Constitutional Law Prof Blog

D.C. Circuit Rejects Media Claim to Guantanamo Force-Feeding Tapes

Steven D. Schwinn, John Marshall Law School

The D.C. Circuit ruled today in the long-running Dhiab case that media intervenors had no First Amendment right to access redacted and videotapes classified as "secret" of force-feedings at Guantanamo Bay. The ruling overturns the district court order releasing the tapes after government redaction and ensures that the tapes won't be released (at least unless the full D.C. Circuit or Supreme Court reverses). We last posted on the case here.

The court rejected the internors' First Amendment claim under Press-Enterprise Co. v. Superior Court. The court distinguished that case, holding that it dealt with sealed testimony and exhibits in a murder case (not classified national security information, as here) and that it was a criminal prosecution (and not a habeas corpus case, as here). As to the former difference, the court noted that national security information is traditionally well protected, citing the State Secrets Privilege from Reynolds and Totten, the closed hearings in Guantanamo habeas cases, and the classified-material exception in FOIA. As to the latter difference, the court reviewed the history and concluded that "[i]n habeas corpus cases, there is no tradition of public access comparable to that recounted in Press-Enterprise II with respect to criminal trials."

The court went on to say that even if the intervenors had a First Amendment right of access to the tapes, the government's interests in protecting national security justified withholding them. In particular, the court said that the government provided sufficient evidence that the tapes could threaten security at Guantanamo Bay, incite violence against American troops abroad, and serve as propaganda to recruit fighters.

Seattle Sues Over Sanctuary Cities EO

Steven D. Schwinn, John Marshall Law School

Seattle sued the Trump Administration this week over President Trump's "sanctuary cities" executive order. Seattle's move follows San Francisco's earlier suit and AG Sessions's speech this week on how he intends to enforce the EO.

We posted earlier on the EO here, on San Francisco's suit here, and on Section 1373's constitutionality here.

Like San Francisco, Seattle alleges that it's already complying with Section 1373 (because that section doesn't "impose an affirmative obligation to collect the citizenship and immigration data of its residents, or to provide such data to federal officials"), and that Section 1373 is unconstitutional if it requires anything more.

As to the constitutionality of Section 1373, Seattle contends that it violates the anti-commandeering principle in violation of Printz, that it turns pressure into compulsion in violation of NFIB, and that it contains only vague conditions on federal spending, unrelated to the underlying federal program.

Seattle's suit assumes that the EO threatens all federal funding for failure to comply with Section 1373--an assumption that seems supported by the plain language of the EO. AG Sessions's speech this week did very little (if anything) to qualify that assumption and to clarify the EO's reach.

Hawai'i District Judge Extends Injunction Against Muslim Travel Ban 2.0

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

In an opinion and order in Hawai'i v. Trump, United States District Judge Derrick Watson has granted the motion to convert the previously issued Temporary Restraining Order  against the President's March 6, 2017 Executive Order "Protecting The Nation From Foreign Terrorist Entry Into The United States" (now numbered EO 13,780) (colloquially known as the revised travel ban or "Muslim Ban 2.0") into a Preliminary Injunction.  This has the effect of extending the time frame of the injunction as well as making appeal likely.

Judge Watson incorporated the rationales as stated in the previous TRO as we previously discussed, but elaborated on several matters.  First, Judge Watson again considered the standing issues and again concluded that both the state of Hawai'i and the individual plaintiff, Dr. Ismail Elshikh, had standing.

On the likelihood of success on the merits, Judge Watson again set out the classic Establishment Clause test articulated in Lemon v. Kurtzman (1971) and again concluded that the first prong requiring the government action to have a primary secular purpose was not met.

Judge Watson declared that "As no new evidence contradicting the purpose identified by the Court has been submitted by the parties since the issuance of the March 15, 2017 TRO, there is no reason to disturb the Court’s prior determination" (emphasis in original).

Instead, the Federal Defendants take a different tack. They once more urge the Court not to look beyond the four corners of the Executive Order. According to the Government, the Court must afford the President deference in the national security context and should not “‘look behind the exercise of [the President’s] discretion’ taken ‘on the basis of a facially legitimate and bona fide reason.’” Govt. Mem. in Opp’n to Mot. for TRO 42–43 (quoting Kliendienst v. Mandel, 408 U.S. 753, 770 (1972)), ECF No. 145. No binding authority, however, has decreed that Establishment Clause jurisprudence ends at the Executive’s door. In fact, every court that has considered whether to apply the Establishment Clause to either the Executive Order or its predecessor (regardless of the ultimate outcome) has done so.

(emphasis in original).  The footnote to this passage includes citations to the recently decided Sarsour v. Trump (Virginia District Judge upholds EO 2) and Int’l Refugee Assistance Project (IRAP) v. Trump  (Maryland District Judge enjoins part of EO 2). Judge Watson adds

The Court will not crawl into a corner, pull the shutters closed, and pretend it has not seen what it has.

While future Executive action could cure the defects, the attempt by this second EO to merely sanitize the first EO was not sufficient. 

Judge Watson declined to narrow the TRO's scope and the injunction is a nationwide one including sections 2 and 6. The judge stated he was

cognizant of the difficult position in which this ruling might place government employees performing what the Federal Defendants refer to as “inward-facing” tasks of the Executive Order.
Any confusion, however, is due in part to the Government’s failure to provide a workable framework for narrowing the scope of the enjoined conduct by specifically identifying those portions of the Executive Order that are in conflict with what it merely argues are “internal governmental communications and activities, most if not all of which could take place in the absence of the Executive Order but the status of which is now, at the very least, unclear in view of the current TRO.” Mem. in Opp’n 29. The Court simply cannot discern, on the present record, a method for determining which enjoined provisions of the Executive Order are causing the alleged confusion asserted by the Government. 

In other words, the federal government cannot complain about the injunction's breadth if the government does not take steps necessary to narrow it. Quoting the Ninth Circuit panel on the original EO in Washington v. Trump, Judge Watson stated that "even if the [preliminary injunction] might be overbroad in some respects, it is not our role to try, in effect, to rewrite the Executive Order.”

Judge Watson's order and opinion set the stage for the case to be appealed to the Ninth Circuit, even as IRAP v. Trump is beginning to proceed in the Fourth Circuit.

Tenth Circuit Upholds Prairie-Dog Protection Under Endangered Species Act Against Commerce Clause Challenge

Steven D. Schwinn, John Marshall Law School

The Tenth Circuit today rebuffed a challenge to the Endangered Species Act and ruled that Congress had authority to enact the Act under the Commerce Clause. The ruling in PETPO v. FWS upholds the Fish and Wildlife Service's regulation protecting Utah prairie dogs.

The ruling deals a(nother) blow to challengers of ESA regs that protect purely intra-state species and reaffirms federal authority to protect those species under the Commerce Clause. (Because the court held that the prairie-dog reg was authorized under the Commerce Clause, it did not separately address whether it's authorized under the Necessary and Proper Clause.)

We might keep an eye on this case and any others like it. If Judge Gorsuch is confirmed, he could tilt the balance on the Court against ESA regs--and in favor of yet more restrictions on congressional authority under the Commerce Clause. (Remember that Justice Scalia concurred in Gonzales v. Raich, the basis for the Tenth Circuit's ruling. Judge Gorsuch might not agree, or might see this case through the Lopez- and Morrison-lenses of the plaintiffs. Judge Gorsuch was not on the Tenth Circuit panel in this case.)

The court applied the test from Gonzales v. Raich, which upheld the federal prohibition on home-grown marijuana for medical use because it was part of a larger regulatory scheme (the federal Controlled Substances Act), which itself was authorized under the Commerce Clause. At the same time, the court specifically rejected PETPO's argument that it should consider the prairie-dog regulation only in isolation (like the Gun-Free School Zones Act in U.S. v. Lopez or the individual cause of action in United States v. Morrison)--not as part of the larger ESA scheme. By analyzing the reg under Raich (and not under the provision-specific approach in Lopez and Morrison), the court aligned with other circuits that have ruled on the question.

