Constitutional Law Prof Blog

Eighth Circuit Says No Standing to Sue Governor, AG for State's Roving Stops Law

Steven D. Schwinn, John Marshall Law School

The Eighth Circuit ruled this week that a dump truck driver lacked standing to bring a facial challenge to a state's roving-stop statute against the governor and state attorney general. But at the same time the court said that the plaintiff could move forward on his as-applied claim against the superintendent of the state highway patrol for declaratory and injunctive relief.

The case challenges Missouri's law that authorizes the highway patrol to stop commercial vehicles and inspect them for compliance with size- and weight-requirements, even without probable cause. Calzone, a dump-truck driver who was stopped under the act, sued the governor, state AG, and superintendent of the highway patrol in their official capacities for nominal monetary damages and injunctive and declaratory relief, arguing that the law was unconstitutional on its face and as applied.

The court ruled that Calzone didn't have standing to sue the governor or AG, because they weren't directly responsible and authorized to enforce the statute. The court said that he did have standing to sue the superintendent for declaratory and injunctive, however, because she was directly responsible for enforcement.

The court went on to rule that the statute wasn't facially unconstitutional, because it satisfied the three-part test for searches in "closely regulated industries" under New York v. Burger.

That leaves only Calzone's as-applied claim for declaratory and injunctive relief against the superintendent. (Calzone sued the superintendent in her official capacity, so couldn't recover damages under Section 1983.) The court remanded this claim to the district court for further proceedings.

Third Ciruit Issues Mixed Ripeness Ruling in Preenforcement Challenge to Escheat Law

Steven D. Schwinn, John Marshall Law School

The Third Circuit ruled this week that a case challenging Delaware's escheat law, prior to an investigation under the law, was ripe in one respect, even though it mostly was unripe. The ruling allows just one piece of the case to move forward--an as-applied procedural due process challenge.

The case arose when Delaware appointed a private auditing firm, Kelmar Associates, to investigate Plains All American Pipeline under the state's escheat law. Kelmar sent Plains a document request to initiate the investigation; Plains complained to the state; the state backed Kelmar; and Plains sued. Plains argued that the escheat law violated the Fourth Amendment, and the Ex Post Facto, Equal Protection, and Takings Clauses on their face, and the Due Process Clause as applied; it also argued that the law was void for vagueness and was preempted by federal law. It sought declaratory and injunctive relief.

The court applied its own "refined" test for ripeness, which looks to (1) the adversity of the parties' interests, (2) the conclusiveness of the judgment, and (3) the utility of the judgment. As to adversity, the court said that Plains couldn't demonstrate a sufficient harm, and that Plains didn't face an Abbott Labs Hobson's choice, to establish adversity. As to conclusiveness, the court said that Plains's challenges required further factual development for a ruling. And as to utility, the court said that the investigation currently requires Plains to do nothing: "Plains 'would take the same steps whether or not it was granted a declaratory judgment.'"

But, in contrast, the court ruled that Plains's as-applied procedural due process claim was ripe for review. The difference: Plains challenged the appointment of Kelmar as a violation of procedural due process. And because that harm already occurred, Plains could move forward to the merits. (Success on the merits, of course, is a different question.)

Federal Judge Declares Louisiana's Restriction on Non-Native Born Marriage Applicants Unconstitutional

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

 In an opinion in Vo v. Gee, Senior United States District Ivan L.R. Lemelle declared Louisiana's Act 436 violates both the Equal Protection and Due Process Clauses of the Fourteenth Amendment.

Act 436 amended the requirements to obtain a Louisiana marriage license so that an applicant born outside of the United States must submit a copy of the person's birth certificate under the raised seal or stamp of the vital statistics registration authority of the person's place of birth, with additional requirements if the document is not in English, and a valid and unexpired passport or an unexpired visa accompanied by a Form I-94 issued by the United States, verifying that the applicant is lawfully in the United States.  Viet "Victor" Ahn Vo, naturalized as a United States citizen at the age of 8, was nevertheless denied a marriage license because he did not have a birth certificate.  Vo was born in Indonesia in a refugee camp to parents who were Vietnamese nationals, relocating to Louisiana when Vo was three months of age.

On the equal protection issue, Judge Lemelle stated that the "birth certificate provisions that the Louisiana legislature enacted creates classifications that distinguish between United States citizens on the basis of their national origin," and thus merits strict scrutiny, requiring a compelling government interest which the statute serves by narrowly tailored means. Without discussing any interests put forward by the state, Judge Lemelle concluded that the "State of Louisiana fails to demonstrate in their opposition that this classification based on national origin furthers a compelling governmental interest."  The judge therefore concluded there was an equal protection violation.

