Constitutional Law Prof Blog

District Judge Partially Enjoins President's Transgender Military Ban

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

 In an Order and Opinion in Doe v. Trump, United States District Judge for the District of Columbia Colleen Kollar-Kotelly partially enjoined the president's actions to limits the service of transgender persons in the United States military. Judge Kollar-Kelly denied the motion for preliminary injunction regarding the Sex Reassignment Directive, but granted the motion for preliminary injunction regarding the Accession and Retention Directives.

Recall that this lawsuit, filed by lawyers for the National Center for Lesbian Rights (NCLR) and GLBTQ Legal Advocates and Defenders (GLAD) is one of several complaints challenging the president's military action, and included claims for a violation of equal protection, due process, and a nonconstitutional argument of equitable estoppel.

Judge Kollar-Kotelly's 76 page opinion, which begins with a recitation of the President's "statement via Twitter" on July 26, 2017, announcing that “the United States Government will not accept or allow transgender individuals to serve in any capacity in the U.S. Military.” This was followed almost a month later by the President's Memorandum for the Secretary of Defense and Secretary of Homeland Security through the Office of the Press Secretary directing the halt of accession of transgender individuals into the military and the halt of all resources "to fund sex-reassignment surgical procedures for military personnel, except to the extent necessary to protect the health of an individual who has already begun a course of treatment to reassign his or her sex." The President's Twitter statement and the subsequent Presidential memorandum are the centerpiece of the Government's argument that the plaintiffs lack standing and that their claims are not ripe under Article III.

Judge Kollar-Kotelly wrote:

Defendants have moved to dismiss this case, principally on the basis that the Court lacks jurisdiction. Although highly technical, these jurisdictional arguments reduce to a few simple points: the Presidential Memorandum has not effected a definitive change in military policy; rather, that policy is still subject to review; until that review is complete, transgender service members are protected; and any prospective injuries are too speculative to require judicial intervention.

These arguments, while perhaps compelling in the abstract, wither away under scrutiny.

Judge Kollar-Kotelly's opinion then spends the majority of the opinion discussing the standing and ripeness issues. As to the Surgery challenge, the opinion concludes that "none of the Plaintiffs have demonstrated an injury in fact with respect to the Sex Reassignment Surgery Directive," because none of the "Plaintiffs have demonstrated that they are substantially likely to be impacted by the Sex Reassignment Surgery Directive"  In fact, the plaintiffs' medical procedures would be performed.  However, there was standing on the Accession and Retention Directives because although an Interim Guidance possibly protects some transgender service members and allows for waivers,

The President controls the United States military. The directives of the Presidential Memorandum, to the extent they are definitive, are the operative policy toward military service by transgender service members.

Moreover, "the injury in fact element of standing in an equal protection case is the denial of equal treatment resulting from the imposition of the barrier.”

Compared to the extensive analysis of the Article III issues, Judge Kollar-Ketelly's analysis of the equal protection claim based on the Fifth Amendment is much more succinct. The opinion first determines the level of scrutiny, deciding on intermediate scrutiny for two reasons.

First, "on the current record, transgender individuals—who are alone targeted for exclusion by the Accession and Retention Directives—appear to satisfy the criteria of at least a quasi-suspect classification," considering  whether they have "experienced a ‘history of purposeful unequal treatment’ or been subjected to unique disabilities on the basis of stereotyped characteristics not truly indicative of their abilities," and whether they have been as a group “relegated to such a position of political powerlessness as to command extraordinary protection from the majoritarian political process," and whether the group “exhibit[s] obvious, immutable, or distinguishing characteristics that define them as a discrete group.” Judge Kollar-Ketelly found that transgendered people satisfied these criteria, noting that although there was no binding precedent on this issue, other courts had reached similar conclusions and citing Evancho v. Pine-Richland Sch. Dist.

Second, Judge Kollar-Ketelly was "also persuaded that the Accession and Retention Directives are a form of discrimination on the basis of gender, which is itself subject to intermediate scrutiny. It is well-established that gender-based discrimination includes discrimination based on non- conformity with gender stereotypes."

In the application of intermediate scrutiny, Judge Kollar-Ketelly recited the rule of United States v. Virginia (VMI) (1996), and held that the Accession and Retention Directives relied on overbroad stereotypes and were not substantially related to the Government's stated interests.  The opinion then considered the question of deference in the military context:

Nonetheless, given the deference owed to military personnel decisions, the Court has not based its conclusion solely on the speculative and overbroad nature of the President’s reasons. A second point is also crucial. As far as the Court is aware at this preliminary stage, all of the reasons proffered by the President for excluding transgender individuals from the military in this case were not merely unsupported, but were actually contradicted by the studies, conclusions and judgment of the military itself. As described above, the effect of transgender individuals serving in the military had been studied by the military immediately prior to the issuance of the Presidential Memorandum. In connection with the working group chaired by the Under Secretary of Defense for Personnel and Readiness, the RAND National Defense Research Institute conducted a study and issued a report largely debunking any potential concerns about unit cohesion, military readiness, deployability or health care costs related to transgender military service. The Department of Defense Working Group, made up of senior uniformed officers and senior civilian officers from each military department, unanimously concluded that there were no barriers that should prevent transgender individuals from serving in the military, rejecting the very concerns supposedly underlying the Accession and Retention Directives. In fact, the Working Group concluded that prohibiting transgender service members would undermine military effectiveness and readiness. Next, the Army, Air Force and Navy each concluded that transgender individuals should be allowed to serve. Finally, the Secretary of Defense concluded that the needs of the military were best served by allowing transgender individuals to openly serve. In short, the military concerns purportedly underlying the President’s decision had been studied and rejected by the military itself. This highly unusual situation is further evidence that the reasons offered for the Accession and Retention Directives were not substantially related to the military interests the Presidential Memorandum cited.

