Constitutional Law Prof Blog

Seventh Circuit Affirms Preliminary Injunction Against School District in Transgender Sex-Segregated Restroom Case

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

In its opinion in Whitaker v. Kenosha Unified School District, Judge Ann Williams begins for the unanimous panel including Chief Judge Diane Wood and Judge Illana Rovner, by stating that  the issue would seem to be a "simple request: to use the boys' restroom while at school," but the school district believed it was "not so simple because Ash is a transgender boy."

The Seventh Circuit decision to affirm the preliminary injunction directing the school district allowing the plaintiff, a transgender student, Ash (also known as Ashton), to use the boy's restroom rests both on Title IX and the Equal Protection Clause.  As a preliminary issue, the court found that pendent jurisdiction of the district court's order denying the school district's motion to dismiss was not appropriate.

On the likelihood to succeed on the merits of Title IX, the court considered companion Title VII doctrine in the circuit, including the doctrine of sex-stereotyping.  The fact that Congress has not added transgender status to Title IX (or Title VII) was not determinative.  Instead,

Ash can demonstrate a likelihood of success on the merits of his claim because he has alleged that the School District has denied him access to the boys’ restroom because he is transgender. A policy that requires an individual to use a bathroom that does not conform with his or her gender identity punishes that individual for his or her gender non‐conformance, which in turn violates Title IX. The School District’s policy also subjects Ash, as a transgender student, to different rules, sanctions, and treatment than non‐transgender students, in violation of Title IX. Providing a gender‐neutral alternative is not sufficient to relieve the School District from liability, as it is the policy itself which violates the Act. Further, based on the record here, these gender‐neutral alternatives were not true alternatives because of their distant location to Ash’s classrooms and the increased stigmatization they caused Ash. Rather, the School District only continued to treat Ash differently when it provided him with access to these gender‐neutral bathrooms because he was the only student given access.

And, while the School District repeatedly asserts that Ash may not “unilaterally declare” his gender, this argument misrepresents Ash’s claims and dismisses his transgender status. This is not a case where a student has merely announced that he is a different gender. Rather, Ash has a medically diagnosed and documented condition. Since his diagnosis, he has consistently lived in accordance with his gender identity. This law suit demonstrates that the decision to do so was not without cost or pain.

On the Equal Protection Clause claim, the court found that "the School District's policy cannot be stated without referencing sex" and thus the correct level of scrutiny should be the heightened one for sex classifications, citing United States v. Virginia (VMI) (1996).  The court rejected the District's asserted interest of protecting the "privacy rights" of all the other students as too abstract and conjectural to be genuine.  Moreover, the court faulted the representation at oral argument regarding the necessity for a birth certificate by first noting that this was not in the policy itself, and later returning to the issue regarding passports. Perhaps more importantly, the court also critiqued the notion of documents to prove sex designations:

Further, it is unclear that the sex marker on a birth certificate can even be used as a true proxy for an individual’s biological sex. The marker does not take into account an individual’s chromosomal makeup, which is also a key component of one’s biological sex. Therefore, one’s birth certificate could reflect a male sex, while the individual’s chromosomal makeup reflects another. It is also unclear what would happen if an individual is born with the external genitalia of two sexes, or genitalia that is ambiguous in nature. In those cases, it is clear that the marker on the birth certificate would not adequately account for or reflect one’s biological sex, which would have to be determined by considering more than what was listed on the paper.

 Thus, court found the School District did not satisfy the equal protection standard of United States v. Virginia. 

Recall that the district judge in Evancho v. Pine-Richland School District reached a similar conclusion on the Equal Protection Clause in February, and the constitutional claim seems to have more traction given the Title IX claim's uncertainty after the Court's dismissal and remand of  G.G. v. Glouster County School Board.

 

Fourth Circuit En Banc Upholds Injunction Against President's "Travel Ban"

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

In its opinion in International Refugee Assistance Project (IRAP)  v. Trump, heard by the en banc court without an intervening panel decision, the court affirmed in almost every respect Maryland District Judge Theodore Chuang's Opinion and 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 court heard oral argument on May 8. 

The court's opinion finding that the plaintiffs have standing and that the plaintiffs are likely to succeed on the merits of their Establishment Clause challenge to the Executive Order was authored by Chief Judge Roger Gregory with six other judges joining in full in the almost 80 page opinion.  Additional opinions bring the total opinion pages to over 200: three other judges concurred in separate opinions;  Three judges dissented in separate opinions (with the dissenters joining each of the dissenting opinions). Recall that two other judges recused. 

On the merits of the Establishment Clause claim as applied to an Executive Order involving immigration, Judge Gregory's opinion for the court agreed with the United States that the deferential standard in Kleindienst v. Mandel (1972) is the appropriate starting point but disagreed with the government that it ended the inquiry.  Instead, "Mandel's requirement that an immigration action be 'bona fide' may in some instances compel more searching judicial review."  The court found that while the national security interest was facially legitimate, the plaintiffs made a requisite showing that it was provided in "bad faith."