On the due process challenge, Judge Lemelle cited the "fundamental right to marry" under Obergefell v. Hodges as well as the Zablocki v. Redhail (1978) test of directly and substantially interfering with marriage as warranting strict scrutiny.  The judge rejected Louisiana's claim that a subsequent amendment to the act that allows for a judicial waiver in some cases cures the constitutional defects or rendered the case moot. (Recall that in Zablocki itself the statute allowed a judicial waiver of the bar for past due child support payments as an impediment to marriage).  Instead, Judge Lemelle noted that "the failure of the State of Louisiana to proffer any evidence of why this regulation passes constitutional muster" and held it violated due process.

The bulk of Judge Lemelle's relatively brief opinion addresses the more procedural issues of summary judgment and injunction standards, perhaps because the constitutional issues were clear as Louisiana seemingly conceded. Nevertheless, this is an important opinion regarding the issue of differential treatment for non-native born citizens.

 

 

Torture Case Against Psychologists to Move Forward

Steven D. Schwinn, John Marshall Law School

Judge Quackenbush (E.D. Wash.) ruled earlier this week that the torture case against psychologists who helped design and implement the CIA's "enhanced interrogation techniques" can move forward. The jury trial is set to commence on September 5.

Judge Quckenbush rejected the defendant's argument that the case raises a political question; that the defendants enjoy absolute derivative sovereign immunity; that the Alien Tort Statute doesn't confer jurisdiction over the plaintiffs' claims; and that the defendants are not liable for violating international law. The court also rejected the defendants' motion to exclude the Senate Select Committee on Intelligence Report on the CIA's Detention and Interrogation Program.

At the same time, the court rejected the plaintiffs' motion for partial summary judgment on the ATS claim. The court said that "the issue of aiding and abetting liability under the ATS present complicated issues of both fact and law. Neither side has demonstrated judgment as a matter of law is appropriate."

The ruling keeps the case on track for trial on the merits.

 

Chicago Sues DOJ Over Sanctuary Cities Conditions

Steven D. Schwinn, John Marshall Law School

The City of Chicago filed suit this week against the U.S. Department of Justice over the Department's conditions on a federal law-enforcement grant designed to clamp down on sanctuary cities. The suit is just the latest escalation in the running disputes between "sanctuary" jurisdictions and the Trump Administration. We posted most recently here.

Chicago challenges DOJ-added conditions on the Byrne Justice Assistance Grant program that, it says, exceed DOJ authority, violate federalism principles, and interfere with the City's long-standing and effective Welcoming Policy, now codified as the Welcoming City Ordinance. DOJ announced some time ago that it would require grant recipients to comply with Section 1373 (which requires state and local authorities to communicate with federal authorities regarding the immigration status of individuals in their custody). More recently, DOJ announced that it would also require recipients to give the federal government notice of release of any individual at least 48 hours before the scheduled release (the notice condition) and to give federal immigration officials unlimited access to local police stations and law enforcement facilities to interrogate any suspected non-citizen held there (the access condition).

Chicago claims as an initial matter that it complies with Section 1373. That's because its Welcoming Policy prohibits officers from collecting immigration information from individuals in the first place, not from communicating information to federal officers. "[T]hus there is no information for the City to share (or restrict from sharing)." And "[m]oreover, if Chicago officials happen to come across immigration status information, they are not restricted from sharing it with federal officials."

As to the conditions themselves, Chicago argues that they exceed the grant requirements that Congress wrote into the Byrne JAG program; that only Congress, and not the Executive Branch, can add or change the statutory conditions on the program; and that the conditions violate federal conditioned-spending rules. As to the last, Chicago says that the conditions "are not germane to the Byrne JAG funds it has received for over a decade," that the notice and access conditions would require the City to violate the Fourth Amendment (by requiring that the City continue to hold individuals without probable cause for 48 hours, that the access condition, that the conditions are ambiguous, and that they are unconstitutionally coercive. The City also argues that each condition unconstitutionally commandeers it and its officers.

The case is in the Northern District of Illinois.

Third Circuit Rejects Next-Generation ACA Contraception-Requirement Challenge

Steven D. Schwinn, John Marshall Law School

A divided three-judge panel of the Third Circuit last week rejected a challenge to the contraception requirement under the Affordable Care Act by a self-described non-religious, anti-abortion nonprofit and three of its employees. The case represents the next generation of challenges to the requirement--after Hobby Lobby (a for-profit corporation with a religious objection) and Zubik v. Burwell (dealing with religious non-profits).