The court summarized its test:

In short, the Commerce Clause authorizes regulation of noncommercial, purely intrastate activity that is an essential part of a broader regulatory scheme that, as a whole, substantially affects interstate commerce (i.e., has a substantial relation to interstate commerce). Therefore, to uphold the challenged regulation here, we need only conclude that Congress had a rational basis to believe that such a regulation constituted an essential part of a comprehensive regulatory scheme that, in the aggregate, substantially affects interstate commerce.

The court rejected PETPO's contention that it shouldn't apply Raich, because PETPO lodged a facial challenge to the specific prairie-dog provision under Lopez and Morrison, and not "an application to a particular subset of activity, as in Raich." The court said,

the real crux of PETPO's challenge is not a challenge to any particular FWS regulation but to Congress's power to authorize regulation of the Utah prairie dog. Although PETPO is, in a sense, correct that the prohibition on take of the Utah prarie dog is "a particular challenged provision," this prohibition finds its place within the broader regulatory scheme of the ESA's protections of endangered and threatened species. More specifically, the prohibition at issue is an instance of Congress's broad authorization to use regulations to extend the take protections that endangered species enjoy to those listed as threatened.

The court said that "the Court in both Lopez and Raich looked past the larger enactment and characterized the Gun-Free School Zones Act as an independent statute."

The court also rejected PETPO's argument that the ESA "is a comprehensive scheme to provide for environmental conservation, not [to] regulate a market." The court said that this was based on too cramped a reading of Raich, which, the court said, doesn't require a "comprehensive economic scheme." Instead, Raich only required a "comprehensive regulatory scheme" that has a "substantial relation to commerce." The court said that the ESA prohibitions easily meet this standard, based on their plain economic effects (some of which PETPO itself raised as the harms that formed the basis of its suit).

The court went on to hold that Congress had a rational basis for thinking that the prairie-dog-protection reg constituted an essential part of the ESA, a comprehensive regulatory scheme, that, "in the aggregate, substantially affects interstate commerce."

 

SCOTUS Rules First Amendment Applies to New York's Credit Card Surcharge Statute

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

In its opinion in Expressions Hair Design v. Schneiderman, a unanimous Court reversed the Second Circuit's conclusion that the First Amendment was not applicable to a New York statute prohibiting a credit card surcharge. 

At issue is New York General Business Law § 518 prohibiting sellers from imposing a surcharge on customers who use credit cards.  On the other hand, the statute allowed a "cash discount." United States District Judge Jed Rakoff had held that the New York statute regulated speech, limiting how merchants could express their differential pricing, and concluded that the statute failed the test for constitutional commercial speech under Central Hudson Gas & Electric Corp. v. Public Service Commission (1980). The Second Circuit did not reach the Central Hudson analysis given its conclusion that there was no speech, commercial or otherwise, only conduct.  The United States Supreme Court holds the statute regulates speech, at least as applied here.

Chief Justice Roberts's relatively brief (11 pages) opinion explains the Court's determination that §518 regulates speech thusly:

The law tells merchants nothing about the amount they are allowed to collect from a cash or credit card payer. Sellers are free to charge $10 for cash and $9.70, $10, $10.30, or any other amount for credit. What the law does regulate is how sellers may communicate their prices. A merchant who wants to charge $10 for cash and $10.30 for credit may not convey that price any way he pleases. He is not free to say “$10,with a 3% credit card surcharge” or “$10, plus $0.30 for credit” because both of those displays identify a single sticker price—$10—that is less than the amount credit card users will be charged. Instead, if the merchant wishes to post a single sticker price, he must display $10.30 as his sticker price. Accordingly, while we agree with the Court of Appeals that §518 regulates a relationship between a sticker price and the price charged to credit card users, we cannot accept its conclusion that §518 is nothing more than a mine-run price regulation. In regulating the communication of prices rather than prices themselves, §518 regulates speech.

 The Court did not proceed further, but remanded the case to the Second Circuit to assess 518's constitutionality, presumably under Central Hudson.  However, in a footnote the Court made clear that there is a question as to whether 518 would prohibit a "two-sticker pricing scheme" such as the one that Hair Expression uses.

Justice Breyer's brief concurring opinion points out that the speech/conduct distinction may not be the wisest path, but instead the courts should consider how the challenged government action "affects an interest that the First Amendment protects." Here, Justice Breyer contends that 518 is unclear as to whether it is actually regulating disclosure (in which case the rational basis standard of Zauderer v. Office of Disciplinary Counsel of Supreme Court of Ohio (1985) would apply) or whether it is more traditional commercial speech under Central Hudson.  

This lack of clarity in the statute causes Justice Breyer to agree with the concurring opinion by Justice Sotomayor, joined by Justice Alito, that the interpretation of the statute should be certified to New York's highest court.  Sotomayor's opinion criticizes the Second Circuit for not certifying the question previously, but for choosing a "convoluted course": it "rejected certification, abstained in part,' and decided the question in part," requiring a division in the petitioners' First Amendment challenge.

Sotomayor makes it clear that the "Court's opinion does not foreclose" the Second Circuit from choosing the certification route on remand.  It remains to be seen what the Second Circuit will do, but it would probably be well-advised to avail itself of the certification process.

 

Second Circuit Rejects First Amendment Claim of Law Firm to Accept Investment from NonLawyers

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

In its opinion in Jacoby & Myers, LLP v. The Presiding Justices of the First, Second, Third & Fourth Depts, the Second Circuit upheld the New York Rules of Professional Responsibility prohibitions of nonlawyers investing in law firms, rejecting the firm's First Amendment challenges.  The law firm argued it had rights to associate, to access the courts, and to petition the courts.

Writing for the panel, Judge Susan Carney noted that while cases such as NAACP v. Button (1963) "might casually be characterized as reflecting lawyers’ expressive rights in the causes they pursue—when those causes implicate expressive values," the Supreme Court has "never held, however, that attorneys have their own First Amendment right as attorneys to associate with current or potential clients, or their own right to petition the government for the redress of their clients’ grievances when the lawyers are acting as advocates for others, and not advocating for their own cause." 

Clients have First Amendment expressive rights for which litigation may provide a vehicle. When the lawyers’ own expressive interests align with those rights, the lawyers themselves may have a cognizable First Amendment interest in pursuing the litigation. We are not aware of any judicial recognition of such an interest, however, when it comes to the lawyer’s generic act of pursuing litigation on behalf of any client.

Of course attorneys have First Amendment rights regarding their professional advertising, but the court distinguished those precedents and further rejected the asserted rights to association, access to the courts, and to petition.  Moreover, the court found that even if such rights were to be recognized as asserted by the law firm, "the regulations are supported by a substantial government interest and impose an insubstantial burden on the exercise of any such First Amendment rights."  Yet the court clearly stated that "rational basis review applies," and that the regulations "serve New York State’s well‐established interest in regulating attorney conduct and in maintaining ethical behavior and independence among the members of the legal profession."

Affirming the district judge, the Second Circuit decision means that the law firm's challenge has yet to  survive a motion to dismiss.  Yet this is most likely only the beginning of challenges to professional rules regarding lawyer and non-lawyer business relationships.

 

Virginia District Judge Upholds Muslim Travel Ban 2.0

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

In his opinion in Sarsour v. Trump, United States District Judge for the Eastern District of Virginia Anthony Trenga denied the Plaintiffs' motion for Temporary Restraining Order or Preliminary Injunction.

At issue is the President's March 6, 2017 Executive Order "Protecting The Nation From Foreign Terrorist Entry Into The United States" (now numbered EO 13,780), which is colloquially known as the revised travel ban or "Muslim Ban 2.0." 