Plaintiffs point to ample evidence that national security is not the true reason for EO-2, including, among other things, then-candidate Trump’s numerous campaign statements expressing animus towards the Islamic faith; his proposal to ban Muslims from entering the United States; his subsequent explanation that he would effectuate this ban by targeting “territories” instead of Muslims directly; the issuance of EO-1, which targeted certain majority-Muslim nations and included a preference for religious minorities; an advisor’s statement that the President had asked him to find a way to ban Muslims in a legal way; and the issuance of EO-2, which resembles EO-1 and which President Trump and his advisors described as having the same policy goals as EO-1. [citations to record omitted].  Plaintiffs also point to the comparably weak evidence that EO-2 is meant to address national security interests, including the exclusion of national security agencies from the decisionmaking process, the post hoc nature of the national security rationale, and evidence from DHS that EO-2 would not operate to diminish the threat of potential terrorist activity.

Having cleared the hurdle of Mandel, the court then considered the application of the Establishment Clause test articulated in Lemon v. Kurtzman, noting that "in the context of this case, there is an obvious symmetry between Mandel's "bona fide" prong and the constitutional inquiry establishment in Lemon. Both tests ask courts to evaluate the government's purpose for acting."

Thus, Judge Gregory's opinion analyzed some of the same material regarding the EO's bona fide quality to determine whether the EO had a primary secular government purpose as required under Lemon's first prong.  But the analysis the court conducted under Lemon was much more detailed.  The court relied upon McCreary County v. ACLU of Kentucky (2005), in which the United States Supreme Court concluded that a judge's initial removal of his posting of the Ten Commandments in the courthouse was not cured by his subsequent posting of the biblical text surrounded by other texts.  In McCreary, the Court articulated the correct viewpoint as the "reasonable objective observer" who should take into account the traditional external signs but should not perform judicial psychoanalysis. 

It is this portion of the opinion (Part IVA2; pages 54-70 in text) regarding the purpose of EO-2 that is central.  The court finds there is a "compelling case" that EO-2's "primary purpose is religious."  It begins by discussing the candidate's campaign statements, later rejecting the argument that these statements should be subject to a "bright-line rule" that they should not be considered.  Instead, the court states that the "campaign statements here are probative of purpose because they are closely related in time, attributable to the primary decisionmaker, and specific and easily connected to the challenged action." 

Just as the reasonable observer’s “world is not made brand new every morning,” McCreary,  nor are we able to awake without the vivid memory of these statements. We cannot shut our eyes to such evidence when it stares us in the face, for “there’s none so blind as they that won’t see.” Jonathan Swift, Polite Conversation 174 (Chiswick Press ed., 1892). If and when future courts are confronted with campaign or other statements proffered as evidence of governmental purpose, those courts must similarly determine, on a case-by-case basis, whether such statements are probative evidence of governmental purpose. Our holding today neither limits nor expands their review.

Moreover, the court considered the by now familiar statements by spokespeople: advisor and former mayor Rudolph Guiliani on EO-1; Senior Policy Advisor Miller and White House Press Secretary Spicer on EO-2.  The court further found that the government's argument that EO-2's primary purpose was national security rather than religious

is belied by evidence in the record that President Trump issued the First Executive Order without consulting the relevant national security agencies, J.A. 397, and that those agencies only offered a national security rationale after EO-1 was enjoined. Furthermore, internal reports from DHS contradict this national security rationale, with one report stating that “most foreign-born, US-based violent extremists likely radicalized several years after their entry to the United States, limiting the ability of screening and vetting officials to prevent their entry because of national security concerns.” According to former National Security Officials, Section 2(c) serves “no legitimate national security purpose,” given that “not a single American has died in a terrorist attack on U.S. soil at the hands of citizens of these six nations in the last forty years” and that there is no evidence of any new security risks emanating from these countries. Corrected Brief for Former National Security Officials as Amici Curiae Supporting Appellees 5–8, ECF No. 126-1. Like the district court, we think this strong evidence that any national security justification for EO-2 was secondary to its primary religious purpose and was offered as more of a “litigating position” than as the actual purpose of EO-2. See McCreary, 545 U.S. at 871 (describing the government’s “new statements of purpose . . . as a litigating position” where they were offered to explain the third iteration of a previously enjoined religious display). And EO-2’s text does little to bolster any national security rationale: the only examples it provides of immigrants born abroad and convicted of terrorism-related crimes in the United States include two Iraqis—Iraq is not a designated country in EO-2—and a Somalian refugee who entered the United States as a child and was radicalized here as an adult. EO-2, § 1(h). The Government’s asserted national security purpose is therefore no more convincing as applied to EO-2 than it was to EO-1.

In short, the court found that EO-2 cannot be divorced from the cohesive narrative linking it to the animus that inspired it," and thus EO-2 "likely fails Lemon's purpose prong" and is unconstitutional under the Establishment Clause.

The court affirmed the preliminary injunction as appropriately nationwide, but did agree with the government that the injunction should not be issued "against the President himself."  Thus, the injunction was lifted in that regard, although the court noted that while the President was not directly bound, the court assumes "it is substantially likely" that the President would abide by the the court's authoritative interpretation of section 2 of EO-2.