The plaintiff, Real Alternatives, is a non-profit, self-described non-religious, anti-abortion organization that objected to the contraception requirement on Equal Protection and statutory grounds. In particular, the organization and three of its employees argued that the requirement violates equal protection, because "if a religious organization may be exempted from the Contraceptive Mandate, then non-religious entities with an identical stance on contraceptives must be exempted as well." They also challenged the requirement under the Administrative Procedures Act. The three employees also argued that the requirement violated the Church Amendment and the RFRA.

The court rejected all of these challenges. As to equal protection, the court said, quite simply, that Real Alternatives, as a non-religious group, is not "similarly situated to a religious employer, such that the Exemption must be available to the group . . . ." In other words, Real Alternatives can't shoehorn itself into an exemption created for religious employers by way of the Equal Protection Clause, because, well, it's not religious. The court went on to say that "respecting church autonomy" by creating an exemption for churches (and not secular non-profits) is a "legitimate purpose--one that not only satisfies rational basis review but also is enshrined in the constitutional fabric of this country."

The court rejected the APA claim based on the same standard (under a different name): the requirement isn't "arbitrary and capricious" under the APA, for the same reasons that it satisfies rational basis review under equal protection.

As to the Church Amendment, the court said that the plaintiffs lacked standing, because they "purchase their health insurance from a company in the health insurance market, not from HHS or an HHS-administered health insurance program that falls under the purview of the Church Amendment."

Finally, as to RFRA, the court said the requirement didn't create a substantial burden on the employees' religious exercise, because merely being covered by insurance only gives the employees a choice to access a service, not a substantial burden on their religious exercise:

It is still up to the employee to decide what to do with those options, to seek out relevant providers, to submit claims for reimbursement for the service he or she selects, and so on. The act complained of--the filling out of a form that triggers eligibility for reimbursement for services the employee chooses to use (or not)--has not changed, and it in no way amounts to the sort of "substantial" burden consistently found contrary to RFRA. And the possibility that others might avail themselves of services that the employees find objectionable is no more burdensome than filling out the form . . . .

Judge Jordan dissented, arguing that the employees "adequately pled and provided sufficient evidence to demonstrate that the Contraceptive Mandate is a substantial burden on their free exercise of religion" under RFRA. (Judge Jordan joined the other parts of the majority opinion.)

Eighth Circuit Rejects Temporary Injunction Against State Robocall Statute

Steven D. Schwinn, John Marshall Law School

The Eighth Circuit last week rejected a plaintiff's request for a temporary injunction against a Minnesota statute restricting robocalls. The court ruled that the plaintiff wasn't likely to succeed on his First Amendment claim.

The statute bans robocalls, except "(1) messages from school districts to students, parents, or employers, (2) messages to subscribers with whom the caller has a current business or personal relationship, or (3) messages advising employees of work schedules." A later amendment also exempts "messages from a nonprofit tax-exempt charitable organization sent solely for the purpose of soliciting voluntary donations of clothing to benefit disabled United States military veterans and containing no request for monetary donations or other solicitations of any kind."

A political consultant challenged the law, arguing that, given the exceptions, it was an illegal content-based restriction on speech.

The Eighth Circuit disagreed, at least at this preliminary stage. The court first severed the military-veteran-donation exception from the rest of the statute. It then ruled that the other exceptions weren't content-based; instead, they were based on assumed implied consent of the target of the robocall:

[T]he permissions granted in the Minnesota statute do not reflect a content preference; they are based on an assumption of implied consent. The State does justify the statute in part based on an interest in protecting residential privacy against disruptive calls, but this interest is not grounded in a preference for certain content. Where a subscriber has impliedly consented to receipt of pre-recorded mesages, the caller may place a robocall about political campaigns, work schedules, or any other topic. Where there is no such implied consent, automated calls are banned entirely, regardless of their content. [The plaintiff] does not contend that the statute forbids him to communicate with any subscriber who has impliedly consented to receipt of his robocalls.

The court rejected the plaintiff's argument that Citizens United, Reed v. Town of Gilbert, or Matal v. Tam change this result. "[T]he statute does not prefer certain speech based on content, and does not disfavor certain ideas over others. The statute as a whole disfavors robocalls to strangers, but it allows them with consent. . . . The exceptions depend on the relationship between the caller and the subscriber, not on what the caller proposes to say."

Seventh Circuit Rebuffs Preliminary Challenge to Same-Day Voter Registration Law

Steven D. Schwinn, John Marshall Law School

The Seventh Circuit ruled last week that plaintiffs were unlikely to succeed on the merits of their challenge to Illinois's same-day voter-registration law. The ruling sends the case back to the district court for proceedings on the merits, although the ruling strongly suggests that the law is constitutional.

The case, brought by a Republican congressional candidate in the 2016 election and a county Republican party, alleged that Illinois's same-day registration law violated the Equal Protection Clause, because an opt-out provision would disadvantage voters in smaller counties, and thus comparatively boost Democratic voter turnout.

