the limited rights of an alien, no country need do so because he is stateless. Furthermore, his enjoyment of even the limited rights of an alien might be subject to termination at any time by reason of deportation. In short, the expatriate has lost the right to have rights.

This punishment is offensive to cardinal principles for which the Constitution stands. It subjects the individual to a fate of ever-increasing fear and distress. He knows not what discriminations may be established against him, what proscriptions may be directed against him, and when and for what cause his existence in his native land may be terminated. He may be subject to banishment, a fate universally decried by civilized people. He is stateless, a condition deplored in the international community of democracies. It is no answer to suggest that all the disastrous consequences of this fate may not be brought to bear on a stateless person. The threat makes the punishment obnoxious. 

The civilized nations of the world are in virtual unanimity that statelessness is not to be imposed as punishment for crime.

[footnotes omitted].

Thus it seems that the president-elect's sentiment is at odds with our constitutional precedent.

Nobody should be allowed to burn the American flag - if they do, there must be consequences - perhaps loss of citizenship or year in jail!

— Donald J. Trump (@realDonaldTrump) November 29, 2016

Complaint and TRO Motion Filed on Behalf of Standing Rock Water Protectors

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

A complaint alleging violations of the First and Fourth Amendments by North Dakota officials has been filed on behalf of "water protectors" at the Dakota Access Pipeline (DAPL) protest at Standing Rock.  The plaintiffs in Dundon v. Kirchmeier have also filed a motion and memo for a Temporary Restraining Order "enjoining Defendants from curtailing their First and Fourth Amendment rights by using highly dangerous weaponry, including Specialty Impact Munitions (SIM, also known as Kinetic Impact Projectiles or KIP), explosive “blast” grenades, other chemical agent devices, and a water cannon and water hoses in freezing temperatures, to quell protests and prayer ceremonies associated with opposition to the Dakota Access Pipeline (DAPL).

As to the First Amendment, the plaintiffs allege that the defendants have sought to eliminate protected First Amendment activity in a public forum.  Additionally, even if there were an "unlawful assembly" not protected by the First Amendment, the defendants violated the Fourth Amendment's prohibition of excessive force.  Moreover, the plaintiffs claim that the activities of the government officials have become a custom warranting government liability.

Dakota Access Pipeline Native American protest site,
photo by Shane Balkowitsch, via

The factual claims in the complaint and memo supporting the TRO are troubling; some of the accounts will be familiar from reporting, but the legal documents compare the use of force at Standing Rock to other situations. 

For example, on the water cannon:

The use of water cannons in riot control contexts also can lead to injury or death. Potential health effects include hypothermia and frostbite, particularly if appropriate medical and warming services are not easily accessible. High-pressure water can cause both direct and indirect injuries. Direct injuries may include trauma directly to the body or internal injuries from the force of the water stream. Eye damage resulting in blindness as well as facial bone fractures and serious head injuries have been documented. Ex. V at 59; Anna Feifenbaum, White-washing the water cannon: salesmen, scientific experts and human rights abuses, Open Democracy (Feb. 25, 2014); https://www.opendemocracy.net/opensecurity/anna-feigenbaum/white-washingwater-cannon-salesmen-scientific-experts-and-human-rights; https://web.archive.org/web/20070221053037/http://newzimbabwe.com/pages/mdc44.15976.html (fatalities reported in Zimbabwe in 2007, when water cannons were used on peaceful crowd, causing panic); http://www.hurriyetdailynews.com/Default.aspx?pageID=238&nid=49009 (fatalities reported in Turkey in 2013, when water cannon water was mixed with teargas); https://www.kyivpost.com/article/content/ukraine-politics/activist-watered-by-police-diedbecause-of-pneumonia-335885.html (fatality reported in Ukraine in 2014, when businessman Bogdan Kalynyak died from pneumonia after being sprayed by water cannon in freezing temperatures). There is no current caselaw on the use of water cannons against protesters in the United States because, along with attack dogs, such use effectively ended in the U.S. in the 1960s amidst national outcry over the use of these tactics on nonviolent civil rights protesters.