Recall that a Ninth Circuit panel is also considering the constitutionality of EO-2; it heard oral arguments on May 15 in Hawai'i v. Trump.

Fourth Circuit Says Case Challenging NSA Upstream Surveillance Can Move Forward

Steven D. Schwinn, John Marshall Law School

The Fourth Circuit ruled yesterday that a case challenging the NSA's upstream surveillance program can move forward. The ruling reverses a district court ruling that dismissed the case for lack of standing, citing Clapper v. Amnesty International. The Fourth Circuit distinguished Clapper, however, and let the case move forward.

In short, the two key differences in Clapper: Wikimedia has more communications with a larger, more comprehensive reach than the plaintiffs in Clapper; and the plaintiffs here learned (and pleaded) more about the nature of the program.

In so ruling, the court followed the Third Circuit's approach in a similar case last year, Schuchardt v. President of the United States.

The case involved two challenges to the upstream surveillance program under Section 702 of the FISA Amendments Act of 2008. (This program authorizes the government, subject to certain controls, to collect and search electronic communications between an overseas target and a person in the US.) In the first challenge, the "Wikimedia challenge," Wikimedia argued that given its size and amount of international communications, and given the nature of the upstream surveillance program, the NSA necessarily collected at least some of its Internet communications. In the second challenge, the "dragnet challenge," plaintiffs argued that the nature of the NSA program alone likely meant that the NSA in fact collects all Internet communications. (The plaintiffs in this case had more information about the nature of the program than the plaintiffs in the earlier Clapper case, so could plead a stronger argument.)

The court ruled that "Wikimedia has plausibly alleged that its communications travel all the roads that a communication can take, and that the NSA seizes all of the communications along at least one of those roads." Moreover, "because Wikimedia has self-censored its speech and sometimes forgone electronic communications in response to Upstream surveillance, it also has standing to sue for a violation of the First Amendment." As to Clapper: "Unlike in Clapper, where the plaintiffs based their theories of standing on prospective or threatened injury and actions taken in response thereto, Wikimedia pleaded an actual and ongoing injury [actual, not speculative, collection of at least some of Wikimedia's communications], which renders Clapper's certainly-impending analysis inapposite here.

But at the same time, the court ruled that the plaintiffs lacked standing to assert the dragnet challenge. In short, the court said that the plaintiffs could not "plausibly establish that the NSA is intercepting 'substantially all' text-based communications entering and leaving the United States." (In contrast, Wikimedia only had to show that the NSA is conducting upstream surveillance on a single backbone link on the Internet connections to the United States, which it did.)

Judge Davis concurred with the result as to the Wikimedia challenge, but dissented as to the dragnet challenge: "However, because I would find that the non-Wikimedia Plaintiffs also have standing, I respectfully dissent in part."

DOJ Tightens Sanctuary Cities EO and Moves to Reconsider Court's Injunction

Steven D. Schwinn, John Marshall Law School

AG Jeff Sessions issued a memo yesterday tightening President Trumps "sanctuary cities" executive order. The government then asked Judge Orrick to reconsider his earlier preliminary injunction halting the EO.

We posted on Judge Orrick's order here, with links to earlier posts.

Sessions's memo specifies that the government can only withhold certain DOJ and DHS grants (and not all federal grants) from sanctuary cities. Moreover, he wrote that DOJ will apply a certification requirement (putting the grant recipients on notice that they could lose funds if they "willfully refuse to comply with 8 U.S.C. 1373" (see below)) "to any existing grant administered by the Office of Justice Programs and the Office of Community Oriented Policing Services that expressly contains this certification condition and to future grants for which the Department is statutorily authorized to impose such a condition."

This portion of the memo is designed to satisfy the clear-notice requirement, the relatedness requirement, and no-pressure-into-compulsion requirement for conditioned federal spending.

Sessions's memo also defined "sanctuary jurisdiction" (for the first time) as "jurisdictions that 'willfully refuse to comply with section 1373.'" This portion of the memo is designed to exempt jurisdictions that do not "willfully refuse to comply with section 1373," including some that have sued the government.

At the same time, the government asked Judge Orrick to revise or lift his earlier preliminary injunction. The government's argument is that Sessions's memo takes care of all the likely legal problems that Judge Orrick identified (the conditions for federal spending, mentioned above) and leaves the plaintiffs with no standing.

SCOTUS Finds Racial Gerrymander in North Carolina Violates Equal Protection Clause

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

In its opinion in Cooper v. Harris, formerly McCrory v. Harris, the Court affirmed the findings of a three-judge District Court that North Carolina officials violated the Equal Protection Clause in the 2011 redistricting with regard to two districts: District 1 and District 12.

Recall that in Bethune-Hill v. Virginia State Board of Elections (argued the same day as Cooper v. Harris), the Court clarified the analysis for reviewing racial gerrymandering claims and remanded the matter back to the three judge District Court to determine 11 out of the 12 districts at issue. 