The law requires counties to provide same-day voter registration. But it includes an opt-out for smaller counties that don't have an electronic pollbook. Still, the law requires those counties to offer election-day registration at "the election authority's main office," as well as at "a polling place in each municipality where 20% or more of the county's residents reside if the election authority's main office is not located in that municipality."

The plaintiffs sought and received a preliminary injunction in the district court, but the Seventh Circuit stayed it before the 2016 election. Last week the Seventh Circuit vacated the injunction altogether.

The court said that the law didn't severely burden voters' constitutional right to vote, and so the district court improperly applied strict scrutiny. The court went on to say that the plaintiffs didn't demonstrate a likely success on the merits even under the less rigorous balancing test under Burdick v. Takushi. It concluded:

Even though [the Illinois law] does not force quite as many options on the smaller counties as it does on the 20 largest counties, it permits every county to adopt the default same-day rules, and it provides realistic same-day options even in the smaller places. This, couples with the lack of any data about which groups are disadvantaged and how, dooms the injunction.

Ninth Circuit Hands Partial Victory, but Ultimate Defeat, to Wiretap Subject

Steven D. Schwinn, John Marshall Law School

The Ninth Circuit ruled last week that Maricopa County officials violated federal law when they sought and obtained a wiretap, but that that the subject couldn't recover damages, because the officials acted in good faith and consistent with Arizona law and long-standing practices.

The ruling adds to a complicated body of law on federal preemption under the Omnibus Crime Control and Safe Streets Act of 1968 of state law authorizing wiretaps. The Ninth Circuit aligned with the approach of the First Circuit, and asked whether state procedural protections were "in substantial compliance with the federal law."

The case arose when County Attorney Montgomery, pursuant to state law, authorized a deputy to apply for a wiretap. The deputy obtained an order, and officials intercepted eight conversations between Manuela Villa and her daughter in 2011 and 2012. Officials, pursuant to long-standing state practice, then did not immediately deliver the recordings to the state court that authorized the wiretap.

Villa sued under Title III, arguing that officials violated Title III of the federal Omnibus Crime Control and Safe Streets Act of 1968, and that Title III preempted Arizona law that authorized the wiretap. In particular, Villa argued that County Attorney Montgomery, acting pursuant to state law, improperly delegated the authority to apply for a wiretap order to his deputy, in violation of Title III, which requires the "principal prosecuting attorney" to apply for a wiretap. Villa also argued that Deputy Brockel, acting pursuant to long-standing practice, failed to timely submit the recordings to the state court that authorized the wiretap, in violation of a Title III requirement that officials submit intercepted conversations to the authorizing court "[i]mmediately upon the expiration of the period of the order, or extensions thereof."

The Ninth Circuit first ruled that Villa lacked Article III standing to seek declaratory and injunctive relief. The court said that she could demonstrate no individualized future harm that would justify prospective relief. The court rejected Villa's taxpayer-standing claim out of hand, and held that she "does not allege that she is more likely than any other member of the public to have her future conversations illegally intercepted." Because Villa lacked standing for prospective relief, the court said that she also lacks standing to pursue prospective relief on behalf of a putative class.

In contrast, the court held that Villa did have standing to pursue individual damages for past interceptions, but, as below, couldn't actually recover.

The court held next that Title III preempted Arizona law, and that Arizona officials violated Article III. As to authorizing wiretaps, the court adopted the standard set by the First Circuit: "so long as the state wiretapping statute, considered as a whole and as interpreted by state courts, is in substantial compliance with, and is therefore equal to, Title III, state wiretaps are permissible." The court said that Arizona's statute, which authorizes a principal prosecuting attorney to delegate authority to apply for a wiretap to a deputy, didn't meet the standard: "substantial compliance with Title III requires that the principal prosecuting attorney indicate, as part of the application process, that he or she is personally familiar with all of the 'facts and circumstances' justifying his or her 'belief that an order should be issued,'" but that the Arizona statute permitted the "principal prosecuting attorney to state that he or she is [only] generally aware of the criminal investigation . . . ."

As to making the recordings available to the court that approved the wiretap, the court said that "long-standing practice" at the time of Villa's wiretap, in which "county officials submitted recordings of intercepted conversations for sealing only at the conclusion of an entire criminal investigation," was "not in substantial compliance" with federal law. But the court went on to say that a practice of submitting recordings within 10 days would be in compliance with the Act.

But even though the court concluded that officials violated the Act, it also ruled that Villa couldn't recover damages, because the officials acted in good faith, consistent with Arizona law or long-standing practices. (Good faith is a defense under a Title III cause of action.)