The opinion also considered "the circumstances surrounding the announcement of the President’s policy":

the President abruptly announced, via Twitter—without any of the formality or deliberative processes that generally accompany the development and announcement of major policy changes that will gravely affect the lives of many Americans—that all transgender individuals would be precluded from participating in the military in any capacity. These circumstances provide additional support for Plaintiffs’ claim that the decision to exclude transgender individuals was not driven by genuine concerns regarding military efficacy.

Finding a likelihood of success on the merits of the equal protection claim, the opinion quickly dispatched the other considerations used in evaluating the issuance of a preliminary injunction, finding them met.

Expect the government to appeal as well as opinions in the other pending cases.

 

Court Deals Blows to DOD's Enhanced Vetting for Noncitizen Soldiers Seeking Citizenship

Steven D. Schwinn, John Marshall Law School

Judge Ellen Segal Huvelle (D.D.C.) ruled this week that the Defense Department's enhanced vetting policies for noncitizen-soldiers who seek to apply for expedited citizenship under federal law likely violates the Administrative Procedure Act. The court also provisionally certified a class in the case, and certified a class in a related case challenging a different aspect of the same problem.

The rulings are significant, even if preliminary, wins for the two groups of noncitizens soldiers in their efforts to apply for citizenship by virtue of their military service. The rulings are also a significant setback for the DOD's efforts to ramp-up security screenings for noncitizen soldiers before they can apply for citizenship, and yet another setback for the administration in its immigration policies.

One ruling, Kirwa v. DOD, says that the DOD's failure to issue a certain form, the N-426, to noncitizen reservists who applied for service before October 13, 2017, and who were (and are) awaiting assignment to basic training likely violates the APA. (The N-426 is a form that simply certifies a noncitizen-soldier's military service. It's a requirement for a noncitzien reservists and active-duty soldiers to apply for an expedited path to citizenship under federal law.) That same ruling also provisionally certifies a class; a related ruling, Nio v. DOD, later this week certified a class in a different case (more below).

Kirwa arose when DOD changed course in the spring of 2017 and began to decline requests for a certain form, the N-426, which simply certifies a noncitizen soldier's military service as a prerequisite to his or her citizenship application, to noncitizen reservists who were awaiting assignment to basic training. (DOD previously issued the N-426 to noncitizen reservists during this period, although an earlier policy change, in September 2016, led to some earlier delays in issuing the form.) Plaintiffs sued to get the DOD to issue the forms, but DOD then issued new policy guidance on October 13, 2017. The new guidance imposed additional security-vetting requirements before the DOD would issue the N-426 to noncitizen-reservists, further delaying the plaintiffs' ability to apply for citizenship (and subjecting them to deportation proceedings in the meantime). The plaintiffs amended their complaint and motion for class certification based on the new guidance.

The court ruled that the plaintiffs were likely to succeed on the merits of their Administrative Procedure Act claim, because the "DOD offered no reasoned explanation for this change, thereby suggesting that DOD's decision was an arbitrary and capricious one." (The court ruled that it could hear the case under the APA, despite the government's claim that the APA didn't reach this kind of decisionmaking and despite the government's claim that the case touched on national security.) Moreover, the court said that the October 13 guidance changed the ground-rules for the plaintiffs, who enlisted based on very different policies and processes for noncitizen-reservists to apply for expedited citizenship. The court granted the plaintiffs' motion for a preliminary injunction and provisionally certified a class (noting that it included about 2,000 individuals).

In Nio, the court certified a class of noncitizen-soldiers who had a completed N-426 form and applied for expedited citizenship with DHS, but were held up because of DOD's enhanced vetting processes. (The court noted that there are about 400 to 500 members of the class.)

Court Denies Preliminary Injunction in Insurance-Subsidy, Obamacare Case

Steven D. Schwinn, John Marshall Law School

Judge Vince Chhabria (N.D. Cal.) today denied the states' motion for a preliminary injunction in the their case against the Trump administration for halting cost-sharing reduction ("CSR") payments to insurance companies on the Obamacare exchanges. We posted on the complaint here.

Judge Chhabria ruled that the plaintiff-states did not demonstrate a likelihood of success on the merits, because Congress didn't appropriate funds for the CSRs, even though the ACA requires that the government pay them:

In sum, the [ACA] requires the federal government to pay insurance companies to cover the cost-sharing reductions. The federal government is failing to meet that obligation. If there was no permanent appropriation in the Act, Congress is to blame for the failure, because it has not been making annual appropriations for CSR payments. The Administration cannot fix Congress's error, because the Constitution prevents the Administration from making payments on its own. In contrast, if the Act created a permanent appropriation, the Administration is legally at fault for the federal government's failure to meet its obligation under the Act to make CSR payments. On the merits, it's a close and complicated question, even if the Administration may seem to have the better argument at this stage.