Justice Elana Kagan, writing for majority in Cooper v. Harris, provides the analytic structure for assessing challenges to racial gerrymandering under the Equal Protection Clause:

• First, the plaintiff must prove that “race was the predominant factor motivating the legislature’s decision to place a significant number of voters within or without a particular district,” quoting Miller v. Johnson (1995).  This means that the legislature "subordinated other factors," including geographic ones, partisan advantage, and "what have you" to racial considerations.
• Second, if racial considerations predominated over others, the design of the district must withstand strict scrutiny, requiring a compelling governmental interest achieved by narrowly tailored means. 
  • A recognized compelling governmental interest is compliance with the Voting Rights Act (VRA) is a compelling governmental interest. "This Court has long assumed that one compelling interest is complying with operative provisions of the Voting Rights Act of 1965."
  • To satisfy the narrow-tailoring requirement, the state must show that it had “a strong basis in evidence” for concluding that the VRA required its action. "Or said otherwise, the State must establish that it had “good reasons” to think that it would transgress the Act if it did not draw race-based district lines," a standard which "gives States “breathing room” to adopt reasonable compliance measures that may prove, in perfect hindsight, not to have been needed."

The Court unanimously agrees that District 1 fails this standard.  The racial intent in redistricting was clear.  As to the means chosen, the Court rejected North Carolina's argument that it redesigned the district to comply with the VRA because in fact District 1 had historically been a "cross-over" district in which "members of the majority help a large enough minority to elect a candidate of its choice.  In other words, there was no 'White Bloc' operating in District 1.  The Court rejected North Carolina's argument that this could occur in the future, especially since the entire state was being redrawn.  The Court notes that the officials seemed to believe - - - incorrectly - - - that they were required to draw a majority Black district, despite any evidence of "cross-over."

image: Appendix 1 to Court's opinion;
note District 1 in yellow and District 12 in orange.

 The Court divided on the constitutionality of District 12, however.  The only issue was whether or not the redistricting was racial; North Carolina did not argue it could satisfy strict scrutiny if race predominated.  Writing for the Court, Justice Kagan, joined by Justices Thomas, Ginsburg, Breyer, and Sotomayor, affirmed the findings of the three judge district court that District 12 was redrawn with reference to race.  North Carolina contended that the officials redrew the district only with reference to political affiliation (which would not violate the Equal Protection Clause), arguing that the goal was to "pack" District 12 with Democrats (and thereby render other districts more Republican).  Justice Kagan noted that the determination of whether an act was racially-motivated or politically-motivated involved a "sensitive inquiry" and that racial identification is "highly correlated" with political affiliation. But for the majority, the District Court's finding of racial predominance must be affirmed:

The evidence offered at trial, including live witness testimony subject to credibility determinations, adequately supports the conclusion that race, not politics, accounted for the district’s reconfiguration. And no error of law infected that judgment: Contrary to North Carolina’s view,the District Court had no call to dismiss this challenge just because the plaintiffs did not proffer an alternative design for District 12 as circumstantial evidence of the legislature’s intent.

Writing the dissenting opinion, Justice Alito, joined by Chief Justice Roberts and Justice Kennedy (who authored Bethune-Hill), vigorously contested the finding of racial intent.  Alito faults the majority as well as the District Court as being obtuse:  "The majority’s analysis is like Hamlet without the prince."  This bit of snark in the body of the dissent, earns a rebuke from the majority in a footnote to its statement that this district is back before the Court for the sixth time, criticizing the dissent for simply adopting North Carolina's version: "Imagine (to update the dissent’s theatrical reference) Inherit the Wind retold solely from the perspective of William Jennings Bryan, with nary a thought given to the competing viewpoint of Clarence Darrow."  In a counter footnote, Alito defends the opinion from merely accepting North Carolina's explanation. 

The alternative map argument is also a point of contention.  For the majority, it is one way of demonstrating that the redistricting officials acting on the basis of race:

If you were really sorting by political behavior instead of skin color (so the argument goes) you would have done—or, at least, could just as well have done—this.  Such would-have, could-have, and (to round out the set) should-have arguments are a familiar means of undermining a claim that an action was based on a permissible,rather than a prohibited, ground.

But, the majority emphasizes, such strategies are "hardly the only way."  For the dissent, a passage from Easley v. Cromartie, (2001) (Cromartie II), involving essentially the same district, is determinative: plaintiffs must show that the officials could have achieved their political goals in a manner with more racial balance.

Interestingly, in his brief concurring opinion, Justice Thomas references Cromartie II, in which he dissented.  Thomas contends that Cromartie II misapplied the "deferential standard for reviewing factual findings," an error which the present decision "does not repeat."

Special Counsel Appointment Docs and Regs

Deputy AG Rod Rosenstein's press release announcing the appointment of former FBI Director Robert S. Mueller III to serve as Special Counsel is here. The appointment order is here. The order includes the following authority:

to conduct the investigation confirmed by then-FBI Director James B. Comey in testimony before the House Permanent Select Committee on Intelligence on March 20, 2017, including:

(i) any links and/or coordination between the Russian government and individuals associated with the campaign of President Donald Trump; and

(ii) any matters that arose or may arise directly from the investigation; and

(iii) any other matters within the scope of 28 CFR Sec. 600.4(a).

Rosenstein is acting AG for the purpose of the appointment, because AG Sessions recused himself. As Acting AG, Rosenstein has the AG's authority to appoint a special counsel under 28 USC 515.