D.C. Circuit Keeps Obamacare Subsidy Case Alive

Steven D. Schwinn, John Marshall Law School

The D.C. Circuit earlier this week allowed 17 states and the District of Columbia to intervene in the suit challenging federal subsidies to insurance companies under the Affordable Care Act.

The development keeps the appeal alive, even as President Trump considers halting the payments. Such a move before this week's ruling would have mooted the appeal. But now that the states can defend the payments, and oppose Judge Collyer's ruling, it's not entirely clear whether President Trump can stop the payments, or whether the D.C. Circuit might stop him if he tried.

Recall that House Republicans sued the Obama Administration for making payments to insurance companies under the ACA, even though the line-item for those payments was zero funded. The payments were designed under the ACA to subsidize insurance companies for providing affordable plans on the exchanges. But Congress allocated no money to the line-item designated for the subsidies. The Obama Administration nevertheless made payments, drawing money from another, related account. (Without the payments, insurance rates would skyrocket on the exchanges, or insurers would have pulled out, or both.)

House Republicans sued, and Judge Rosemary Collyer (D.D.C.) ruled in their favor. But she stayed her injunction pending appeal. President Trump then inherited the appeal from the Obama Administration, allowing him to drop the appeal, leave Judge Collyer's decision in place, and stop the payments. (If President Trump dropped the appeal, Judge Collyer's stay pending appeal would have gone away.) He could even have cited Judge Collyer's ruling as a reason for stopping payments, perhaps diffusing some of the political blow-back from such a move.

But President Trump didn't drop the appeal. Moreover, he has continued the payments, even as he repeatedly suggests that he might stop. Bipartisan lawmakers have encouraged him to continue payments. A final decision is due from the White House this week.

Now, with this most recent order from the D.C. Circuit, allowing states to join the suit, the appeal will continue (with the states now defending the payments, even as the Trump Administration doesn't), and Judge Collyer's stay will remain in place, at least until the D.C. Circuit rules on the case. While the stay itself doesn't prevent the President from halting payments, the states' intervention might: Because the D.C. Circuit said that the states demonstrated sufficient harm if the subsidies stop (a condition of intervention), it's not entirely clear that President Trump can stop them. And even if he can, it's not clear that the D.C. Circuit might not prevent him from stopping them (in order not to harm the states).

In other words, the states' intervention might tie the President's hands by forcing him to continue payments, even though the parties to the lawsuit might otherwise agree to stop the payments and let the case go moot.

The uncertainty here comes, on the one hand, from the fact that the President can probably stop the payments whenever he wants, irrespective of the states' intervention or Judge Collyers' ruling and stay. But on the other hand if the states argue that the President has to make payments under the ACA (and not just that he can't be prevented from making payments), then the D.C. Circuit could stop the President from halting payments. This week's ruling suggests, but does not specifically say, that the D.C. Circuit is leaving this latter option open.

But it gets even weirder. The D.C. Circuit might not even rule on the merits. That's because the states will surely challenge the House's standing to bring the case in the first place. If the D.C. Circuit kicks the case on standing grounds, that'll undue Judge Collyer's decision against the payments.

For now, the ball's in the President's court.

AG Moves to Clamp Down on Sanctuary Cities Through Public Safety Partnership Program

Steven D. Schwinn, John Marshall Law School

Attorney General Jeff Sessions announced yesterday that DOJ will "tak[e] . . . into account" a city's "sanctuary" status in determining eligibility for the Department's new Public Safety Partnership program. AG Sessions accompanied the announcement with letters to Albequerque, Baltimore, San Bernadino, and Stockton--cities that had expressed an interest in participating in the PSP--asking for information related to their sanctuary policies.

The move adds a new program, the PSP, to some other Justice programs that are also unavailable to "sanctuary" jurisdictions--those jurisdictions that restrict their officers from communicating with federal authorities regarding the citizenship or immigration status of individuals in detention. In this way, the move is yet one more attempt by DOJ to encourage jurisdictions to drop their sanctuary policies.

AG Sessions initiated the PSP program in June. It provides training and technical assistance to local jurisdictions "to address violent crime in their communities." The Department initially selected twelve jurisdictions to participate in the program.

Earlier, the Department moved to clamp down on "sanctuary" jurisdictions by requiring them to drop their sanctuary policies as a condition of qualification for certain Justice grants. (In particular, DOJ said that jurisdictions that failed to comply with Section 1373 would not qualify for certain DOJ and DHS grants. Section 1373 says that "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.") DOJ adopted this policy as a way to implement President Trump's facially overbroad sanctuary cities executive order.