More information is available from the Water Protectors Legal Collective  and National Lawyers Guild.

 

Court Rebuffs State Challenge to Treasury Regs on Abandoned Bonds

Steven D. Schwinn, John Marshall Law School

Judge Christopher R. Cooper (D.D.C.) today rebuffed state arguments that a new Treasury rule governing state escheat claims of title and for payment of U.S. Treasury bonds did not violate the Constitution. The ruling ends this case (unless and until appealed) and means that the Treasury rule, designed to ensure that state judgments on the abandonment and ownership of Treasury bonds are accurate, stays in place.

The ruling is a blow to states like Kansas that sought to make it easier to show that a Treasury bond was abandoned, and that the state owned it, and therefore could redeem it.

The case came on the heels of some regulatory and judicial back-and-forth on the issues of whether and how states could take title to Treasury bonds under state escheat laws, redeem the bonds, and keep the proceeds. At one point in the back-and-forth, Kansas adopted a title-escheatment statute, which conveyed title of abandoned bonds to the state. Treasury agreed to redeem bonds in the state's possession, but, under its regs, not those escheated bonds not in its possession. So Kansas sued.

As that case was pending, Treasury enacted new regs. The new regs gave Treasure the "discretion to recognize an escheat judgment that purports to vest a state with title to a [matured by unredeemed] savings bond . . . in the state's possession" when there is sufficient evidence that the bond has been abandoned. But the rule does not recognize "[e]scheat judgments that purport to vest a state with title to bonds that the state does not possess." In short, in order for a state to claim payment, the rule provides that (1) states must have possession of the bonds, (2) they must have "made reasonable efforts to provide actual and constructive notice of the state escheatment proceeding" and an opportunity to respond to all interested parties, and (3) there must be sufficient evidence of abandonment.

Kansas and others sued again, this time arguing that the new rule was arbitrary and capricious in violation of the APA, that it violates the Appointments Clause and the Tenth Amendment, and that it illegal confers the power to review state court judgments to a federal agency.

As to Appointments, the plaintiffs argued that the Treasury official who signed and promulgated the rule, Fiscal Assistant Secretary David A. Lebryk, appointed as an inferior officer, exercised authority as a principal officer in violation of the Appointments Clause. The court disagreed, pointing to the Fiscal Assistant Secretary's work, including the work on the new rule, which "is directed and supervised at some level by others who were appointed by Presidential nomination with the advice and consent of the Senate."

As to review of state judgments, the plaintiffs argued that the new rule permits Treasury to judge the due process and sufficiency-of-evidence in state court proceedings under the three prongs listed above. But the court said that "[t]wo bodies of law are at issue: a state law of escheat and a federal law of bond ownership," and that "[s]tate court judgments are final regarding the former, but Treasury--by operation of the Supremacy Clause and pursuant to its statutorily-delegated authority--may promulgate rules to define the latter." The court also said that Treasury's due process review is not aimed at implementing constitutional protections (as an appellate court might), "but at facilitating reliable determinations of abandonment."

Finally, as to the Tenth Amendment, the court said that Treasury promulgated the rule pursuant to statutory authority from Congress, enacted within Congress's constitutional authority, and so the rule raised no Tenth Amendment problem.

(The court also rejected the plaintiffs' APA claim.)

 

Lessig on Why Electors Should Choose Clinton

Lawrence Lessig's much-talked-about piece in the Washington Post is here. In short:

[I]f the electoral college is to control who becomes our president, we should take it seriously by understanding its purpose precisely. It is not meant to deny a reasonable judgment by the people. It is meant to be a circuit breaker--just in case the people go crazy.

In this election, the people did not go crazy. The winner, by far, of the popular vote is the most qualified candidate for president in more than a generation. Like her or not, no elector could have a good-faith reason to vote against her because of her job qualifications. Choosing her is thus plainly within the bounds of a reasonable judgment by the people.