As to the other preliminary injunction factors, Judge Chhabria noted that most of the states in the lawsuit have taken measures with the insurance companies to offset the impact of the administration's decision not to pay CSRs to the consumers. States did this by encouraging insurance companies to increase premiums in certain plans so that consumers would qualify for higher premium tax credits (which, unlike the CSRs, have a permanent appropriation under the ACA). For most consumers, the court said, the higher premium tax credits would well offset any harm based on the administration's decision not to pay CSRs.

The ruling means that the court won't require the administration to make CSR payments, at least for now.

No Surprise: SCOTUS Vacates Trump v. Hawai'i Travel Ban Certiorari

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

In an Order today the Court brought the litigation in Hawai'i v. Trump on Muslim Ban/Travel ban 2.0 to a close. The Order provides:

We granted certiorari in this case to resolve a challenge to the temporary suspension of entry of aliens and refugees under Section 2(c) and Section 6 of Executive Order No. 13,780. Because those provisions of the Order have “expired by [their] own terms,” the appeal no longer presents a “live case or controversy.” Burke v. Barnes, 479 U. S. 361, 363 (1987). Following our established practice in such cases, the judgment is therefore vacated, and the case is remanded to the United States Court of Appeals for the Ninth Circuit with instructions to dismiss as moot the challenge to Executive Order No. 13,780. United States v. Munsingwear, Inc., 340 U. S. 36, 39 (1950). We express no view on the merits.

Justice Sotomayor dissents from the order vacating the judgment below and would dismiss the writ of certiorari as improvidently granted.

This Order replicates the Court's previous dismissal in IRAP v. Trump on October 10.

This does not end litigation on the issues.

Recall that so-called Muslim Ban/Travel Ban 2.0 has been replaced by so-called Muslim Ban/Travel Ban 3.0, Presidential Proclamation 9645, entitled “Enhancing Vetting Capabilities and Processes for Detecting Attempted Entry Into the United States by Terrorists or Other Public-Safety Threats”of September 24, 2017.  Like the previous iterations, this has been enjoined by federal judges in Hawai'i (Hawai'i v. Trump) and in Maryland (IRAP v. Trump).

 

Fourth Circuit Finds 40 Foot Highway Cross Violates Establishment Clause

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

 The state of Maryland owns and maintains a 40 foot "Latin Cross" situated on a traffic island taking up one-third of an acre at the busy intersection of Maryland Route 450 and U.S. Route 1 in Bladensburg, Md.  Reversing the district judge, the Fourth Circuit concluded that the government cross violated the First Amendment's Establishment Clause in a divided opinion  in American Humanist Association v. Maryland-Capital Park and Planning Commission. 

The panel was unanimous in its conclusion that the challengers, both the association and individuals, had standing: The individuals, for example, alleged "specific unwelcome direct contact with the Cross; that is, they have each regularly encountered the Cross as residents while driving in the area, the Commission caused such injury by displaying the Cross, and the relief sought -- enjoining the display of the Cross -- would redress their injury."

The judges disagreed, however, regarding the application of the Establishment Clause.  In the well-reasoned majority opinion by Judge Thacker, the passive monument rule of the plurality in Van Orden v. Perry (2005) is not conclusive, especially given Justice Breyer's concurrence which stressed factors for determining whether or not the monument should be deemed passive and further stressed that the well-established Lemon test from Lemon v. Kurtzman (1971) remained a "useful guidepost."  The majority thus analyzed the case "pursuant to the three-prong test in Lemon with due consideration given to the factors outlined in Van Orden."

The court first found that there was a legitimate secular purpose to the cross, considering that it was erected to local soldiers who died in World War I. As to the effect of advancing or inhibiting religion prong, the court engaged in a detailed analysis of the symbol of the cross, and found it specifically Christian.  It rejected the argument that in Europe, the Latin Cross might be a neutral symbol for the war dead of World War I.  Further, the fact that this cross had been in place for 90 years was not determinative and the secular symbols accompanying the cross were also not sufficient:

the sectarian elements easily overwhelm the secular ones. The Cross is by far the most prominent monument in the area, conspicuously displayed at a busy intersection, standing four stories tall, and overshadowing the other monuments, the tallest of which is only ten feet tall and located approximately 200 feet from the Cross. The other monuments composing the Veterans Memorial Park are anywhere from 200 feet away to a half-mile away. The immense size and prominence of the Cross necessarily “evokes a message of aggrandizement and universalization of religion, and not the message of individual memorialization and remembrance that is presented by a field of gravestones.”

 Thus, a "reasonable observer" - - - most likely viewing the 40 foot cross from the highway - - - would fairly understand the Cross to have the primary effect of endorsing religion. This is even true, the court reasoned, if the reasonable observer knew the history of the cross as memoralizing the war dead, because then this reasonable observer would also know that the original private organizers of the cross monument pledged "devotion to faith in God, and that same observer knows that Christian-only religious activities have taken place at the Cross.