AG Sessions didn't go so far as to categorically deny sanctuary jurisdictions from the PSP program, however. Instead, he said that "[b]y taking simple, common-sense considerations into account, we are encouraging every jurisdiction in this country to cooperate with federal law enforcement." Specifically:

In determining which jurisdictions to select, the Department will ask interested jurisdictions the following questions:

1.    Does your jurisdiction have a statute, rule, regulation, policy, or practice that is designed to ensure that U.S. Department of Homeland Security (DHS) personnel have access to any correctional or detention facility in order to meet with an alien (or an individual believed to be an alien) and inquire as to his or her right to be or to remain in the United States?

2.    Does your jurisdiction have a statute, rule, regulation, policy, or practice that is designed to ensure that your correctional and detention facilities provide at least 48 hours advance notice, where possible, to DHS regarding the scheduled release date and time of an alien in the jurisdiction's custody when DHS requests such notice in order to take custody of the alien?

3.    Does your jurisdiction have a statute, rule, regulation, policy, or practice that is designed to ensure that your correctional and detention facilities will honor a written request from DHS to hold a foreign national for up to 48 hours beyond the scheduled release date, in order to permit DHS to take custody of the foreign national?

AG Sessions tied the PSP program to the no-sanctuary-policies condition by arguing that sanctuary cities threaten public safety: "By protecting criminals from immigration enforcement, cities and states with so-called "sanctuary" policies make all of us less safe." AG Sessions presumably drew the connection at least in part in order to satisfy the relatedness requirement for federal conditioned spending programs under South Dakota v. Dole. (Under South Dakota, a federal conditioned spending program must (1) be in the "general welfare," (2) state the condition clearly, (3) be related to the condition, and (4) not turn pressure to participate into compulsion to participate.)

Senate Blocks President Trump from Making Recess Appointments

The Hill reports that Senator Lisa Murkowski (R-Alaska) set nine pro forma sessions for the Senate over the August recess. The move means that the body will be in session every three days, even if only very briefly (just to gavel in, then immediately gavel out), so that it won't formally adjourn for the recess. Without an adjournment (more particularly, without formally going into a "recess"), President Trump can't use his recess appointment power.

Senate Republicans effectively used this tactic to frustrate President Obama's efforts to fill key executive slots. In 2014, the Supreme Court sided with the Senate on the practice in NLRB v. Noel Canning. The Court in that case held as a general matter that the Senate is in session when it says it is, and it's not when it says it's not. In particular, it held that a Senate schedule with a pro forma session every three days does not constitute a "recess" under the Recess Appointments Clause (unless the Senate says so). So when the Senate sets an every-three-day pro forma schedule over the August "recess," it similarly isn't in "recess" under the Recess Appointments Clause. And President Trump therefore can't make recess appointments.

Call for Papers: ACS Junior Scholars Public Law Workshop

The American Constitution Society for Law & Policy is accepting paper proposals for a workshop on public law on January 4, 2018, at the 2018 AALS Annual Meeting in San Diego.

A committee of ACS's Board of Academic Advisors will select 10 papers. Selected authors will present his or her paper and discuss it with two experienced scholars.

Papers can be in any field related to public law. Tenure-track and tenured faculty, or faculty with similar status, who have been full-time law teachers for 10 years or less as of December 31, 2017, are eligible. (Co-authored submissions are permissible, but each coauthor must qualify.)

Please send proposals to [email protected] on or before October 18, 2017.

Check out the call on the ACS web-site for more information.

President Trump's Constitutional Signing Statement on Russia-Sanctions Bill

Steven D. Schwinn, John Marshall Law School

President Trump signed the Russia-sanctions bill yesterday, but issued a sweeping constitutional signing statement calling out the "clearly unconstitutional provisions" in this "significantly flawed" legislation.

While the wide-ranging statement says that the President "favor[s] tough measures to punish and deter aggressive and destabilizing behavior by Iran, North Korea, and Russia," it also guts efforts to hold the President's feet to the fire and suggests that the President may enforce the measures (or not enforce them) nearly any way he wants. In short, given the breathtaking sweep of the statement, only time will tell whether and how the President executes the bill.

The last paragraph sums it up:

Finally, my Administration particularly expects the Congress to refrain from using this flawed bill to hinder our important work with European allies to resolve the conflict in Ukraine, and from using it to hinder our efforts to address any unintended consequences it may have for American businesses, our friends, or our allies.

The bill, H.R. 3364, adopts several measures to keep the President on a tight leash with regard to actual enforcement of Russian sanctions and related actions. President Trump identified those specifically. Here's a summary:

Sections 253 and 257: Recognition of Foreign Territorial Changes Effected by Force in Violation of International Law

President Trump argued that these provisions "displace the President's exclusive constitutional authority to recognize foreign governments, including their territorial bounds, in conflict with the Supreme Court's recent decision in Zivotofsky v. Kerry."