House Dems Call for Oversight of Trump's Conflicts

Steven D. Schwinn, John Marshall Law School

House Democrats today issued a(nother) letter to House Oversight and Government Reform Chair Jason Chafetz to conduct oversight hearings on conflicts between President-Elect Trump's business interests and his role as President. (They issued an earlier letter two weeks ago.)

Although you have stated publicly that you will hold Mr. Trump to the same standards as President Obama and Secretary Clinton, you have not responded to Ranking Member Cummings' letter, and you have not taken steps to conduct basic oversight of these unprecedented challenges.

The letter goes on to outline the many now-familiar conflicts between Trump's overseas and domestic business interests and his role and his family's roles through the transition and into his presidency.

The letter quotes Chafetz's own words, from before the election, way back in August:

If you're going to run and try to become the president of the United States, you're going to have to open up your kimono and show everything, your tax returns, your medical records. You are just going to have to do that. It's too important. . . . I promise you, I don't care who is in the White House. My job is not to be a cheerleader for the president. My job is to hold them accountable and to provide that oversight. That's what we do.

We'll see.

Can a School Board Ban Wearing Safety Pins?

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

The safety pin has been recognized as an expression of support for the "vulnerable," becoming popular in the UK in response to xenophobic incidents after the Brexit vote and now in the US after reports of similar incidents. While some deride it as being a mere (and insufficient) fashion accessory without accompanying actions, the Shawnee Mission School District in Kansas has issued a message to its employees essentially prohibiting them from wearing safety pins as a form of expression. Here is the statement from the school district's Facebook page, seemingly crafted in consultation with its local NEA chapter:

"Recent events require us to remind our employees of their rights and responsibilities. As a staff member, you do not give up your first amendment right to free-speech on matters of public concern. However, your communication inside the classroom on school time is considered speech on behalf of the school district and there is a limitation on that speech.
The wearing of a safety pin as a political statement is the latest example of such political speech. Although wearing the safety pin as political speech is not the problem, any disruption the political statement causes in the classroom or school is a distraction in the education process. We ask staff members to refrain from wearing safety pins or other symbols of divisive and partisan political speech while on duty--unless such activity is specifically in conjunction with District curriculum.
Further, the use of district owned devices and accounts is strictly forbidden for anything other than District business. If you have questions regarding appropriate use, please see BOE policies IIBF and GAT.
NEA-SM and the Board of Education are committed to the safety of every student. Thank you in advance for your careful review of this statement and for working with all students of the Shawnee Mission community.”

The Kansas ACLU has sent a letter to the school district urging it to "reconsider the prohibition on the wearing of safety pins."   The ACLU letter argues that the safety pin is not partisan political speech and is "highly vulnerable to legal challenge" under the classic case of Tinker v. Des Moines Independent Community School District (1969).   In Tinker, involving students wearing black armbands to protest the Viet Nam war, the Court ruled that public schools could not curtail students' symbolic speech unless the speech would "materially and substantially interfere with the requirements of appropriate discipline in the operation of the school," or infringe on the rights of others.  The Supreme Court famously stated that "It can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate," and the Tinker standard has been applied to teachers as well as students.

The ACLU has the better argument here.  As I've written in Dressing Constitutionally, the Tinker standard has been applied to teachers as well as students.  Moreover, the school district's contention that  teachers' expression "inside the classroom on school time is considered speech on behalf of the school district," is an overstatement (and is at odds with doctrine limiting government liability for teacher speech unless it is official policy).  Importantly, the school's communication recognizes the "safety pin" as conveying a specific meaning  - - - contrasted with cases involving teacher dress in which the expression is debatable (e.g., long hair or mustaches for male teachers) - - - and thus the First Amendment clearly applies to the safety pin as expression.  As for disruption, the Tinker standard requires the school officials "had reason to anticipate" a substantial disruption rather than merely "an urgent wish to avoid the controversy which might result from the expression."  There do not seem to be any facts indicating that there would be disruption - - - again, contrasted with cases in which there was a history of racial violence and student Confederate flag attire could be banned - - - and thus the Tinker standard is not satisfied.