DOJ regs on special counsel are at 28 CFR 600.1 - 600.10. Section 600.4 says that the special counsel's jurisdiction is set by the AG (or in this case the Acting AG) and provides for additional jurisdiction, with permission of the AG. Section 600.6 sets out the special counsel's power and authority, and provides for its independence. Section 600.7 says who the special counsel reports to ("The Special Counsel shall not be subject to the day-to-day supervision of any official of the Department."), when and how the AG can intervene in the Special Counsel's operations (when the AG concludes that "the action is so inappropriate or unwarranted under established Departmental practices that it should not be pursued."), and when and how the Special Counsel can be disciplined or removed ("for misconduct, dereliction of duty, incapacity, conflict of interest, or for other good cause, including violation of Departmental policies.").

D.C. Circuit Tosses Backpage.com's Challenge of Senate Subpoena

Steven D. Schwinn, John Marshall Law School

The D.C. Circuit ruled yesterday that Backpage.com's challenge to a subpoena issued by the Senate Permanent Subcommittee on Investigations was moot. The court dismissed Backpage.com's case and vacated earlier district court rulings.

The case arose when the Subcommittee sought to enforce its subpoena for Backpage.com documents to aid its investigation into the web-site's facilitation of sex trafficking. While the case worked its way between the district court and the D.C. Circuit, Backpage.com voluntarily provided the Subcommittee with a good many of the documents the Subcommittee sought (but withheld some other documents under claims of privilege). Before the D.C. Circuit could rule on Backpage.com's challenge to the subpoena, the Subcommittee wrapped up its investigation based on the released documents and issued its final report. The Subcommittee then moved to dismiss the case as moot.

In its ruling yesterday, the D.C. Circuit agreed with the Subcommittee. The court rejected Backpage.com's argument that the district court might still order some relief (for example, an order that the Subcommittee destroy or return the documents still in its possession), thus keeping the case alive, because "the separation of powers, including the Speech or Debate Clause," bars a court from ordering a congressional committee to release documents used in a lawful investigation. In particular, the court wrote that under circuit law "the Clause affords Congress a 'privilege to use materials in its possession without judicial interference,' even where unlawful acts facilitated their acquisition." (Unlawful acts did not facilitate their acquisition here; instead, Backpage.com provided them.) In short, once documents come into the hands of a committee, "the subsequent use of the documents by the committee staff in the course of official business is privileged legislative activity."

The court rejected Backpage.com's argument that the Subcommittee waived its privilege by voluntarily subjecting itself to the court's jurisdiction (when it filed to enforce the subpoena): "[w]hen Congress petitions the court in a subpoena enforcement action, Congress does not waive its immunity from court interference with its exercise of its constitutional powers."

The court also rejected Backpage.com's argument that the case was capable of repetition but evading review. The court said a repeat was simply too speculative.

The ruling doesn't leave future subjects of congressional subpoenas without a remedy. According to the court, such subjects should refuse to comply during the legal proceedings so that the courts can hear their objections on the merits.

In other words, Backpage.com's mistake was voluntarily releasing the documents in the first place.

The separation-of-powers part of the ruling stands in contrast to the Court's holding in Church of Scientology of California v. United States, a case that the D.C. Circuit distinguished. In Church of Scientology, the IRS filed a petition to enforce a summons against a state-court clerk for tape recordings related to the Church in district court, and the Church intervened to oppose. While the case was on appeal, the clerk released the tapes to the IRS, at while point the appellate court dismissed the case as moot. The Supreme Court reversed, however, explaining that the case remained alive because the district court could still issue relief to the Church--a "destroy or return" order.

The D.C. Circuit said that Church of Scientology was different, however, because "the separation of powers, including the Speech or Debate Clause," bars a court from ordering that same kind of relief against Congress.

State Divorce Division of Military Disability Pay Preempted

Steven D. Schwinn, John Marshall Law School

The Supreme Court ruled yesterday that the federal scheme covering service-member retirement and disability pay preempts a state court divorce decree that granted the former spouse of a retired service-member a portion of his disability benefits.

The ruling in Howell v. Howell settles a split in the state courts.

The case involves the way that federal law provides for veterans' retirement and disability pay, and the way that state courts can divide that pay in a divorce. Under federal law, a qualified veteran receives taxable retirement pay. A qualified veteran can also receive nontaxable disability pay. But if a veteran opts to receive disability pay, the disability pay off-sets his or her retirement pay dollar for dollar, so that the total amount of pay remains the same. Still, most veterans who qualify for disability pay opt for disability pay, because it's not taxed.

Under the federal Uniformed Services Former Spouses' Protection Act of 1982, a state may treat a veteran's retirement pay as divisible property in a divorce. But the Act explicitly excludes disability pay from divisible retirement pay. The Supreme Court ruled in Mansell v. Mansell that a state court cannot divide disability pay in a divorce when the veteran received both retirement pay and disability pay before the divorce. (The Court held that the Act preempted a state court ruling to the contrary.) Howell tested whether the Act compelled this same result when a veteran opted for disability pay well after the divorce. (The difference matters, because the spouse in Howell would take a cut in total payments if the same rule applied when the veteran spouse opted for disability pay after the divorce.)