Recall that the original EO, 13769, issued January 27, 2017, also entitled "Protecting The Nation From Foreign Terrorist Entry Into The United States," was enjoined by the Ninth Circuit in Washington v. Trump,; our backgrounder on the issues is here.  The President withdrew the initial EO and the Ninth Circuit denied the sua sponte motion for en banc review, but in a somewhat unusual step there was a substantive dissenting opinion authored by Judge Jay Bybee.

Recall also that regarding the March 6, 2017 EO ("Muslim Travel Ban 2.0"), two other federal district judges issued injunctions before the EO became effective.  In Hawai'i v. Trump, United States District Judge Derrick Watson issued a TRO of sections 2 and 6 of the EO based on the likelihood of plaintiffs to prevail on their Establishment Clause challenge.  In International Refugee Assistance Project (IRAP) v. Trump, Maryland District Judge Theodore Chuang issued a preliminary injunction of section 2(e) of the EO based on the likelihood of plaintiffs to prevail on their statutory claim under the Immigration and Nationality Act and their constitutional claim under the Establishment Clause.Judge Trenga disagrees with both Hawai'i v. Trump and IRAP v. Trump, although the opinion does not engage in a substantial dialogue with these opinions. 

Linda Sarsour, plaintiff via

For example, on the statutory claim in Sarsour v. Trump, Judge Trenga concludes after reviewing "the text and structure of the INA as a whole, and specifically, the practical, operational relationships" of the provisions, that the nondiscrimination restrictions of §1152 do not "apply to the issuance or denial of non-immigrant visas or entry under §1182(f).  In a footnote, Judge Trenga acknowledges that the judge in IRAP v. Trump "attempted to reconcile these seemingly contradictory provisions," and simply adds, "There, the court concluded that Section 1152 bars the President from discriminating on the basis of nationality in the issuance of immigrant visas only." (footnote 12).  Judge Trenga characterized the Immigration and Nationality Act (INA) as a "legislative rabbit warren that is not easily navigated," but his ultimate conclusion seems to be based on a broad view of Executive authority. Judge Trenga writes that the he "also has substantial doubts that Section 1152 can be reasonably read to impose any restrictions on the President’s exercise of his authority under Sections 1182(f) or 1185(a)."

Similarly, on the Establishment Clause claim Judge Trenga accorded the Executive broad deference.  Unlike the judges in both Hawai'i v. Trump and IRAP v. Trump, Judge Trenga found that the facial neutrality of "EO-2" was determinative.  Judge Trenga held that past statements - - - or the EO-2 statements (described in a footnote as including the President's statement that EO-2 was a "watered-down version" of EO-1, and Presidential Advisor Stephen Miller's statements) - - - have not "effectively disqualified him from exercising his lawful presidential authority":

In other words, the substantive revisions reflected in EO-2 have reduced the probative value of the President’s statements to the point that it is no longer likely that Plaintiffs can succeed on their claim that the predominate purpose of EO-2 is to discriminate against Muslims based on their religion and that EO-2 is a pretext or a sham for that purpose. To proceed otherwise would thrust this Court into the realm of “‘look[ing] behind’ the president’s national security judgments . . . result[ing] in a trial de novo of the president’s national security determinations,” Aziz, 2017 WL 580855, at *8, and would require “a psychoanalysis of a drafter’s heart of hearts,” all within the context of extending Establishment Clause jurisprudence to national security judgments in an unprecedented way.

Likewise, on the Equal Protection claim, Judge Trenga concluded that although the EO would have a differential impact on Muslims, it was facially neutral.  The Judge relied on an earlier Fourth Circuit case, Rajah v. Mukasy (2008) and articulated the standard as requiring merely a rational national security basis for an immigration measure to survive an Equal Protection Clause challenge.  And again, Judge Trenga accorded the Executive wide discretion: "These are judgments committed to the political branches - - - not to the courts."

In sum, Judge Trenga's opinion aligns with the Ninth Circuit dissent from en banc review by Judge Bybee and is in opposition to the other district judges who have rendered opinions on the second EO which have enjoined its enforcement.  

Fifth Circuit Says Medical Reimbursement Preemption Claim Can Move Forward

Steven D. Schwinn, John Marshall Law School

The Fifth Circuit ruled this week that a medical air-evacuation company has standing and that it sufficiently alleged that state defendants had "some connection" to the enforcement of state law against it to allow the company's preemption suit, including a request for injunctive relief, to move forward. The ruling remands the case to the district court for proceedings on the merits.

The case involves Texas's workers'-compensation scheme, which caps reimbursement to Air Evac's medi-vac air ambulances from an insurance company. Under the Texas Workers' Compensation Act, the Texas Workers' Compensation Commission sets reimbursements rates for insurers to pay health-care providers directly. The Act also prohibits health-care providers from billing a patient for any amount in excess of the set rate. The upshot is that "the initial bill goes to the insurer rather than the patient," at a set rate, here 125% of the Medicare rate for the same service.

Air Evac, along with other, similar health-care providers, challenged the rate through the state administrative-dispute system, arguing that it was preempted by the federal Airline Deregulation Act. They lost, and the lead plaintiff, PHI, appealed.

While the appeal was pending, Air Evac filed this case in federal court, seeking a declaration that the ADA preempted the TWCA and an injunction against TWCA enforcement (under Ex Parte Young). But the district court dismissed the case for lack of subject-matter jurisdiction, because the state defendants weren't charged with enforcing the maximum-reimbursement scheme against Air Evac (because the rate "constraints the amount insurers can pay, rather than the amount air-ambulance companies can charge"), and because Air Evac "failed to show an enforcement proceeding concerning the balance-billing prohibition is imminent, threatened, or even intended."

The Fifth Circuit reversed. The court ruled that Air Evac had standing, because the maximum rate actually constrained the amount that Air Evac could receive, even though it operated directly on the third-party insurer (and not Air Evac). The court held that there was federal question jurisdiction, because Air Evac pleaded that the federal ADA preempted the TWCA. And the court ruled that the state defendants had "some connection" to enforcement of the maximum rate against Air Evac, again because the maximum rate actually constrained Air Evac's reimbursement, even if it operated on the insurer. The court declined to abstain while PHI's state appeal was pending, because the parties and claims were different.

The ruling sends the case back to the district court for proceedings on the merits, the preemption claim.

 

Fourth Circuit: No First Amendment Protection for Fire Battallion Chief's Disruptive Facebook Posts

Steven D. Schwinn, John Marshall Law School

The Fourth Circuit today dismissed a fire department battalion chief's First Amendment retaliation claim for his Facebook activity in violation of the Department's Social Media and Code of Conduct policies. The court also dismissed his facial challenge against the policies as moot.

The case arose when Howard County (Maryland) Fire and Rescue Services Battalion Chief Kevin Patrick Buker posted a series of statements and "likes" on his Facebook page. On January 20, 2013, Buker posted this while on duty (sics omitted):

My aide had an outstanding idea . . lets all kill someone with a liberal . . . then maybe we can get them outlawed too! Think of the satisfaction of beating a liberal to death with another liberal . . . its almost poetic . . .

He then "liked" a colleague's post that added ugly racial comments to this.

The assistant chief directed Buker to remove the posts pursuant to the Department's Social Media Policy. That Policy, relatively new at the time, prohibited employees from posting anything that "might reasonably be interpreted as discriminatory, harassing, defamatory, racially or ethnically derogatory, or sexually violent when such statements, opinions or information, may place the Department in disrepute or negatively impact the ability of the Department in carrying out its mission."

Buker removed the posts, but then posted comments criticizing the Social Media Policy and the "liberals" who were behind it. The Department moved Buker out of field operations and into an administrative assignment and began an investigation.

About three weeks later, another colleague posted to his own Facebook page a picture of an elderly woman with her middle finger raised, with a caption saying that he'll post whatever he wants, and a note stating, "for you Chief." Buker "liked" it.