The school board is on shaky First Amendment ground in its banning of safety pins as symbolic expression.

Ninth Circuit Says State Environmental Law is Preempted in Railway Repair

Steven D. Schwinn, John Marshall Law School

The Ninth Circuit ruled this week that the Interstate Commerce Commission Termination Act preempted an Oregon state environmental measure as it related to repairs on a tourist rail line.

The ruling means that the state "removal-fill law," which requires a state permit for the removal of any amount of material from waters designated as Essential Salmonid Habitat, does not apply to the repair project.

The case arose when the Port of Tillamook Bay, which owns railways in Oregon, contracted with the Oregon Coast Scenic Railroad, which operates tourist trains on a portion of the Port's tracks, to repair some of the track. But when Oregon Coast started work, the Department of State Lands sent Oregon Coast a cease and desist order, alleging that the repair work would violate the state's removal-fill law. Oregon Coast sued, arguing that the federal ICCTA preempted Oregon's removal-fill law.

The Ninth Circuit agreed. The court ruled that the ICCTA preempts if an activity is (1) "transportation" (2) "by rail carrier" and (3) "as part of the interstate rail network." The court noted that the parties agreed that the activity was "transportation" under the ICCTA. It went on to say that the work was "by rail carrier," because "the repair work performed by Oregon Coast is 'an integral part of [the Port's] provision of transportation by rail carrier.'" Finally, the court held that the work was "part of the interstate rail network," because the line, while not currently attached to an interstate rail line, once was attached to an interstate rail line, and, when the repairs were finished, would once again be attached to an interstate rail line.

The court said that under ICCTA preemption, the work falls under the exclusive jurisdiction of the federal Surface Transportation Board, and that state regulation--including environmental regulation--is preempted.

Court Halts President Obama's Overtime Rules, but Rebuffs Effort to Overturn Garcia

Steven D. Schwinn, John Marshall Law School

Judge Amos L. Mazzant (E.D. Tex.) granted a nationwide injunction today against the Obama Administration in enforcing its new overtime rules.

The ruling is a blow to President Obama's effort to update the overtime requirements through administrative rulemaking, and not legislation. The nationwide injunction seems extreme, but, as Judge Mazzant noted, this district-court-issuing-a-nationwide-injunction-thing seems to be a growing trend among district court judges striking President Obama's administrative initiatives.

At the same time, the new Trump Administration will almost surely undo these rules, anyway.

So the big loser is the lower-income (between $23,660 to $47,892 per year), salaried worker. That person, covered by the now-enjoined rule, won't qualify for overtime. (The court said that the FLSA requires a "duties" test. So if DOL can reissue regs around duties, some of these workers may still qualify. But don't count on this with the new administration.)

The government can appeal, but the conservative Fifth Circuit seems likely to affirm. And again: The Trump Administration will almost surely undo this, anyway.

Recall that DOL issued rules raising the "executive, administrative, and professional" exemption from the FLSA requirement that employers pay overtime to workers. In particular, DOL issued rules that said that employees who earn up to $47,892 per year (up from $23,660 per year) fell outside the exemption, and therefore qualified for mandatory overtime. The new rules also set an automatic update that adjusts the minimum salary level every three years.

States and business organizations sued, arguing that the rules violated the Administrative Procedures Act, because they weren't authorized by the FLSA. The state plaintiffs threw in a claim that the new rules and the entire FLSA violated the Tenth Amendment and federalism principles. Because this claim ran headlong into Garcia (which upheld the application of the FLSA to the states), the states, for good measure, went ahead and boldly argued that the court should overturn Garcia.

The court agreed with the APA claim, but disagreed about Garcia. As to the APA, the court said that the language of the FLSA--"executive, administrative, and professional" employees are exempt from the overtime mandate, and that DOL can promulgate regs to implement this exemption--required that the government consider employees' duties, and not just income, in determining whether an employee qualifies. Because the new regs only considered income, they violated the FLSA.