On the third "excessive entanglement" prong of Lemon, the court found that additionally

displaying the Cross, particularly given its size, history, and context, amounts to excessive entanglement because the Commission is displaying the hallmark symbol of Christianity in a manner that dominates its surroundings and not only overwhelms all other monuments at the park, but also excludes all other religious tenets. The display aggrandizes the Latin cross in a manner that says to any reasonable observer that the Commission either places Christianity above other faiths, views being American and Christian as one in the same, or both.

Dissenting, Chief Judge Gregory argued that

the majority misapplies Lemon and Van Orden to the extent that it subordinates the Memorial’s secular history and elements while focusing on the obvious religious nature of Latin crosses themselves; constructs a reasonable observer who ignores certain elements of the Memorial and reaches unreasonable conclusions; and confuses maintenance of a highway median and monument in a state park with excessive religious entanglement.

For the dissenting judge, the large size of the cross is only one factor that a reasonable observer would notice and the majority's opinion would lead to a rule that all "large crosses are unconstitutional despite any amount of secular history and context" if the the crosses were on government land.

Given the continuing and renewed debates about the entwinement of Christianity and government, this may be a plausible candidate for certiorari to the United States Supreme Court.  

[image from the opinion's appendix].

The Take Care Case Against Trump

Check out Prof. Abbe Gluck's piece at Vox setting out the case that President Trump is violating the Take Care Clause by purposefully undermining Obamacare (which, after all, is still federal law).

We posted on the states' case against President Trump for dropping the cost-sharing reduction payments to insurance companies. The complaint cites the myriad ways that the President is actively undermining the ACA (and thus violating the Take Care Clause), but only seeks relief with regard to the CSRs. Gluck's piece takes it a step farther and says why the President's several efforts violate the Take Care Clause.

Second Federal District Judge Issues Preliminary Injunction on Muslim Ban 3.0

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

 A few hours after Hawai'i District Judge Derrick Watson granted a nationwide preliminary injunction in Hawai'i v. Trump in an extensive order based largely on statutory grounds, Maryland District Judge Theodore Chuang has also issued a nationwide injunction against the so-called "Muslim Ban 3.0" in an almost 100 page opinion  in International Refugee Assistance Project (IRAP) v. Trump. 

Recall that Judge Chuang had issued an injunction against the enforcement of Muslim Ban 2.0, which the en banc Fourth Circuit had affirmed 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. The United States Supreme Court, having granted certiorari to the case (as well as Hawai'i v. Trump), had recently vacated the Fourth Circuit opinion given the Government's suspension of version 2.0 of the "Muslim Ban" (President's March 6, 2017 Executive Order "Protecting The Nation From Foreign Terrorist Entry Into The United States" (now numbered EO 13,780), with Presidential Proclamation 9645, entitled “Enhancing Vetting Capabilities and Processes for Detecting Attempted Entry Into the United States by Terrorists or Other Public-Safety Threats”of September 24, 2017, known colloquially as "Muslim Ban" or "Travel Ban" or EO "3.0."

In short, although there are some differences in this third iteration, including the addition of nationals from the countries of Chad, North Korea, and Venezuela, as well as Iran, Libya, Somalia, Syria, Yemen, Judge Chuang concluded that "Muslim Ban 3.0" suffered from the same constitutional infirmities as the previous bans.

Judge Chuang found that the Plaintiffs had standing and that parts on the Proclamation conflicted with the Immigration and Nationality Act, similar to the conclusions of Judge Watson in Hawai'i v. Trump. However, because the statutory claims were not sufficient to enjoin the challenge to nonimmigrantion visas, Judge Chuang proceeded to the constitutional claims.

On the Establishment Clause challenge, Judge Chuang ultimately concluded that the Plaintiffs had a likelihood of prevailing on the merits.  The central question, as it had been previously, is the extent to which the President's motivation is a "Muslim Ban" and thus comes within the First Amendment's prohibition as most exemplified by McCreary County. v. ACLU of Kentucky (2005) and the first prong of the well-established test from Lemon v. Kurtzman (1971), essentially requiring a government act to have a secular purpose.  Given that courts had previously held that the two previous iterations of the travel ban were motivated by anti-Muslim sentiment, Judge Chuang considered whether this new Proclamation was still tainted by that motivation or if it had been replaced by nuetral considerations such as national security.  The "taint" does not persist forever, but neither should courts be "absentminded" as to the context.

Judge Chuang wrote:

Thus, while Defendants assert that the Proclamation’s travel ban was arrived at through the routine operations of the government bureaucracy, the public was witness to a different genealogy, one in which the President—speaking “straight to the American people,” — announced his intention to go back to and get even tougher than in EO-1 and EO-2. Notably, the June 5 tweet calling for a “much tougher version” reveals that even before President Trump had received any reports on the DHS Review that ostensibly identified the need for a travel ban, the first of which he received over a month later on July 9, 2017, the President had already decided that the travel ban would continue. His September 15, 2017 tweet calling for a “far larger, tougher” travel ban, issued the same day that that the final report was received, reinforced this position. . . . [The President's] statements

Here, those statements do not offer “persuasive” rejection of the President’s prior calls for a Muslim ban, or his stated intention to use a ban on certain “dangerous territory” to effectuate a Muslim ban, nor do they show that the stated intention to impose a Muslim ban has been “repealed or otherwise repudiated.”  Rather, they cast the Proclamation as the inextricable re-animation of the twice-enjoined Muslim ban, and, in echoes of McCreary, convey the message that the third iteration of the ban—no longer temporary—will be the “enhanced expression” of the earlier ones.