The unanimous Court (Justice Gorsuch recused) held that the same rule applied, whether the veteran spouse opted for disability pay before the divorce or after. The Court said that Mansell dictated the result, and that the different timing didn't matter: "the temporal difference highlights only that John's military retirement pay at the time it came to Sandra was subject to later reduction (should John exercise a waiver to receive disability benefits to which he is entitled)."

The Court also rejected the theory that the state court could "reimburse" or "indemnify" the spouse, rather than outright dividing the disability pay: "The difference is semantic and nothing more. . . . Regardless of their form, such reimbursement and indemnification orders displace the federal rule and stand as an obstacle to the accomplishment and execution of the purposes and objectives of Congress." (Justice Thomas concurred but wrote separately to disagree with this latter portion of the ruling--on "purposes and objectives" pre-emption. "As I have previously explained, '[t]hat framework is an illegitimate basis for finding the pre-emption of state law.'")

The Court recognized the "hardship" that this result may "work on divorcing spouses," and noted that state courts might take this into account when it calculates the need for spousal support.

Ninth Circuit Oral Arguments in Hawai'i v. Trump

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

A panel of the Ninth Circuit - - - Judge Ronald Gould, Judge Richard Paez, and Senior Judge Michael Hawkins - - - heard oral arguments in Hawai'i v. Trump, the appeal from the preliminary 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) (colloquially known as the revised travel ban or "Muslim Ban 2.0").

Arguing for the DOJ in favor of the United States was Acting Solicitor General Jeffrey Wall, who also argued the same position a week ago in the Fourth Circuit en banc argument in Trump v. International Refugee Assistance Project (IRAP).  Indeed, there were specific references in the Ninth Circuit argument to that argument with regard to the scope of the injunction in Hawai'i v. Trump.  The argument spent a fair amount of time on the statutory claims, which were a basis of Maryland District Judge Theodore Chuang's injunction on appeal to the Fourth Circuit, but were not the basis of the injunction by Hawai'i District Judge Derrick Watson, who ruled on the basis of the Establishment Clause.  The issue of standing also peppered the arguments.  Wall's argument in the Ninth Circuit seemed less emphatic about the "presumption of regularity" entitled to the President than the argument last week, perhaps because of intervening events. Wall certainly did, however, hammer the Government's point that the deferential standard of Kleindienst v. Mandel (1972) should apply.  And although it was not specifically referenced, the dissent from en banc review in a Ninth Circuit precursor case, Washington v. Trump, which largely rested on Mandel, implicitly shaped the arguments.

For his part, arguing for Hawai'i, Neal Katyal, formerly with the Department of Justice, stressed that the Ninth Circuit's panel opinion in Washington v. Trump should be the model.  Katyal argued that the EO was unprecedented.

The video of the argument is worth watching, not only for its explication of the issues, but also as examples of excellent appellate advocacy.

 

However, there was a quite odd interchange regarding Neal Katyal's previous litigation stances.  At around 52:03 in the video above, Senior Judge Hawkins said to Katyal, "You have argued in the past to give deference to the Executive in immigration matters." After Katyal's acknowledgement, Judge Hawkins refers to an amicus brief in United States v. Texas and reads a passage.  The brief to which Hawkins seems to have been referring is Brief of Former Commissioners of the United States Immigration and Naturalization Service as Amici Curiae In Support Of Petitioners and the portions seem to be from page 12 of the brief, supporting the Congressional grant of wide authority to make decisions regarding deferred action in immigration deportations.  After Katyal's response, Judge Hawkins made a second reference: "You also wrote a brief in Flores-Villar."  The brief to which Hawkins refers is Katyal's brief as Acting Solicitor General for the Respondent United States in Flores-Villar v. United States, involving a mother-father differential for unwed parents.  Judge Hawkins reads the following passage without the case references or citations:

[T]he United States’ “policy toward aliens” is “vitally and intricately interwoven with * * * the conduct of foreign relations,” a power that likewise is vested in the political Branches. Harisiades v. Shaughnessy, 342 U.S. 580, 588-589 (1952). “Any rule of constitutional law that would inhibit the flexibility of the political branches of government to respond to changing world conditions should be adopted only with the greatest caution.” Mathews v. Diaz, 426 U.S. 67, 81 (1976).

Katyal responds that when he was with the United States Government he tried to convince the United States Supreme Court of this, but the Court "did not bite."  Recall that Flores-Villar was a 4-4 affirmance of the Ninth Circuit.

Certainly, both United States v. Texas, which has usually surfaced in the context of a state's standing, and Flores-Villar are somewhat pertinent immigration cases involving the scope of judicial deference.  Nevertheless, specific references to an individual attorney's briefs does seem unusual.

 

Trump Sacks Comey

Steven D. Schwinn, John Marshall Law School

President Trump fired FBI Director James Comey today in a move that some are comparing to President Nixon's Saturday Night Massacre in the Watergate investigation. That's because Comey is leading a criminal investigation into whether Trump advisors worked with the Russian government to influence the 2016 presidential election.