As to Garcia: the court flatly rejected the call to overturn it. This is hardly a surprise: It's still good law, after all. It seems the states were banking on a favorable ruling from the Fifth Circuit and a split Supreme Court. (That sounds familiar.)

Or they were banking on a differently comprised Court entirely--one friendly to their anti-Garcia claim. And who knows? Now they might get it.

House Republicans Seek to Stall Obamacare Appeal

Steven D. Schwinn, John Marshall Law School

The House of Representatives last week filed a motion at the D.C. Circuit to delay the government's appeal of a district court ruling that the Obama Administration spent money on reimbursements to insurers under the Affordable Care Act without congressional authorization of funds. We posted on that ruling here.

The move seeks to halt the appeal and give President-Elect Trump and House Republicans time to figure out what to do next.

Recall that the district court ruled that the Obama Administration could not spend money on reimbursements for insurers on the ACA exchanges without an authorization from Congress. Because Congress hadn't authorized the expenditure, the Administration couldn't spend the money. (The ACA provision providing for insurer reimbursement is important, even critical, to the success of the exchanges--it's designed to keep insurance rates affordable. Congress zero-funded the line-item, though.)

If the appeals court affirms the district court ruling, and if (as expected) Congress declines to fund the line-item for insurer reimbursement, insurers would have to dramatically increase rates or drop out of the exchange markets. On the other hand, the D.C. Circuit could rule that the House lacks standing, or it could rule for the Administration on the merits.

A halt to the appeal would allow the incoming administration some time to decide how to deal with the suit, insurer reimbursements, and Obamacare in general.

Brief History of the Emoluments Clause - - - and Argentina

Julie Silverbrook of The Constitutional Sources Project has a worthwhile "brief history" of the Emoluments Clause, including the text and this excerpt from The Federalist No. 22: "Evils of this description ought not to be regarded as imaginary. One of the weak sides of republics, among their numerous advantages, is that they afford too easy an inlet to foreign corruption."  The passage goes on to contrast monarchies with republican governments, the former being less susceptible to corruption because  the hereditary monarch "has so great a personal interest in the government, and in the external glory of the nation, that it is not easy for a foreign power to give him an equivalent for what he would sacrifice by treachery to the State." 

Scholar Zephyr Teachout has also been discussing Emoluments, as we noted here;  And now might be a good time to reread Teachout's 2014 book Corruption in America).  [update: If you don't have the book handy, her 2012 essay, Gifts, Offices, and Corruption is available on ssrn.]

While it has been argued that the Emoluments Clause should not apply to the President as we noted here, its application to a President-Elect is even more uncertain. 

Law professors looking for a class exercise (or perhaps a paper topic) could use any number of examples, although a "hypothetical" based on an Argentina construction project might be useful.  Here is the situation courtesy of a storify of tweets and here is the piece from The Hill.

CAC on Access to the Courts

Check out the Constitutional Accountability Center's recently published report on access to the federal courts, The Keystone of the Arch: The Text and History of Article III and the Constitution's Promise of Access to the Courts. The report is the most recent addition to the CAC's excellent Narrative Series.

In it, David Gans, Director of the Human Rights, Civil Rights & Citizenship Program at the CAC, explainss how the Supreme Court has restricted access in the name of Article III "cases and controversies" and at the same time has expanded state sovereign immunity far beyond the text and history of the Eleventh Amendment. "The same cramped vision of the role of the federal courts in righting wrongs and in enforcing the Constitution and federal laws has been at the heart of numerous other Rehnquist and Roberts Court rulings that pervert statutes, court rules, and bodies of judge-made laws to limit access to the federal courts by those asserting federal claims."

What Might Jeff Sessions do as AG?

Many have criticized Trump's Sessions pick for AG based on his background, voting record, and prior statements. But, if confirmed, what might an AG Sessions actually do?