Shortly after that, Buker was fired for violating the Social Media Policy and the Code of Conduct. (The Code of Conduct banned "conduct unbecoming," that is, "any conduct that reflects poorly on an individual member, the Department, or County government, or that is detrimental to the public trust in the Department or that impairs the operation and efficiency of the Department.")

Buker sued, arguing that the Department fired him in retaliation for his speech, and that the Social Media Policy and Code of Conduct Policy were facially unconstitutional. The Fourth Circuit disagreed.

Applying Pickering, the court held that two of Buker's posts (the one about assaulting liberals, and the one criticizing the Social Media Policy) addressed matters of public concern. (The court assumed, without deciding, that Buker's Facebook activity constituted a "single expression of speech.") But the court said that the Department's interest in efficiency and preventing disruption outweighed Buker's interests:

• Buker's Facebook activity "interfered with an impaired Department operations and discipline as well as working relationships within the Department.
• The posts "significantly conflicted with [his] responsibilities as battalion chief," including "acting as an impartial decisionmaker and 'enforcing Departmental policies and taking appropriate action for violations of those policies.'"
• Buker's "speech frustrated the Department's public safety mission and threatened 'community trust' in the Department, which is 'vitally important' to its function."
• Buker's activity "expressly disrespect[ed] [his] superiors" after he had been reprimanded.
• The posts "disregarded and upset the chain of command."

The court dismissed Buker's facial challenge to the Social Media Guidelines and Code of Conduct as moot. The court said that although the Department changed the policies to eliminate the earlier version's prohibitions on the private use of social media, the Chief and defendants' counsel both promised the court that the Department wouldn't re-implement the old guidelines (so as to make this a "voluntary cessation" case).

 

 

Is Section 1373 Unconstitutional?

Steven D. Schwinn, John Marshall Law School

President Trump's EO on sanctuary cities says that "the Attorney General and the Secretary . . . shall ensure that jurisdictions that willfully refuse to comply with 8 U.S.C. Sec. 1373 (sanctuary jurisdiction) are not eligible to receive Federal grants, except as deemed necessary for law enforcement purposes by the Attorney General or the Secretary."

The provision is almost certainly over-broad, in that it conditions apparently all "Federal grants" on compliance with Section 1373, running afoul of both the relatedness prong and the pressure-into-compulsion test for conditioned federal spending.

But is 1373 itself unconstitutional? In particular, does 1373 violate the non-commandeering principle?

Section 1373 reads:

(a) Notwithstanding any other provision of Federal, State, or local law, a Federal, State, or local government entity or official may not prohibit, or in any way restrict, any government entity or official from sending to, or receiving from, the Immigration and Naturalization Service information regarding the citizenship or immigration status, lawful or unlawful, of any individual.

(b) Notwithstanding any other provision of Federal, State, or local law, no person or agency may prohibit, or in any way restrict, a Federal, State, or local government entity from doing any of the following with respect to information regarding the immigration status, lawful or unlawful, or any individual:

(1) Sending such information to, or requesting or receiving such information from, the Immigration and Naturalization Service.

(2) Maintaining such information.

(3) Exchanging such information with any other Federal, State, or local government entity.

(c) The Immigration and Naturalization Service shall respond to an inquiry by a Federal, State, or local government agency, seeking to verify or ascertain the citizenship or immigration status of any individual within the jurisdiction of the agency for any purpose authorized by law, by providing the requested verification or status information.

The provision--which prohibits action (it prohibits prohibitions) by state and local governments, but doesn't require action--is a pretty transparent attempt to try to work around the anti-commandeering principle. (Doing the same thing directly--by requiring state and local officers to report--would obviously violate the anti-commandeering principle.) Does that save it from commandeering?

Jane Chong, in a thoughtful post over at Lawfare, says maybe--or at least "the answer is not as open-and-shut as the experts insist it is."

If she's right--and she makes a good argument--maybe the problem isn't with transparent work-arounds like 1373. Maybe, instead, the problem is with the anti-commandeering principle itself. In light of 1373 (and a similar provision in the Professional and Amateur Sports Protection Act of 1992, which Chong discusses), maybe "anti-commandeering" suffers from the same problem that another Tenth Amendment principle--"areas of traditional government functions"--suffered from between National League of Cities v. Usery and Garcia v. San Antonio Metropolitan Transit Authority: It's unworkable. And maybe the solution is the same as in Garcia: Abandon it, and leave the issue to the political process. (After all, there's nothing in the Tenth Amendment that says anything about commandeering.)

Maryland Federal District Judge Issues Injunction Against Muslim Travel Ban 2.0

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

In International Refugee Assistance Project (IRAP) v. Trump, Maryland District Judge Theodore Chuang issued a nationwide injunction against the President's March 6, 2017 Executive Order "Protecting The Nation From Foreign Terrorist Entry Into The United States" (now numbered EO 13,780), which is colloquially known as the revised travel ban or "Muslim Ban 2.0."   The 43 page opinion concludes that the Plaintiffs have a likelihood of success on their claims that the EO violates the Immigration and Nationality Act and violates the Establishment Clause.  [Note: Judge Chuang construed the motion for TRO/PI as a motion for a preliminary injunction and issued an injunction.] It closely follows on the TRO issued in Hawai'i v. Trump. 

On the issue of standing, Judge Chuang first finds that several of the individual plaintiffs have standing to challenge the EO on statutory grounds, meeting both Article III standing and being within the zone of interests of the statute.  Likewise, several plaintiffs have standing to challenge on the EO on Establishment Clause grounds given their personal injury on having family members who are directly and adversely affected by the ban.

Judge Chuang's opinion devotes substantial attention to the Immigration and Nationality Act claim, which has been raised in most of the complaints challenging this EO and its predecessor, but has not been the basis for a judicial restraining order.  Here, Judge Chuang concludes that the general power given to the President by 8 U.S.C. §1182(f) to "suspend the entry of all aliens or any class of aliens" is not exempt from the provision of 8 U.S.C. §1152(a) which bars discrimination in the issuance of immigrant visas.  Importantly, the exceptions listed in the non-discrimination provision of §1152(a) do not include §1182(f): 

Because the enumerated exceptions illustrate that Congress “knows how to expand ‘the jurisdictional reach of a statute,793 the absence of any reference to § 1182(1) among these exceptions provides strong evidence that Congress did not intend for §1182(1) to be exempt from the anti-discrimination provision of §1152(a).

[citation omitted].  Thus, Judge Chuang held that the plaintiffs have a likelihood to succeed on their statutory claim.

On the Establishments Clause claim, Judge Chuang, like other judges, looked to McCreary County v. ACLU of Kentucky (2005), for an interpretation of the first prong of the Lemon test, Lemon v. Kurtzman (1971), requiring an government act to have a secular purpose in order to be constitutional. Noting that finding of purpose is a common task for the courts, Judge Chuang discussed the specific statements in the record "directly establishing that Trump intended to effectuate a partial Muslim ban by banning entry by citizens of specific predominantly Muslim countries deemed to be dangerous, as a means to avoid, for political reasons, an action explicitly directed at Muslims."  These statements included the by now familiar statements of candidate Trump and of former-Mayor Guiliani relating to the first EO.  Additionally, Judge Chuang found that the despite the changes in the second EO, "the history of public statements continues to provide a convincing case that the purpose of the Second Executive Order remains the realization of the long-envisioned Muslim ban," quoting statements by Senior Policy Advisor to the President Stephen Miller and White House Press Secretary Sean Spicer.

Judge Chuang rejected the Government's argument that such statements should not be considered because they were made outside the formal government decision-making process. Instead, "all of the public statements at issue here are fairly attributable to President Trump."

Moreover, Judge Huang also looked to the language of the second EO itself.  He rejected the Government's argument that the second EO's articulation of a national security purpose essentially saves the EO.  However, while there should ordinarily be deference to national security, Judge Chuang found that in this "highly unique case," the record provides "strong indications that the national security interest is not the primary purpose of the EO.