Section 253, titled "Statement of Policy," says that "[t]he United States, consistent with the principle of ex injuria jus non oritur, supports the policy known as the "Stimson Doctrine" and thus does not recognize territorial changes effected by force, including the illegal invasions and occupations of Abkhazia, South Ossetia, Crimea, Eastern Ukraine, and Transnistria."

Section 257 deals specifically with Ukraine and says that it's "the policy of the United States to support the Government of Ukraine in restoring its sovereign and territorial integrity; to condemn and oppose all of the destabilizing efforts by the Government of the Russian Federation in Ukraine in violation of its obligations and international commitments; to never recognize the illegal annexation of Crimea by the Government of the Russian Federation or the separation of any portion of Ukrainian territory through the use of military force; to deter the Government of the Russian Federation from further destabilizing and invading Ukraine and other independent countries," among other things.

Section 216: Congressional Oversight and Disapproval of Executive Actions with Regard to Sanctions

President Trump argues that "section 216 seeks to grant the Congress the ability to change the law outside the constitutionally required process" in conflict with INS v. Chadha. In particular, the provisions "purport to allow the Congress to extend the review period through procedures that do not satisfy the requirements for changing the law under Article I, section 7 of the Constitution." But the President "nevertheless expect[s] to honor the bill's extended waiting periods to ensure that the Congress will have a full opportunity to avail itself of the bill's review procedures."

Section 216 creates an oversight and checking process for Congress to review and disapprove of executive actions related to Russia sanctions. The section authorizes Congress to issue a "joint resolution of disapproval" that would halt disapproved presidential actions through a fast-tracked procedure. But ultimate disapproval would require presidential signature or a veto override, so satisfies constitutional requirements.

President Trump doesn't appear to complain about this ultimate disapproval procedure. Instead, he complains about the section's procedure to "extend the review period" in violation of Article I, section 7. In particular, section 216 temporarily halts presidential actions when they're under consideration by Congress, when the President is considering a joint resolution of disapproval, and when Congress is reconsidering a joint resolution of disapproval. According to the President, the temporary halt during these periods violates the presentment requirement, because the resolution would take temporary effect, even though the President hadn't signed it.

Sections 254 and 257: Coordinating Aid and Ukrainian Energy Security

President Trump objected that these provisions "purport to direct my subordinates in the executive branch to undertake certain diplomatic initiatives, in contravention of the President's exclusive constitutional authority to determine the time, scope, and objective of international negotiations."

Section 254 provides a "Countering Russian Influence Fund" and sets goals and standards for using that money, including specifying how the Secretary of State shall coordinate and carry out activities under the fund and how the Secretary can modify the goals of the fund. It also requires the Secretary to "establish a pilot program for Foreign Service officer positions focused on governance and anticorruption activities" in covered countries.

Section 257 requires the Secretary to "work with the Government of Ukraine to develop a plan to increase energy security in Ukraine, increase the amount of energy produced in Ukraine, and reduce Ukraine's reliance on energy imports from the Russia Federation," provides funding for those efforts, and sets standards and provides for congressional oversight.

Various Sections Restricting Entry to U.S.

Finally, the President objected to various provisions restricting visas to individuals who engage in certain, specified behavior, like supporting Iran's ballistic missile program, violating arms embargos, and the like. The President wrote that these provisions "would require me to deny certain individuals entry into the United States, without an exception for the President's responsibility to receive ambassadors under Article II, section 3 of the Constitution."

Federal Court Finds Alabama's Abortion Restrictions for Minors Unconstitutional

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

 In an extensive opinion in Reproductive Health Services v. Marshall, United States Magistrate Judge Susan Russ Walker (ruling as district court by consent), concluded that substantial portions of a 2014 Alabama statute regulating abortion access for minors contravened well-settled precedent. 

The doctrine regarding a minor's access to abortion requires that statutes requiring parental permission also provide the alternative of a "judicial bypass proceeding." As explained in Bellotti v. Baird, 443 U.S. 622 (1979) (“Bellotti II”) (plurality) and affirmed in Planned Parenthood Ass’n of Kansas City v. Ashcroft, 462 U.S. 476 (1983), at a judicial bypass proceeding, a minor must be allowed to show the court either that she is mature enough and well enough informed to make her abortion decision, in consultation with her physician, independently of her parents’ wishes; or that even if she is not able to make this decision independently, the desired abortion would be in her best interests.  The Court has further required that the judicial bypass proceeding “must insure the minor’s anonymity” and that it occur with the expediency necessary “to allow an effective opportunity to obtain the abortion.”  