Roll back federal civil rights and voting-rights enforcement, tighten the screws on immigrants, increase surveillance, and enforce federal marijuana laws in states that have legalized marijuana, according to Politico; roll back civil rights, according to The Atlantic; seek harsh punishment for low-level crimes (among other things), according to the Brennan Center; and even "prosecute sanctuary cities," according to the Washington Times.

Sessions has his defenders. Hans von Spakovsky writes at Fox why "Jeff Sessions is the perfect pick for attorney general," in part because of his commitment to federalism (although this may be federalism of a selective sort--not applicable to marijuana and sanctuary cities, for example--we'll see). Mark Hemingway defends the pick at The Weekly Standard.

Federal Three-Judge Court Finds Wisconsin's Gerrymander Scheme Unconstitutional

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

In its opinion in excess of 100 pages in Whitford v. Gill, the majority of a three judge court has concluded that Wisconsin's "gerrymandering" of districts was unconstitutional. 

The factual predicate for the case does not involve the most recent election.  Writing for the majority, Seventh Circuit Judge Kenneth Ripple began by explaining:

The plaintiffs have brought this action alleging that Act 43, the redistricting plan enacted by the Wisconsin Legislature in 2011, constitutes an unconstitutional partisan gerrymander. Specifically, they maintain that the Republican-controlled legislature drafted and enacted a redistricting plan that systematically dilutes the voting strength of Democratic voters statewide. We find that Act 43 was intended to burden the representational rights of Democratic voters throughout the decennial period by impeding their ability to translate their votes into legislative seats. Moreover, as demonstrated by the results of the 2012 and 2014 elections, among other evidence, we conclude that Act 43 has had its intended effect.

In its discussion of "foundational case law," the court begins its discussion with the equal protection case of Reynolds v. Sims (1964), and concludes with League of United Latin American Citizens v. Perry (“LULAC”) (2006), although interestingly it does not cite Bush v. Gore (2000).  In considering the "close relationship between equal protection and associational rights," the court found Williams v. Rhodes (1968) especially instructive.  The court concluded:

We therefore believe that there is a solid basis for considering the associational aspect of voting in assessing the gravamen of the harm allegedly suffered by the plaintiffs. Indeed, in this case, the associational harm is especially important to the analysis because the testimony of the defendants’ witnesses as well as the plaintiffs’ demonstrate that, given the legislative practice and custom of Wisconsin, legislative action is controlled, as a practical matter, solely by the majority caucus. In such a circumstance, when the state places an artificial burden on the ability of voters of a certain political persuasion to form a legislative majority, it necessarily diminishes the weight of the vote of each of those voters when compared to the votes of individuals favoring another view. The burdened voter simply has a diminished or even no opportunity to effect a legislative majority. That voter is, in essence, an unequal participant in the decisions of the body politic.

It therefore rejected the notion that equal protection "must be limited to situations where the dilution is based on classifications such as race and population."

The court summarized the applicable doctrine as follows:

the First Amendment and the Equal Protection clause prohibit a redistricting scheme which (1) is intended to place a severe impediment on the effectiveness of the votes of individual citizens on the basis of their political affiliation, (2) has that effect, and (3) cannot be justified on other, legitimate legislative grounds.

The court then exhaustively applied these standards to the complex facts, concluding that the plaintiffs had carried their burden.  As to remedy, however, the court deferred because the parties had not had the opportunity to completely brief the matter and ordered simultaneous briefs within 30 days with 15 days thereafter to respond.

The dissenting judge, William Griesbach, relied on Davis v. Bandemer (1986) (plurality), in which the Court refused to invalidate Indiana's redistricting scheme, to support his conclusion that "partisan intent is not illegal, but is simply the consequence of assigning the task of redistricting to the political branches of government," and interestingly notes that

"It was only a term ago that the Court held by a 5 to 4 vote that it was constitutionally permissible to remove redistricting from the political branches. Ariz. State Legislature v. Ariz. Indep. Redistricting Comm’n (2015). Adoption of the majority’s standard may well compel States to do so."

The incessant issue of gerrymandering may be headed to the United States Supreme Court yet again.