• First, the initial EO was adopted without interagency review: "The fact that the White House took the highly irregular step of first introducing the travel ban without receiving the input and judgment of the relevant national security agencies strongly suggests that the religious purpose was primary, and the national security purpose, even if legitimate, is a secondary post hoc rationale."
• Second, the national security rationale was offered only after courts issued injunctions against the first EO, similar to litigation in McCreary.
• Third, the EO is an "unprecedented response" to security risks without any triggering event.

Judge Chuang also rejected the Government's argument that deference is warranted.  This deference argument was made in a dissenting opinion by Judge Jay Bybee from the Ninth Circuit's denial of en banc review in Washington v. Trump.  For Judge Chuang, the deferential standard of Kleindienst v. Mandel (1972), is most "typically applied when a court is asked to review an executive officer's decision to deny a visa" as in Kerry v. Din (2015). The Mandel test does not apply to the promulgation of sweeping immigration policy. Instead, even when exercising their immigration powers, the political branches must choose constitutional permissible means of implementing that power.  It is the courts' duty to determine those constitutional boundaries.

Thus, Judge Chuang issued a nationwide injunction against §2(c) of the Executive Order, independent of the injunction earlier that same day of §2, as well as §6, in Hawaii v. Trump.

[image: Photo by Bruce Emmerling of protest of first EO outside courthouse in Baltimore via; note that Judge Chuang does not sit in Baltimore].

 

Ninth Circuit Declines En Banc Review in Washington v. Trump, Muslim Ban I . . . but with dissent

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

Recall the proceedings in Washington v. Trump in which a panel opinion upheld an injunction against the January 27, 2017 Executive Order by the President, now popularly known as Muslim Ban I.  Because the President withdrew the EO, replacing it with the March 6, 2017 Executive Order "Protecting The Nation From Foreign Terrorist Entry Into The United States" - - - enjoined today in Hawai'i v. Trump - - - proceedings in the Muslim Ban I became irrelevant and the United States dismissed the appeal.  Nevertheless, upon the request of a Ninth Circuit judge, a poll was taken to determine whether the Ninth Circuit should hear the case en banc and vacate the panel opinion.  Today, the order on this en banc request was rendered, and the "matter failed to receive a majority of the votes of the active
judges in favor of en banc reconsideration." 

The order is accompanied by a paragraph concurring opining by Judge Reinhardt:

I concur in our court’s decision regarding President Trump’s first Executive Order – the ban on immigrants and visitors from seven Muslim countries. I also concur in our court’s determination to stand by that decision, despite the effort of a small number of our members to overturn or vacate it. Finally, I am proud to be a part of this court and a judicial system that is independent and courageous, and that vigorously protects the constitutional rights of all, regardless of the source of any efforts to weaken or diminish them.

There is also a more than 20 page dissenting opinion authored by Judge Jay Bybee (pictured) and joined by Judges Kozinski, Callahan, Bea, and Ikuta.

The dissenting opinion of Judge Bybee, controversial in many quarters for his expansive views of Executive power, argues that the President's EO was "well within the powers of the presidency."  Essentially, the dissent argues that the panel opinion did not sufficiently defer to the Executive and Congressional power over immigration.  "The appropriate test for judging executive and congressional action affecting aliens who are outside our borders and seeking admission is set forth in Kleindienst v. Mandel, 408 U.S. 753 (1972)."  The dissent faults the panel opinion because it "missed" the Court's 2015 opinion in Kerry v. Din, "in which Din (a U.S. citizen) claimed that the government’s refusal to grant her Afghani husband a visa violated her own constitutional right to live with her husband. A plurality held that Din had no such constitutional right." 

Judge Bybee's opinion seems to suggest that the panel misconstrued the law in service of the judge's own personal agendas, even as the opinion criticizes personal attacks on judges:

We are all acutely aware of the enormous controversy and chaos that attended the issuance of the Executive Order. People contested the extent of the national security interests at stake, and they debated the value that the Executive Order added to our security against the real suffering of potential emigres. As tempting as it is to use the judicial power to balance those competing interests as we see fit, we cannot let our personal inclinations get ahead of important, overarching principles about who gets to make decisions in our democracy. For better or worse, every four years we hold a contested presidential election. We have all found ourselves disappointed with the election results in one election cycle or another. But it is the best of American traditions that we also understand and respect the consequences of our elections. Even when we disagree with the judgment of the political branches—and perhaps especially when we disagree—we have to trust that the wisdom of the nation as a whole will prevail in the end.

Above all, in a democracy, we have the duty to preserve the liberty of the people by keeping the enormous powers of the national government separated. We are judges, not Platonic Guardians. It is our duty to say what the law is, and the meta-source of our law, the U.S. Constitution, commits the power to make foreign policy, including the decisions to permit or forbid entry into the United States, to the President and Congress. We will yet regret not having taken this case en banc to keep those lines of authority straight.     

Finally, I wish to comment on the public discourse that has surrounded these proceedings. The panel addressed the government’s request for a stay under the worst conditions imaginable, including extraordinarily compressed briefing and argument schedules and the most intense public scrutiny of our court that I can remember. Even as I dissent from our decision not to vacate the panel’s flawed opinion, I have the greatest respect for my colleagues. The personal attacks on the distinguished district judge and our colleagues were out of all bounds of civic and persuasive discourse—particularly when they came from the parties. It does no credit to the arguments of the parties to impugn the motives or the competence of the members of this court; ad hominem attacks are not a substitute for effective advocacy. Such personal attacks treat the court as though it were merely a political forum in which bargaining, compromise, and even intimidation are acceptable principles. The courts of law must be more than that, or we are not governed by law at all.

This dissenting opinion serves as a reminder that the question of the amount of deference to the Executive regarding a "Muslim ban" is a contentious one; this dissenting opinion may also serve as a roadmap to the arguments supporting broad executive power.

[Update: Federal District Judge Theodore Chuang finds the Mandel standard inapplicable in his opinion in International Refugee Assistance Project v. Trump]. 

Hawai'i District Judge Issues TRO Against Muslim Travel Ban 2.0

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

United States District Judge Derrick Watson has issued a Temporary Restraining Order in Hawai'i v. Trump against the President's March 6, 2017 Executive Order "Protecting The Nation From Foreign Terrorist Entry Into The United States" (now numbered EO 13,780), which is colloquially known as the revised travel ban or "Muslim Ban 2.0."  Recall that the original EO, 13769, issued January 27, 2017, also entitled "Protecting The Nation From Foreign Terrorist Entry Into The United States," and now enjoined by the Ninth Circuit in Washington v. Trump, as well as subject to an injunction in Virginia in Aziz v. Trump (note that the state of Virginia intervened). Our backgrounder on the issues is here.  Recall also that Judge Watson allowed Hawai'i to amend its original complaint challenging the previous EO. 

Judge Watson's more than 40 page opinion first engages in an explanation of the facts giving rise to the litigation.

Next, Judge Watson concludes there is Article III standing.  He finds that Hawai'i has standing based on its proprietary interests (and thus there was no need to reach the parens patriae standing theory).  The first proprietary interest is the state's financial and intangible interests in its universities, very similar to the interests the Ninth Circuit found sufficient in Washington v. Trump, involving the previous EO.  The second proprietary interest was to the state's "main economic driver: tourism."  Additionally, Judge Watson concludes that Dr. Elshikh, added as a plaintiff in the amended complaint has standing, specifically addressing the Establishment Clause claim in which injury can be "particularly elusive." Moreover, his claim is ripe.

As to the likelihood of success on the merits prong of the TRO requirement, Judge Watson concluded that the plaintiffs "and Dr. Elshikh in particular" are likely to succeed on the merits of the Establishment Clause claim (and thus the court did not reach the other claims).

Judge Watson acknowledged that the EO does not facially discriminate for or against any particular religion, or for or against religion versus non-religion. There is no express reference, for instance, to any religion nor does the Executive Order—unlike its predecessor—contain any term or phrase that can be reasonably characterized as having a religious origin or connotation.