At issue in Reproductive Health Services were provisions of the 2014 Alabama Act that mandated the participation of District Attorney and a Guardian Ad Litem (GAL) for the fetus, and provisions that allowed the participation of the minor's parent or guardian as a party. Additionally, the Act allowed disclosure of the minor's identity to anyone who needs to know and allowed the subpoena of witnesses.

Judge Walker easily decided that these provisions were unconstitutional under Bellotti II. Indeed, in her analysis she declared the wide disclosure was a "far cry" from established doctrine. She also observed that the 2014 Alabama Act was unique: in not one of the other of the 37 states that mandate parental notification and therefore require a judicial bypass proceeding,  does a state "mandates or permits participation by a parent or guardian, the DA, a GAL for the fetus, or witnesses (other than
those called by the minor) in bypass proceedings for the purpose of providing the court
with assistance in arriving at informed and proper decisions – or, indeed, for any other
purpose."

She therefore did not reach Reproductive Health Services' additional claim that these same provisions of the Alabama Act also interfered with "informational privacy," although the opinion spends many pages discussing why this additional claim was no longer justiciable given the conclusion that the Bellotti II claim was successful. The judge also found that the provisions of the 2014 Alabama Act were severable.

As Judge Walker concluded:

[T]he following provisions of the Act are unconstitutional in their entirety: Alabama Code § 26-21-4(i) (the participation of the DA as a party), § 26-21-4(j) (the participation of a GAL for the unborn child as a party), and § 26-21-4(l) (the participation of a parent, parents, or legal guardian of the minor petitioner as a party).  The references to the DA, GAL, and other parties will be severed from Alabama Code §§ 26-21-4(c), (e), (f), (k), and (n). The Act’s provisions permitting disclosure of a minor petitioner’s identity to “any witness who has a need to know the minor’s identity or any other person determined by the court who needs to know” are too broad to ensure a petitioner’s anonymity and, consequently, are unconstitutional; thus, that language will be severed from § 26-21-4(c). The provisions of Alabama Code § 26-21-4(f) that permit the bypass court, if it determines  that “additional evidence or testimony is necessary,” to delay the bypass proceeding sua sponte to issue “subpoenas … to bring before the court admissible evidence or testimony either in support of or against the petition,” does not reasonably safeguard the petitioner’s anonymity; it opens the door to the unrestricted notification of the minor’s relatives, teachers, friends, acquaintances, and other potential witnesses concerning her bypass proceeding.

The judge did not enter a preliminary injunction, finding that the declaratory judgment sufficient.

[image: Vermeer, Girl with a Pearl Earring, circa 1665]

 

D.C. Circuit Says Customers Have Standing to Sue Health Insurer for Data Breach

Steven D. Schwinn, John Marshall Law School

The D.C. Circuit ruled today that a group of CareFirst customers, proceeding as a class, had standing to sue the health insurer for its carelessness in protecting customers' personal information after cyber-attackers allegedly stole that information. The ruling is a victory for the plaintiffs, but it doesn't mean that the case will proceed to the merits: the lower court still has to determine whether it has diversity jurisdiction.

The problem was that the plaintiffs alleged imminent harms from the breach, and not actual harms. (As it turns out, some plaintiffs did allege actual harms, but the court didn't rule on those claims, because its ruling on imminent harms was sufficient to support standing.) The court applied the substantial-risk-of-harm test and ruled that the plaintiffs alleged a sufficiently imminent harm. Contrasting Clapper v. Amnesty International, the court said,

Here, by contrast, an unauthorized party has already accessed personally identifying data on CareFirst's servers, and it is much less speculative--at the very least, it is plausible--to infer that this party has both the intent and the ability to use that data for ill. As the Seventh Circuit asked, in another data breach case where the court found standing, "Why else would hackers break into a . . . database and steal consumers' private information? Presumably, the purpose of the hack is, sooner or later, to make fraudulent charges or assume those consumers' identities." . . . No long sequence of uncertain contingencies involving multiple independent actors has to occur before the plaintiffs in this case will suffer any harm; a substantial risk of harm exists already, simply by virtue of the hack and the nature of the data that the plaintiffs allege was taken. That risk is much more substantial than the risk presented to the Clapper Court, and satisfies the requirement of an injury in fact.

As to traceability, the court said that this doesn't require the plaintiffs to sue only "the most immediate cause, or even a proximate cause, of the plaintiffs' injuries [in this case, the robbers]; it requires only that those injuries be 'fairly traceable' to the defendant.'" The plaintiffs satisfied this test.

As to redressability, the court said that the plaintiffs have incurred costs to mitigate any damage, and that these "self-imposed risk-mitigation costs" "can satisfy the redressability requirement, when combined with a risk of future harm that is substantial enough to qualify as an injury in fact." (But the court noted that these kinds of costs are insufficient to satisfy the injury-in-fact requirement.)