The timing of the sacking--amid the Russia investigation, and for things that happened as far back as July 2016--raises significant questions about President Trump's reasons for firing Comey. It also raises questions whether a future FBI director can aggressively pursue the Russia investigation, or any other investigation that the administration disfavors, without fear of retribution.

As a result, President Trump's move elicited a new round of calls from congressional Democrats for an independent counsel into any Russian collusion.

Here's a document that includes a statement from the White House, President Trump's letter to Comey, AG Sessions' letter to President Trump, and the DOJ legal analysis and recommendation to fire Comey.

Deputy AG Rod Rosenstein, who penned the DOJ memo, wrote that Comey "usurp[ed] the Attorney General's authority on July 5, 2016, and announce[d] his conclusion the [Clinton e-mail] case should be closed without prosecution," and that Comey held "press conferences to release derogatory information about the subject of a declined criminal investigation," Clinton, in violation of "another longstanding principle." Rosenstein wrote that his "perspective on these issues is shared by former Attorneys General and Deputy Attorneys General from different eras and both political parties."

Fourth Circuit En Banc Hears Appeal from Injunction Against "Muslim Ban 2.0"

The Fourth Circuit en banc heard almost two hours of intense oral arguments in Trump v. International Refugee Assistance Project (IRAP) from Maryland District Judge Theodore Chuang's Opinion and 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 court of 13 Judges (there were recusals from Harvey Wilkinson III whose son-in-law is Jeffrey Wall, Acting Solicitor General arguing for the United States, and Allison Duncan), were very active and asked the questions which are by now familiar, including standing, the constitutional "choice" between Executive power in immigration and Establishment Clause doctrine, and the statutory under Immigration and Nationality Act.  (We discuss these issues and Judge Chuang's ruling here).  The opening question, however - - - before Wall even had a chance to introduce himself - - - concerned the scope of Judge Chuang's injunction.

In its most basic terms, Wall defended the President's Executive Order by repeating that once the President takes the oath of office, his actions are entitled to a "presumption of regularity," thus the judiciary should not inquire further regarding any motive.  Representing the plaintiffs, ACLU attorney Omar C. Jadwat was pressed on how the court should look beyond the four corners of the EO and how long any taint from animus should last. 

The oral argument is available on C-SPAN, with an official transcript from the court forthcoming.

 

Next Monday, a panel of the Ninth Circuit will hear the appeal in Hawai'i v. Trump.

 

Colbert, the FCC, and the First Amendment

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

Comedian Stephen Colbert has drawn ire and FCC scrutiny for a joke in his monologue implying the President of the United States is in a specific sexual position vis-a-vis the President of Russia.

The remark, which occurred on "The Late Show with Stephen Colbert" is within the so-called safe harbor provisions of the FCC regulation of indecent speech by "radio communication" (including traditional television such as CBS). 

The constitutionality of such regulation was upheld by the Court in FCC v. Pacifica Foundation (1978), involving comedian George Carlin's "Seven Dirty Words" monologue, which had provoked complaints to the FCC by listeners.  But Pacifica's continued viability seems questionable.  Justice Ruth Bader Ginsburg, concurring in FCC v. Fox Television Stations II (2012), which did not reach the First Amendment issues involving fleeting expletives, argued that Pacifica "was wrong when it issued," and further that time, technological advances, and FCC's "untenable rulings" show why Pacifica "bears reconsideration."  Ginsberg cites the concurring opinion of Justice Thomas in the FCC v. Fox Television Stations I, decided three years earlier, in which Thomas highlights the "dramatic technological advances" that "have eviscerated the factual assumptions" underlying Pacifica: traditional broadcast media is no longer pervasive or even dominant. 

Some might argue that the Colbert remark is “obscene” and that obscenity is categorically excluded from First Amendment protection.  But to be obscene, speech must meet the classic test from Miller v. California (1973), requiring that the average person find the speech appeals to the prurient interest, describes in a patently offensive way sexual conduct specifically defined by the applicable state law, and that the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.  Here, Colbert’s comment would not likely to be found obscene.  It does not appeal to the prurient interest, meaning some excessive or unhealthy interest in sex; it is not sexually arousing. 

Perhaps more importantly, it would be very difficult to find that the Colbert monologue “taken as a whole” lacks serious “political value.” In Hustler Magazine v. Falwell (1988), based on a parody about evangelist Jerry Falwell implying that his first sexual experience was with his mother in an outhouse,  Justice Rehnquist, wrote for the nearly unanimous Court about the importance of caustic humor for free political speech:

Despite their sometimes caustic nature, from the early cartoon portraying George Washington as an ass down to the present day, graphic depictions and satirical cartoons have played a prominent role in public and political debate. Nast's castigation of the Tweed Ring, Walt McDougall's characterization of Presidential candidate James G. Blaine's banquet with the millionaires at Delmonico's as "The Royal Feast of Belshazzar," and numerous other efforts have undoubtedly had an effect on the course and outcome of contemporaneous debate. Lincoln's tall, gangling posture, Teddy Roosevelt's glasses and teeth, and Franklin D. Roosevelt's jutting jaw and cigarette holder have been memorialized by political cartoons with an effect that could not have been obtained by the photographer or the portrait artist. From the viewpoint of history, it is clear that our political discourse would have been considerably poorer without them.