[citations omitted].  Thus, Judge Chuang concluded that

where the Proclamation itself is not sufficiently independent of EO-2 to signal a purposeful, persuasive change in the primary purpose of the travel ban, and there were no other public signs that “as persuasively” as the original violation established a different primary purpose for the travel ban, it cannot find that a “reasonable observer” would understand that the primary purpose of the Proclamation’s travel ban is no longer the desire to impose a Muslim ban.

Having concluded that the Plaintiffs would likely prevail on the merits of the First Amendment claim, Judge Chuang did not discuss the Equal Protection challenge.

Judge Chuang issued an Order enjoining enforcement of section 2 of the Proclamation.

Like the injunction issued in Hawai'i v. Trump, this is sure to be appealed by the Trump Administration.

 

Federal District Judge Issues Preliminary Injunction on "Muslim Ban 3.0"

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

In the third iteration of the "Muslim Ban" or "Travel Ban" before the courts, federal District Judge Derrick Watson has issued an Order  granting a nationwide preliminary injunction in Hawai'i v. Trump.

Recall that Judge Watson previously issued a preliminary injunction in Hawai'i v. Trump regarding a previous incarnation of the travel ban and that the United States Supreme Court has not yet disposed of the case to which it granted certiorari although it did vacate a similar Fourth Circuit case.

In today's Order and Opinion, Judge Watson began pointedly:

Professional athletes mirror the federal government in this respect: they operate within a set of rules, and when one among them forsakes those rules in favor of his own, problems ensue. And so it goes with EO-3.

The constitutional issues before the court involved standing of the States and of the individual plaintiffs. Given that the judge had previously held there was standing and there had been no substantial changes, Judge Watson unsurprisingly held there was standing. Judge Watson also held the claims were ripe and justiciable, rejecting the government's "troubling" contentions that the statutory challenges were not reviewable.

Judge Watson rests the likelihood to succeed on the merits conclusion on the statutory claims and did not discuss any constitutional issues.  However, embedded in the statutory analysis is the question of Executive powers.  For Judge Watson, EO-3 "improperly uses nationality as a proxy for risk" and its findings are "inconsistent with and do not fit the restrictions that the order actually imposes."

Judge Watson repeats the Plaintiffs' assertion that the President has never repudiated his early calls for a Muslim ban and that the "record has only gotten worse." In support, the Order's footnote 9 reads:

For example, on June 5, 2017, “the President endorsed the ‘original Travel Ban’ in a series of tweets in which he complained about how the Justice Department had submitted a ‘watered down, politically correct version’” to the Supreme Court. TAC ¶ 86 (quoting Donald J. Trump (@realDonaldTrump), Twitter (June 5, 2017, 3:29 AM EDT) https://goo.gl/dPiDBu). He further tweeted: “People, the lawyers and the courts can call it whatever they want, but I am calling it what we need and what it is, a TRAVEL BAN!” TAC ¶ 86 (quoting Donald J. Trump (@realDonaldTrump), Twitter (June 5, 2017, 3:25 AM EDT), https://goo.gl/9fsD9K). He later added: “That’s right, we need a TRAVEL BAN for certain DANGEROUS countries, not some politically correct term that won’t help us protect our people!” TAC ¶ 86 (quoting Donald J. Trump (@realDonaldTrump), Twitter (June 5, 2017, 6:20 PM EDT), https://goo.gl/VGaJ7z). Plaintiffs also point to “remarks made on the day that EO-3 was released, [in which] the President stated: ‘The travel ban: The tougher, the better.’” TAC ¶ 94 (quoting The White House, Office of the Press Sec’y, Press Gaggle by President Trump, Morristown Municipal Airport, 9/24/2017 (Sept. 24, 2017), https://goo.gl/R8DnJq).

Judge Watson enjoined the federal defendants from

"enforcing or implementing Sections 2(a), (b), (c), (e), (g), and (h) of the Proclamation issued on September 24, 2017, entitled “Enhancing Vetting Capabilities and Processes for Detecting Attempted Entry into the United States by Terrorists or Other Public-Safety Threats” across the Nation. Enforcement of these provisions in all places, including the United States, at all United States borders and ports of entry, and in the issuance of visas is prohibited, pending further orders from this Court."

The Judge also preemptively denied a stay in the case of emergency appeal - - - which will surely follow.

 

 

Daily Read: SCOTUS and Mistakes of Fact

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

In a report for Pro Publica, Ryan Gabrielson discusses the underlying truth claims in some recent United States Supreme Court opinions and finds them inaccurate.

Perhaps most worrisome is from Chief Justice Roberts's opinion for the Court in the 2013 closely divided case declaring a provision of the Voting Rights Act unconstitutional, Shelby County v. Holder. Gabrielson writes that Chief Justice Roberts

called the “extraordinary and unprecedented” requirements of the Voting Rights Act outdated and unfair.