 [image 1, Wisconsin map 1865 via; image 2, Appendix 2 to the court's opinion]

Court Punts on President's Authority to Fight ISIS

Steven D. Schwinn, John Marshall Law School

Judge Colleen Kollar-Kotelly today dismissed Smith v. Obama, a case by a service-member challenging President Obama's authority to fight ISIS. The ruling ends the case, with little chance of a successful appeal, and frustrates anyone waiting for a court ruling on whether President Obama can use the AUMF to fight ISIS.

The plaintiff, a U.S. Army Captain, sued President Obama, arguing that neither the 2001 AUMF nor the 2002 AUMF authorized the President to order a military campaign against ISIS (Operation Inherent Resolve), and that the President violated the War Powers Resolution and the Take Care Clause in ordering the campaign.

The plaintiff, a supporter of Operation Inherent Resolve (not an opponent of the campaign, as is more usually the case in these kinds of challenges) who was deployed as part of that campaign, argued that he had standing, because President Obama's orders forced him to choose between two untenable options--following illegal orders (on the one hand) and disobey orders (on the other). The court rejected this claim. The court said that the plaintiff could follow orders without fear of punishment, even if the President acted illegally in ordering the campaign. The court also rejected the plaintiff's oath claim (that he'd violate his oath to protect the constitution by complying with illegal orders), again because he'd face no punishment.

The court went on to rule that the case raised a nonjusticiable political question:

Resolving this dispute would require the Court to determine whether the legal authorizations for the use of military force relied on by President Obama--the 2001 and 2002 AUMFs--in fact authorize the use of force against ISIL. With regard to the 2001 AUMF, the Court would have to determine whether the President is correct that ISIL is among "those nations, organizations, or persons" that "planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons," and that Operation Inherent Resolve represents "necessary and appropriate force" against that group. With regard to the 2002 AUMF, the Court would have to determine whether the President is correct that operations against ISIL are "necessary and appropriate in order to . . . defend the national security of the United States against the continuing threat posed by Iraq." For the reasons set out below, the Court finds that these are political questions under the first two Baker factors: the issues raised are primarily ones committed to the political branches of government, and the Court lacks judicially manageable standards, and is otherwise ill-equipped to resolve them.

The belt-and-suspenders ruling (dismissing for lack of standing and political question) seems unnecessary, given that the standing problems alone would seem to comfortably support dismissal. Moreover, the application of the political question doctrine seems at odds with the D.C. Circuit's post-Boumediene habeas cases. The court had something to say about this, in footnote 17:

Those courts were not asked to declare that an ongoing military operation, about which there appears to be no dispute between Congress and the President, was "illegal." They were asked to determine whether an individual should be accorded habeas corpus relief because his detainment had become illegal. This is a far more traditional and appropriate judicial role, which does not raise the same separation of powers issues present in this case.

Daily Reminder: Equal Media Time Mandate Violates First Amendment

In Miami Herald Publishing Co. v. Tornillo (1974), a unanimous Supreme Court held that Florida's "right of reply" statute granting a political candidate a right to equal space to answer criticism and attacks on his record by a newspaper violated the First Amendment.

As the opinion by Chief Justice Burger phrased it:

the Court has expressed sensitivity as to whether a restriction or requirement constituted the compulsion exerted by government on a newspaper to print that which it would not otherwise print. The clear implication has been that any such a compulsion to publish that which "reason' tells them should not be published" is unconstitutional. A responsible press is an undoubtedly desirable goal, but press responsibility is not mandated by the Constitution, and, like many other virtues, it cannot be legislated. . . . Governmental restraint on publishing need not fall into familiar or traditional patterns to be subject to constitutional limitations on governmental powers.

Thus, while the President-Elect may simply be requesting "equal time" for "us," his widely reported tweet implicates serious constitutional concerns.

 

I watched parts of @nbcsnl Saturday Night Live last night. It is a totally one-sided, biased show - nothing funny at all. Equal time for us?

— Donald J. Trump (@realDonaldTrump) November 20, 2016