Nevertheless, the court can certainly look behind the EO's neutral text, despite the Government's argument to the contrary, to determine the purpose of the Government action.  Judge Watson stated that the record before the court was "unique," including "significant and unrebutted evidence of religious animus driving the promulgation" of the EO and its "related predecessor."  Judge Watson then provided excerpts of several of Trump's statements, and rejected the Government's caution that courts should not look into the "veiled psyche" and "secret motives" of government decisionmakers:

The Government need not fear. The remarkable facts at issue here require no such impermissible inquiry. For instance, there is nothing “veiled” about this press release: “Donald J. Trump is calling for a total and complete shutdown of Muslims entering the United States.[]” SAC ¶ 38, Ex. 6 (Press Release, Donald J. Trump for President, Donald J. Trump Statement on Preventing Muslim Immigration (Dec. 7, 2015), available at https://goo.gl/D3OdJJ)). Nor is there anything “secret” about the Executive’s motive specific to the issuance of the Executive Order:
Rudolph Giuliani explained on television how the Executive
 Order came to be. He said: “When [Mr. Trump] first announced
 it, he said, ‘Muslim ban.’ He called me up. He said, ‘Put a
commission together. Show me the right way to do it legally.’”
SAC ¶ 59, Ex. 8.
On February 21, 2017, commenting on the then-upcoming revision to the Executive Order, the President’s Senior Adviser, Stephen Miller, stated, “Fundamentally, [despite “technical” revisions meant to address the Ninth Circuit’s concerns in Washington,] you’re still going to have the same basic policy outcome [as the first].” SAC ¶ 74.

In a footnote, Judge Watson lists "many more" examples.

Moreover, Judge Watson engaged with the plaintiffs' arguments that the EO was contextual, including pointing out that the security rationales listed in the EO included an incident involving an Iraqi national when Iraq was no longer included in the EO; the delayed timing of the EO; and the focus on nationality rather than residence.  But Judge Watson noted that while such "assertions certainly call the motivations behind the Executive Order into greater question, they are not necessary to the Court's Establishment Clause determination."

Judge Watson does note that context could change and that the Executive is not forever barred, but as it stands the purpose of the EO is one that has a primary religious discriminatory purpose and will most likely not survive the Establishment Clause challenge.

Having found a likelihood of success on the merits of the Establishment Clause claim, Judge Watson easily found there was irreparable harm and that a temporary restraining order was appropriate.

Judge Watson's injunction against Sections 2 and 6 of the EO applies "across the Nation."  Should an emergency appeal be sought, Judge Watson's order already denies a stay of the TRO, but does direct the parties to submit a briefing schedule for further proceedings.

No Standing to Challenge BIA's Native American Land Lease Tax Reg

Steven D. Schwinn, John Marshall Law School

The Ninth Circuit ruled that the California Desert Water Agency lacks standing to challenge a new Bureau of Indian Affairs regulation concerning taxes on leases on Native American lands to third parties. The ruling ends DWA's challenge, although DWA could resurrect it, if BIA later halts DWA taxes under the reg.

The case centers around a BIA reg on state and local government taxation of leases by non-Native Americans on Native American lands. The relevant subsection says that "[s]ubject only to applicable Federal law, the leasehold or possessory interest is not subject to any fee, tax, assessment, levy, or other charge imposed by any State or political subdivision of a State. Leasehold or possessory interests may be subject to taxation by the Indian tribe with jurisdiction."

The DWA, which assess taxes on these leases, sued under the APA. But the Ninth Circuit ruled that it lacked standing.

The court said that the regulatory language "[s]ubject only to applicable Federal law," incorporated existing case law, in particular, White Mountain Apache Tribe v. Bracker (1980), which held that courts must apply a fact-specific balancing test in order to determine whether federal law preempts any particular state effort to regulate non-Native American conduct on tribal lands. In other words, the reg, as understood incorporating the Bracker test, couldn't preempt and halt DWA taxation until a court, applying the Bracker test, said so. The reg by its own force doesn't preempt. And with no preemption of DWA taxation, DWA doesn't have a harm, and without a harm DWA lacks standing. (Indeed, after BIA issued the reg, DWA continued to collect taxes on these leases, with no direct threat of enforcement by the BIA.)

The court went on to reject DWA's argument that notwithstanding Bracker incorporation, it still suffered a harm, because the reg would encourage leaseholders not to pay their taxes. The court applied Linda R.S. v. Richard D. and Simon v. Eastern Ky. Welfare Rights Org. in support of its conclusion that "a plaintiff in DWA's position lacks standing if, notwithstanding the relief sought, the third parties would retain discretion to continue their harmful behavior or, alternatively, if it is too speculative to conclude that they would modify their behavior in the way the plaintiff desires."

Hawai'i Renews Challenge to New Executive Order on Muslim Ban

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

The President's March 6, 2017 Executive Order (still unnumbered) which we discussed here supplants the previous EO which was enjoined by the Ninth Circuit in Washington v. Trump. The state of Hawai‘i also challenged the previous EO, as we discussed here, but there was little reason for that case to proceed while the Ninth Circuit injunction was in force. 

The day after the new EO, Hawai‘i requested leave to file a Second Amended Complaint; Judge Derrick Watson has granted leave to file the Second Amended Complaint and lifted the stay on the litigation.

The amended complaint recites new facts relevant to the second EO in support of its essential arguments that the new EO is a "Muslim Ban" and that it cannot pass constitutional scrutiny, including some facts regarding the Administration's actions before the new EO:

For several weeks before its release, members of the Administration had foreshadowed the arrival of the revised Executive Order.

• On February 21, Senior Advisor to the President, Stephen Miller, told Fox News that the new travel ban would have the same effect as the old one. He said: “Fundamentally, you’re still going to have the same basic policy outcome for the country, but you’re going to be responsive to a lot of very technical issues that were brought up by the court and those will be addressed. But in terms of protecting the country, those basic policies are still going to be in effect.”
• The White House originally indicated it would sign the new Executive Order on Wednesday, February 29, 2017, but then postponed the announcement. One Administration official told a news outlet on February 28 that a reason for President Trump’s delay in signing an updated Executive Order was “the busy news cycle,” and the desire of the President that the new order “get plenty of attention.”
• A senior Administration official told a different news outlet on March 1, 2017, that a related reason for the delay in releasing the updated Executive Order was the “positive reaction” to President Trump’s “first address to Congress” on the evening of Tuesday, February 28, 2017. That article reported that “[s]igning the executive order Wednesday, as originally indicated by the White House, would have undercut the favorable coverage,” and the senior Administration official “didn’t deny the positive reception was part of the [A]dministration’s calculus in pushing back the travel ban announcement.”

The Causes of Action in the Complaint remain substantially the same (although there are now 8 counts rather than 7; one of the mixed statutory claims in the original complaint has now been separated).  The constitutional claims include the Establishment Clause, the Equal Protection component of the Fifth Amendment, Procedural Due Process, and the innovative count alleging a violation of the substantive due process right to international travel. The Second Amended Complaint is a bit more specific regarding international travel, including citizen's protected interests in the right of specific non-citizens to travel internationally and come to Hawai‘i.

The biggest difference is the addition of a plaintiff, Ismail Elshikh, an American citizen of Egyptian descent, resident of Hawai‘i for over a decade, with a Syrian mother-in-law who wants to visit the family and her grandchildren.  This addition, along with more specific allegations regarding the number of foreign students and faculty members from the banned countries, would be relevant to standing issues.  (Recall that the Ninth Circuit found Washington state had standing largely because of its universities and colleges). 

Also interesting for the standing issue is the continued allegation of Hawai'i as having an economy driven by tourism, now buttressed by an allegation that

the first Executive Order and the new Executive Order have the effect of depressing international travel to and tourism in Hawai‘i. Under the new Executive Order, Hawai‘i can no longer welcome tourists from the six designated countries. This directly harms Hawaii’s businesses and, in turn, the State’s revenue.