To illustrate his point, Roberts constructed a chart and published it in the body of the opinion. It compared voter registration rates for whites and blacks from 1965 and 2004 in the six southern states subject to special oversight. Roberts assembled his chart from data in congressional reports produced when lawmakers last renewed the act. The data displayed clearly that registration gaps between blacks and whites had shrunk dramatically.

But some of the numbers Roberts included in his chart were wrong.

Additionally, Gabrielson notes that Roberts's chart "did not use generally accepted definitions of race."

Roberts, whose recent dismissal of statistical reality in the oral argument in another voting case, Gill v. Whitford, attracted attention,  is not the only Justice to be highlighted in the Pro Publica article and not only for nonlegal matters.  Justice Kennedy, writing in another closely divided case, United States v. Windsor, also in 2013, inaccurately discussed the number of states that prohibited marriage between cousins. Kennedy wrote:

 “most States permit first cousins to marry, but a handful — such as Iowa and Washington ... prohibit the practice.” Kennedy listed only the two states’ marriage statutes as sources.

The primary elements of his statement are false. Half the states prohibit marriages between first cousins, Iowa and Washington among them.

Whether or not such inaccuracies are central to judicial reasoning is certainly debatable.  Whether or such inaccuracies sully judicial reputation is less so.

 

States Sue Trump Administration Over Obamacare Cost-Sharing Reimbursements

Steven D. Schwinn, John Marshall Law School

As soon as President Trump announced last week that his administration would halt cost-sharing reimbursement payments to insurers on the Obamacare exchanges, 18 states and the District of Columbia sued, arguing that the move violates federal law and the Take Care Clause of the Constitution.

The cost-sharing reimbursements ("CSRs") are designed to reimburse insurers for extending insurance to low- and moderate-income individuals and families on the Obamacare exchanges. Recall that while the ACA requires the government to pay CSRs, Congress failed to appropriate funds for them under President Obama. The President nevertheless paid them, and the House of Representatives sued. Judge Rosemary Collyer (D.D.C.) ruled in favor of the House and stopped the payments. The D.C. Circuit, however, held the case in abeyance as the Trump administration decided whether to stop the payments. We posted most recently here.

The Trump administration continued the CSRs--until last week.

Eighteen states and the District of Columbia immediately brought suit in the Northern District of California. The complaint points out that 42 U.S.C. Sec. 18071(c)(3)(A) says that the Secretary "shall make periodic and timely payments [CSRs]" to the insurers and argues that the President's decision not to make payments violates the Administrative Procedure Act and the Take Care Clause. The complaint also catalogues the familiar and many ways that the Trump administration is actively undermining the ACA, and argues that these, too, violate the Take Care Clause.

The lawsuit pits the fact that the ACA requires CSRs against the fact that Congress declined to fund them, against the backdrop of the well-integrated and complementary provisions in the ACA, which could all fall apart without the CSRs. When Judge Collyer address these issues, she wrote,

Nothing in Section 1402 prescribes a "periodic and timely payment[]" process, however. Nor does Section 1402 condition the insurers' obligation to reduce cost sharing on the receipt of offsetting payments.

***

Such an appropriation [for CSRs] cannot be inferred [from the integration between refundable tax credits, which were funded by Congress, and CSRs, which were not], no matter how programmatically aligned the Secretaries may view [those sections]. . . .

Payment out [CSRs] without an appropriation thus violates the Constitution. Congress authorized reduced cost sharing but did not appropriate monies for it, in the FY 2014 budget or since. Congress is the only source for such an appropriation, and no public money can be spent without one.

Ninth Circuit Upholds Zoning Denial for Gun Store

Steven D. Schwinn, John Marshall Law School

The en banc Ninth Circuit ruled this week that a denial of a zoning permit to open a gun store did not violate the Second Amendment rights of local residents (to buy guns) or the gun shop (to sell them).

The case, Teixeira v. County of Alameda, arose when the unincorporated county denied a conditional use permit to Teixeira to open a gun shop under a county ordinance. The ordinance say that firearms retailers can't operate within 500 feet of residential districts, schools and day-cares, other firearm retailers, and liquor stores. After some back-and-forth, the Zoning Board found that Teixeira's proposed shop was within 500 feet of two homes, and so denied the permit.

Teixeira sued, arguing that the ordinance requiring a conditional use permit violated his own Second Amendment right (to sell) and the Second Amendment rights of county residents (to buy). The en banc court rejected these claims.

The court ruled first that the plaintiffs failed to plausibly allege that the ordinance impeded any county resident from buying a gun:

Alameda County residents may freely purchase firearms within the County. As of December 2011, there were ten gun stores in Alameda County. Several of those stores are in the non-contiguous, unincorporated portions of the County. In fact, Alameda County residents can purchase guns approximately 600 feet away from the proposed site of Teixeira's planned store, at a Big 5 Sporting Goods Store.

The court therefore held that the ordinance did not violate the Second Amendment rights of county residents to buy.

As to the gun-store owners' right to sell, the court surveyed the text and history of the Second Amendment and concluded that it did not protect the right to sell firearms. "[T]he right of gun users to acquire firearms legally is not coextensive with the right of a particular proprietor to sell them." (The court rejected an analogy to the First Amendment for booksellers, writing that "bookstores and similar retailers who sell and distribute various media, unlike gun sellers, are themselves engaged in conduct directly protected by the First Amendment.") Because the ordinance didn't restrict Second Amendment rights, the court said it was "necessarily allowed by the Amendment."