Colbert's remark, subject to critique as crude as well as homophobic, is nevertheless the type of political discourse protected by the First Amendment.

Here's the full clip, with the relevant passage starting at about 11:40, albeit with the offending language bleeped out as it was in the broadcast.

 

Is There Even Enough in Trump's Religion-Protection EO to Sue Over?

Steven D. Schwinn, John Marshall Law School

President Trump issued his long-awaited and much promoted executive order on protecting religious liberties today. Most say that when the rubber hits the road, the EO does, well, nothing at all, except maybe telegraph the President's feelings about the importance of protecting religious liberties. Even the ACLU, earlier geared up to sue, backed down when they read the actual language.

So: Is the ACLU right? Is there even enough in Trump's EO to sue over?

Probably not. Consider it, section by section:

Section 1 states that "[i]t shall be the policy of the executive branch to vigorously enforce Federal law's robust protections for religious freedom" and that "[t]he executive branch will honor and enforce those protections." At most this language states the administration's enforcement priorities for law that already exists.

Section 2 takes aim at the Johnson Amendment--that portion of IRC 501(c)(3) that bans nonprofits from directly or indirectly engaging in electioneering on behalf of, or in opposition to, any candidate for elective public office. (Nonprofits can engage in ordinary political speech; they do it all time. They just can't endorse candidates.) But the language of Section 2 does no such thing. It says, "the Secretary of the Treasury shall ensure, to the extent permitted by law, that the Department of the Treasury does not take any adverse action against any individual, house of worship, or other religious organization on the basis that such individual or organization speaks or has spoken about moral or political issues from a religious perspective, where speech of similar character has, consistent with law, not ordinarily been treated as participation or intervention in a political campaign on behalf of (or in opposition to) a candidate for public office by the Department of the Treasury." (Emphasis added.) In other words, the plain terms of Section 2 don't take down the Johnson Amendment (even if they could); instead, they comply with it.

Section 3 directs the relevant secretaries to "consider issuing amended regulations" to overturn the contraception mandate regs. Folks may agree or disagree over the wisdom of the contraception mandate, but there's nothing objectionable with a president asking an agency to "consider issuing amended regulations." And even if there were, the "consider" means that anyone challenging this portion of the EO could face an uphill battle to show standing.

The balance of the EO is just dressing.

In other words, the EO really doesn't do anything that one might sue over--at least yet. Even Section 2--the portion perhaps most likely to be challenged on Establishment Clause, Equal Protection, free speech, and "take care" grounds (and in fact challenged on exactly those grounds in a suit filed by the Freedom From Religion Foundation)--actually says that the administration will comply with the Johnson Amendment.

The Freedom From Religion Foundation wisely quotes President Trump throughout its complaint, arguing that the EO must be interpreted in light of his public statements (and thus drawing on this same (successful) strategy in other cases challenging the travel ban and the sanctuary cities EO).

But unlike those other EOs, the plain text of this one seems to do nothing--at least not yet.

Examining President Trump's First 100 Days

Check out the Illinois Law Review's outstanding, mile-wide and mile-deep on-line symposium Examining Trump's First 100 Days in Office: His Plan, Promises, and Pursuit of Making America Great Again.

A very impressive group of thirty-one authors write on topics ranging from governance issues (the judiciary, federalism, administrative law) to every hot area of domestic and foreign policy.

Sixth Circuit Says Damages Suit Against Kim Davis Can Move Forward

Steven D. Schwinn, John Marshall Law School

The Sixth Circuit ruled yesterday that a damages claim against Rowan County Clerk Kim Davis for denying a marriage license to a same-sex couple can move forward. The ruling reverses a lower court ruling that dismissed the case as moot and sends the case back for further proceedings.

This was one of three cases challenging Davis's refusal to issue marriage licenses to same-sex couples in the wake of Obergefell. The other two sought declaratory and injunctive relief; this one sought monetary damages.

After Kentucky passed a law that permitted county clerks to issue licenses without their names--an accommodation to Davis's religious objection--same-sex couples, including the plaintiffs here, received their marriage licenses. Courts then dismissed the two cases seeking declaratory and injunctive relief as moot (because the plaintiffs received their licenses), and the lower court dismissed this case as moot, too.

The Sixth Circuit reversed. The court held that the plaintiffs' claim for monetary damages continued to be a live dispute, despite Kentucky's accommodation law, because it sought relief for past harms to the plaintiffs that weren't remedied by their eventual receipt of a license. The court noted that a claim for monetary damages for past harms can live on, even if other portions of a suit for declaratory and injunctive relief (or other, related suits for those forms of relief) become moot.

Judge Siler concurred, but added that Davis might argue on remand that she was protected by the Kentucky Religious Freedom Restoration Act. In particular, Judge Siler argued that the district court "should have the first opportunity upon remand to decide whether that or any other provision of the law would protect Davis as a qualified-immunity or absolute-immunity defense under the circumstances."