The new complaint repeats the identity of Hawai'i as the "Aloha State": "known for its tradition of welcoming all people with tolerance and mutual respect."  While there is not a Tenth Amendment claim in this complaint (or any of the direct state challenges to the EO) unlike in the litigation involving "sanctuary cities," issues of federalism and conflicting state-federal identities are implicit.

 

President Issues Revised "Travel Ban"

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

The President's revised Executive Order (March 6, 2017), entitled "Protecting The Nation From Foreign Terrorist Entry Into The United States," has substantial changes from the previous EO, 13769, issued January 27, 2017, also entitled "Protecting The Nation From Foreign Terrorist Entry Into The United States," and now enjoined by the Ninth Circuit in Washington v. Trump, as well as subject to an injunction in Virginia in Aziz v. Trump (note that the state of Virginia intervened). Our backgrounder on the issues is here.

This new EO, signed without the fanfare of the previous one, acknowledges that the previous EO "has been delayed by litigation" and does seek to remedy some of the problems with the EO.  For example, the scope is much narrower and the suspension of entry excludes "any lawful permanent resident" as well as some other categories. This will make the applicability of constitutional protections less clear.  While the Constitution protects non-citizens, it does not have global applicability.

The new EO avers that the previous EO was not a "Muslim Ban":

Executive Order 13769 did not provide a basis for discriminating for or against members of any particular religion.  While that order allowed for prioritization of refugee claims from members of persecuted religious minority groups, that priority applied to refugees from every nation, including those in which Islam is a minority religion, and it applied to minority sects within a religion.  That order was not motivated by animus toward any religion, but was instead intended to protect the ability of religious minorities -- whoever they are and wherever they reside -- to avail themselves of the USRAP [US Refugee Admissions Program] in light of their particular challenges and circumstances.

Nevertheless, this new EO does not mention otherwise religion. Of course, omitting references to "religion" or stating that an act is not motivated by animus does not end the inquiry.  Instead, there will most certainly be arguments that courts can consider the new EO as religiously-motivated under either First Amendment or Equal Protection Clause doctrine.

The new EO also changes the seven nations to six - - - omitting Iraq as a "special case."  This could also give rise to a national origin classification - - - is Iraq, with its "active combat zones" so different from Libya and Yemen which are described similarly?  The omission of Iraq is also problematical because the new EO recites as part of its justification this specific incident: "For example, in January 2013, two Iraqi nationals admitted to the United States as refugees in 2009 were sentenced to 40 years and to life in prison, respectively, for multiple terrorism-related offenses." 

That relatively brief paragraph, §1(h), ends by stating that "The Attorney General has reported to me that more than 300 persons who entered the United States as refugees are currently the subjects of counterterrorism investigations by the Federal Bureau of Investigation."  Issues with the Attorney General and counterterrorism aside, the objections of other government officials regarding the efficacy of the travel ban would certainly figure in any judicial measurement of the fit between the travel ban and the government purposes.

In terms of litigation and constitutional challenges, the first order of business will be procedural questions regarding whether the new EO can be substituted for the previous EO through amended complaints and other pleadings or will there need to be new cases.

 

 

 

.@POTUS has signed a new executive order that will keep the nation safe. Read it at https://t.co/XcBwwEJJHF pic.twitter.com/Yx2mikXl2A

— Sean Spicer (@PressSec) March 6, 2017

DC Circuit Upholds Statute Prohibiting Speeches in Supreme Court Building

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

Reversing the district judge, the D.C. Circuit's opinion in United States v. Bronstein upheld the prohibition of certain speech in the United States Supreme Court against a challenge that it was unconstitutionally vague and thus violated the Fifth Amendment's Due Process Clause.

The statute, 40 U.S.C. § 6134, entitled “Firearms, fireworks, speeches, and objectionable language in the Supreme Court Building and grounds,” provides:

It is unlawful to discharge a firearm, firework or explosive, set fire to a combustible, make a harangue or oration, or utter loud, threatening, or abusive language in the Supreme Court Building or grounds.

The district judge had found that “harangues” and “orations” are terms that “cannot be determined without reference to subjective perceptions and individual sensitivities," and thus the statute was not sufficiently precise. The unanimous D.C. Circuit panel found that the statute's

core meaning is delivering speeches of various kinds to persons within the Supreme Court’s building and grounds, in a manner that threatens to disturb the operations and decorum of the Court. In the context of the Supreme Court’s building and grounds, the terms’ core meaning proscribes determinable conduct.

 Moreover, the court found that "while “harangue” and “oration” may not roll off the average person’s tongue today," this "does not alter their possession of a settled meaning around public speeches."  The general sense is "making a speech to a public assembly," and based on the title of the statute, the sense is clear that this pertains to "noises" intended to "disrupt the court's operations." 

In its application, the opinion by Judge Janice Rogers Brown somewhat oddly includes a cinematic reference:

Turning to the facts here, a person of ordinary intelligence could read this law and understand that, as a member of the Supreme Court’s oral argument audience, making disruptive public speeches is clearly proscribed behavior—even in staccato bursts, seriatim. And yet, in a coordinated fashion, each Appellee is alleged to have directed a variation of the same message to the Justices of the Supreme Court and the assembled audience. Their coordinated standing, facing the bench, and messaging indicate the Appellees were addressing the Court and gallery. Cf. MY COUSIN VINNY (20th Century Fox 1992) (Judge Chamberlain Haller: “Don’t talk to me sitting in that chair! . . . When you’re addressing this court, you’ll rise and speak to me in a clear, intelligible voice.”). Viewed objectively, these alleged acts could easily be considered speeches to a public assembly that tended to disrupt the Court’s operations—conduct covered by § 6134’s prohibition of “make a harangue or oration.”

 Earlier in the Bronstein opinion, joined by Judge Srinivasan and Senior Judge Williams, Judge Brown does provide more of the substance of the speeches which included objections to Citizens United and the legal construction of money as speech.  Judge Brown notes that the protest occurred on "April Fools Day of 2015;" the protest group describes the timing as being on the eve of the one year anniversary of McCutcheon v. FEC. (There were no arguments on April 2, the actual anniversary, or the day after). 

While a due process decision, Bronstein is consistent with judicial rejection of First Amendment challenges to statutes prohibiting expression in and around the United States Supreme Court.  We've previously discussed the "special status" of the United States Supreme Court building, the Supreme Court's efforts to ensure its regulations were constitutional, as well as the D.C. Circuit's opinion in Hodge v. Talkin (2015) which upheld the constitutionality of statutory prohibitions of assembly and display of flags or signs on the United States Supreme Court plaza, and the arrest of a person for wearing a jacket with the word "Occupy" on it.

 

 

Florida State Judge Grants Writ of Habeas Corpus to Immigration Detainee on Tenth Amendment Grounds

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

In his opinion in LaCroix v. Junior, Florida state judge Milton Hirsch confronted the constitutionality of the Executive Order threatening to revoke federal funding for sanctuary cities which as we previously predicted "overreaches."

The judge granted the petition for writ of habeas corpus by a man "incarcerated in the Miami-Dade County correctional system." Although there were no state charges against him, LaCroix had "no prospect of imminent release," because as "often happens" Immigration and Customs Enforcement (“ICE”), the federal agency "responsible for the deportation of those whose presence in this country is unlawful, had filed a detainer or lodged a request with the corrections department, seeking to have the department retain an inmate whom would otherwise be released, because ICE has a basis to inquire further as to the status of the person sought. 

Judge Hirsch identified "two inequities" of this practice.  First, until ICE takes custody of the person, the county must "house, oversee, and control" people in which it has no ongoing interest and to do so at county expense.  Second, "it results in the continued incarceration in county jails of persons neither charged with, nor sentenced for violating, any state or county law, and whose ongoing incarceration by the county is therefore difficult to justify."