Ninth Circuit Denies En Banc Review for Berkeley Ordinance Requiring Cell Phone Retail Disclosures

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

In an Order of denial of en banc review in CTIA- The Wireless Ass'n v. City of Berkeley, a concurring opinion by the original majority judges and a dissenting opinion demonstrate the continuing controversies surrounding the constitutionality of compelled commercial speech.

Recall that the original panel opinion in April upheld the constitutionality of Berkeley's mandated notice to purchasers of cell phones regarding exposure to RF radiation.  The First Amendment issue was the controversial choice of standards in compelled disclosure in a commercial context: is the correct standard the commercial speech test of Central Hudson Gas & Elec. Corp. v. Pub. Serv. Comm’n of New York (1980) or the more lenient test for disclosure of Zauderer v. Office of Disciplinary Counsel of the Supreme Court of Ohio (1985)? A majority of the panel, affirming the district judge, held that Zauderer applied.

In the denial of rehearing and the denial of en banc review, the original panel judges in the majority, Fletcher and Christen,wrote briefly to rearticulate their views. While they stated their panel opinion "largely speaks for itself," they stressed that their opinion was consistent with other circuits.  The opinion has a thorough yet succinct list of the cases in this area. They concluded that:

Our colleague would have us create a circuit split with the D.C., First, Second and Sixth Circuits. We decline to do so on two grounds. First, circuit splits are generally to be avoided. Second, and more important, we believe that our four sister circuits got it right.

Writing a dissenting opinion from the denial of en banc was not Judge Friedland of the original panel - - - who did vote for rehearing - - - but Judge Kim Wardlaw, who wrote that although she does not ordinarily file "dissentals" (quotes in original), she believes that the Ninth Circuit should clarify that Zauderer's rational basis standard should apply only when the government compels speech to prevent consumer deception. She discussed the recent Ninth Circuit panel decision finding  warnings about sugary drinks violated the First Amendment. She argued that there was the potential for conflicting results as "district judges to make essentially factual judgments about a disclosure’s veracity and its burden on a business even before the parties have developed an evidentiary record." 

Judge Wardlaw concluded by stating that she is "looking forward" to  the next compelled disclosure case.  Most likely, she will not have too long to wait as this continues to be a contentious issue. 

Ninth Circuit Says California's Prorator Registration Law Likely Violates Dormant Commerce Clause

Steven D. Schwinn, John Marshall Law School

The Ninth Circuit ruled yesterday that California's prorator license law likely violates the Dormant Commerce Clause. In the same ruling, the court held that California's mandatory disclosure requirements likely did not violate the First Amendment, and that the case did not warrant Younger abstention. The court sent the case back for further proceedings.

The case, Nationwide Biweekly v. Owen, arose when California prosecutors and regulators targeted Nationwide Biweekly Administration for fraud investigations involving one of its mortgage-payoff products. Here's how it works: a consumer would pay to Nationwide his or her monthly mortgage bill every two weeks, instead of paying to the lender directly every month. Nationwide would then pay the lender every month. This meant that a consumer would pay to his or her lender, through Nationwide, an extra monthly payment each year and thus pay off the loan sooner. Nationwide advertised the product as a "100% savings," but failed adequately to disclose the discount rate (based on the time-value of money) and fees for the product. So what appears to be a cost-free (and thus savings-only) product in fact is not cost-free.

The Monterey County District Attorney's Office sent Nationwide a letter about the practice and alleged that Nationwide was violating several California laws. In particular, the DA's office wrote that Nationwide was violating two provisions that required it to say that it's not affiliated with the lender in any solicitation to consumers for its product. The letter also said that Nationwide was violating California's "prorator" registration law, which required a "prorator" (a "person who, for compensation, engages in whole or in part in the business of receiving money or evidences thereof for the purpose of distributing the money or evidences thereof among creditors in payment or partial payment of the obligations of the debtor") to obtain a license. But under California law, such a license is only available to a corporation if the corporation is "organized under the laws of this State for that purpose." The Commissioner later sent Nationwide a letter notifying the corporation that it was investigating Nationwide's unlicensed business activity.

Nationwide filed suit in the Northern District, seeking to enjoin enforcement of the disclosure requirements by the DA. A Nationwide subsidiary later filed suit in the Northern District seeking to enjoin enforcement of the registration requirement against the Commissioner. The court rejected Nationwide's motion for a preliminary injunction in both cases, and Nationwide filed notices of appeal.

About a month after the opening appellate briefs were filed, the DA and the Commission filed a joint enforcement suit in California Superior Court. The district court dismissed both federal cases under Younger, and Nationwide appealed.

The Ninth Circuit ruled first that Younger abstention was not appropriate, because "before the date that the state case was filed, the district court had already conducted proceedings of substance on the merits." In particular, the court "spend a substantial amount of time evaluating the merits of the cases in considering and denying (in a detailed and reasoned order) Nationwide's motions for preliminary injunctions."

The court went on to hold that Nationwide was unlikely to succeed on its First Amendment claim. It ruled that under Zauderer, the "required disclaimers--short, accurate, and to the point--are reasonably related to California's interest in preventing . . . deception."