Judge Hirsch's opinion outlines the controversies surrounding the county's changing practices, noting that while there had been county detention on behalf of ICE, in 2013 the Dade County Commission changed its policy to effectively ban county jails from honoring ICE requests.  However, after the President "threatened to cut federal grants for any counties or cities that don’t cooperate fully with Immigration and Customs Enforcement," Miami-Dade Mayor Carlos Gimenez immediately reversed county policy and ordered county jails to comply with ICE requests.

Judge Hirsch finds that the federal government cannot constrict or commandeer state officials largely relying on Printz v. United States (1997), which held the Brady Handgun Violence Prevention Act's requirement of background checks by state officials unconstitutional pursuant to the Tenth Amendment.  Quoting from Justice Scalia's opinion for the Court in Printz, Judge Hirsch concluded that the present situation was "actually easier" to decide: Printz involved something that local law enforcement is often called to do as a matter of local law, but here

however, we deal with an area of the law – the regulation of immigration and deportation – reserved exclusively to the federal government. See U.S. Const. Art. I § 8, clause 4. The Department does not, and as a matter of constitutional law cannot, act in this federal bailiwick. According to its “mission statement,” see http://www.miamidade.gov/corrections/about-corrections.asp, the Department, “serves our community by providing safe, secure and humane detention of individuals in our custody while preparing them for a successful return to the community.” (Emphasis added.) This is wholly unrelated, arguably antithetical, to the mission of ICE, see https://www.ice.gov/overview, which is “to protect America from the cross-border crime and illegal immigration that threaten national security and public safety.” Yet by operation of the recent change in county policy, and the presidential order upon which it is based, county correctional officers and county correctional facilities are made appendages of ICE, obliged to imprison and maintain Petitioner for ICE –
Petitioner and others, perhaps many others, similarly circumstanced. If the use made of local governmental resources in Printz was constitutionally proscribed, the use made of local governmental resources here is surely constitutionally proscribed.

Moreover, although LaCroix is not a government official, the Tenth Amendment's reservation of rights to "the people" is one that can be raised by an individual, as the Court unanimously held in Bond v. United States (2011). (Recall that Carol Anne Bond was similarly successful in her second trip to the United States Supreme Court when it held that the federal government had essentially overreached in prosecuting her for violation using "chemical weapons.")

Judge Hirsch's analysis of Tenth Amendment precedent is on solid ground.  The opinion is carefully crafted and closely reasoned.  But Judge Hirsch does evoke the larger political contexts in at least two respects. 

First, Judge Hirsch raises and discounts the term "sanctuary city."  He writes that although the term has a "Biblical sound to it" (explaining in a footnote the more precise Biblical meaning), and thus has some rhetorical force,

Miami is not and never was a “sanctuary city,” and the issue raised by the petition at bar has nothing to do with affording “sanctuary” to those unlawfully in this country. It has everything to do with the separation of powers between the state and federal governments as reflected in the Tenth Amendment to, and in the very structure of, the United States Constitution.

Nevertheless, near the end of the opinion, Judge Hirsch repeats his conclusion that "Miami is not, and has never been, a sanctuary city," and then adds:"But America is, and has always been, a sanctuary country." He quotes one of his own previous opinions and includes a footnote quoting Emma Lazarus, The New Colossus and discussing the dedication of the Statue of Liberty.

Second, Judge Hirsch raises the specter of unbridled Executive power.  He notes that although the "presidential edict at issue here seeks to bring about the conscription of the corrections department, and employs powerful financial pressure to do so," the Spending Power is vested in Congress under Art. I §8 cl. 1 rather than the Executive.  Additionally:

No doubt the limitations imposed by the Tenth Amendment, like so many limitations imposed by the Constitution, are a source of frustration to those who dream of wielding power in unprecedented ways or to unprecedented degrees. But America was not made for those who dream of power. America was made for those with the power to dream.

 It does not seem too far of a stretch to read this as a critique of the current President.

The case is sure to be appealed.  But whatever happens on appeal in this case, there is similar litigation throughout the nation, including the lawsuit by San Franscisco.

[images: Cape Florida Lighthouse, Miami-Dade County via & in 1830, via]

Court Decides Bethune-Hill on Racial Gerrymandering: New Equal Protection Standard on Remand

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

In its opinion in Bethune-Hill v. Virginia State Board of Elections, the Court clarified the standard for deciding whether racial considerations in reapportionment violate the Equal Protection Clause. It affirmed the three-judge court's decision as to one of the districts as constitutionally considering race, but remanded the determination of the constitutional status of the other eleven districts.

Recall that the challenge was to the three-judge court’s decision and order holding that a number of Virginia House of Delegates districts did not constitute unlawful racial gerrymanders in violation of the Equal Protection Clause. Virginia did consider race in the redistricting, but the question was whether race was the predominant (and thus unconstitutional) consideration. The three-judge lower court required an “actual” conflict between the traditional redistricting criteria and race.

In the opinion authored by Justice Kennedy, and joined by Chief Justice Roberts, as well as Justices Ginsburg, Breyer, Sotomayor, and Kagan, the Court clarified the relationship between traditional redistricting principles and unconstitutional racial gerrymandering:

The Equal Protection Clause does not prohibit misshapen districts. It prohibits unjustified racial classifications.

More precisely, although there is a racial classification if "redistricting legislation that is so bizarre on its face that it is unexplainable on grounds other than race," as in Shaw v. Reno, (1993), this "inconsistency between the enacted plan and traditional redistricting criteria is not a threshold requirement or a mandatory precondition in order for a challenger to establish a claim of racial gerrymandering."  The Court admitted that "to date " it had not affirmed a racial predominance finding, or remanded a case for a determination of predominance, "without evi­dence that some district lines deviated from traditional principles." Nevertheless, "there may be cases where challengers will be able to establish racial predominance in the absence of an actual conflict by presenting direct evidence of the legislative purpose and intent or other compelling circumstantial evidence." 

Given this articulation of the standard, the three-judge court's analysis of whether there was racial gerrymandering applied only to the portions of the districts that deviated from traditional requirements was clearly problematical.  Indeed,

the basic unit of analysis for racial gerrymander­ing claims in general, and for the racial predominance inquiry in particular, is the district.

The ultimate object of the inquiry, however, is the legis­lature’s predominant motive for the design of the district as a whole. A court faced with a racial gerrymandering claim therefore must consider all of the lines of the district at issue; any explanation for a particular portion of the lines, moreover, must take account of the district wide context. Concentrating on particular portions in isolation may obscure the significance of relevant district wide evidence, such as stark splits in the racial composition of populations moved into and out of disparate parts of the district, or the use of an express racial target. A holistic analysis is necessary to give that kind of evidence its proper weight.

The Court declined the parties' request to apply this standard and remanded the matter of eleven districts. 

As to the twelfth district (district 75), the Court affirmed the three-judge court's finding that race predominated but also that the redistricting satisfied strict scrutiny.  The Court found that not violating §5 of the Voting Rights Act - - - operative then despite the VRA's subsequent erosion in Shelby County v. Holder - - - was a compelling government interest and that the district was narrowly tailored to serve that interest. In his partial dissent, Justice Thomas insisted that this very analysis "is fundamentally at odds with our “color-blind” Constitution, which “neither knows nor tolerates classes among citizens,” citing Plessy v. Ferguson (1896) (Harlan, J., dissenting). Justice Thomas then argued that this "contradiction illustrates the perversity of the Court’s jurisprudence in this area as well as the uncomfortable position in which the State might find itself."

Despite the articulation of a somewhat new standard, Bethune-Hill does not seem to be a major opinion and the Court states its "holding in this case is controlled by precedent." Interestingly, the Court did not issue its opinion on the other racial gerrymandering case, McCrory v. Harris, arising in North Carolina and argued on the same day.

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