Finally, the court said that California's licensing requirement likely violated the Dormant Commerce Clause, because California's requirement makes in-state incorporation a prerequisite to getting a license to engage in interstate commerce.

Judge Montgomery argued in dissent that the federal proceedings were still at an embryonic stage and the court should have abstained under Younger.

Daily Read: American Sociological Ass'n Takes Issue With CJ Roberts

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

 In an open letter to Chief Justice Roberts, the President of the American Sociological Association, Eduardo Bonilla-Silva, responded to the Roberts's comment during the Gill v. Whitford oral argument that social science data regarding partisan gerrymandering was "sociological gobbledygook." 

After noting that during the oral argument "Justices Kagan and Sotomayor subsequently expressed concern about your statement and spoke to the value of social science measures," President Bonilla-Silva continued:

In an era when facts are often dismissed as “fake news,” we are particularly concerned about a person of your stature suggesting to the public that scientific measurement is not valid or reliable and that expertise should not be trusted.  What you call “gobbledygook” is rigorous and empirical.  The following are just a few examples of the contributions of sociological research to American society that our members offered in response to your comment:

• Clear evidence that separate is not equal
• Early algorithms for detecting credit card fraud
• Mapped connections between racism and physiologic stress response
• Network analysis to identify and thwart terror structures and capture terrorists
• Pay grades and reward systems that improve retention among enlisted soldiers
• Modern public opinion polling
• Evidence of gender discrimination in the workplace
• Understanding of the family factors that impact outcomes for children
• Guidance for police in defusing high-risk encounters
• Strategies for combatting the public health challenge of drug abuse

President Bonilla-Silva also offered additional training for Chief Justice Roberts:

Should you be interested in enhancing your education in this area, we would be glad to put together a group of nationally and internationally renowned sociologists to meet with you and your staff. Given the important ways in which sociological data can and has informed thoughtful decision-making from the bench, such time would be well spent.

Indeed, during the oral argument Chief Justice Roberts did comment that his "goobledygook" perspective might be attributable to "simply my educational background." 

There has not yet been a reported response from the Chief Justice.

SCOTUS Vacates Fourth Circuit Opinion in Muslim Ban 2.0

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

 The United States Supreme Court issued an Order in Trump v. International Refugee Assistance Project (IRAP) bring the case to a close:

We granted certiorari in this case to resolve a challenge to“the temporary suspension of entry of aliens abroad under Section 2(c) of Executive Order No. 13,780.” Because that provision of the Order “expired by its own terms” on September 24, 2017, the appeal no longer presents a “live case or controversy.” Burke v. Barnes, 479 U. S. 361, 363 (1987). Following our established practice in such cases, the judgment is therefore vacated, and the case is remanded to the United States Court of Appeals for the Fourth Circuit with instructions to dismiss as moot the challenge to Executive Order No. 13,780. United States v. Munsingwear, Inc., 340 U. S. 36, 39 (1950). We express no view on the merits.

Justice Sotomayor dissents from the order vacating the judgment below and would dismiss the writ of certiorari as improvidently granted.

Recall that the en banc Fourth Circuit concluded 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. The main opinion was authored by Chief Judge Roger Gregory with six other judges joining in full.  The case had proceeded directly to en banc from Maryland District Judge Theodore Chuang's Opinion and nationwide injunction .

Most likely, a similar order disposing on Hawai'i v. Trump will follow.

However, the new "travel ban" - - - the third attempt by the Trump Administration - - - has already been challenged.

 

 

Daily Read: Columbus/Indigenous Peoples Day

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

 The second Monday in October is designated as Columbus Day, the day that Italian mariner Christopher Columbus allegedly first saw the "New World," but is increasingly commemorated as Indigenous Peoples Day, recognizing that Native Americans did not necessarily benefit from European colonization.

A good read is Oneida Nation scholar Doug Kiel's article, Bleeding Out: Histories and Legacies of Indian Blood ” in  The Great Vanishing Act: Blood Quantum and the Future of Native Nations (2017).  Kiel writes of the European preoccupation with "blood" as a source of identity - - - and white supremacy - - -  tracing it to the Spanish Inquisition and anxieties about"Christian blood" being contaminated by Jewish and Muslim blood. Moreover, he contrasts Native racial status to the "one-drop rule” of "African American hypodescent, according to which individuals of mixed ancestry only inherit the status of their black kin, with “African blood” polluting all other types of 'blood.'" On the other hand,  “white blood” has the capacity to fully absorb “Indian blood" according to early cases, as well as more recent ones. For example, Kiel notes that Justice Alito's opinion for the Court in Adoptive Couple v. Baby Girl (the "Baby Veronica" case), begins by describing the blood quantum of the child: " (Baby Girl) who is classified as an Indian because she is 1.2% (3/256) Cherokee."  Other possibilities for identity, including nationality and culture, are flattened.

The erasure of Native identity is one argument against the celebration of Columbus Day.  Last year, in the Presidential Proclamation for Columbus Day, then-President Obama expressed recognition for the rationales of Indigenous People's Day:

As we mark this rich history, we must also acknowledge the pain and suffering reflected in the stories of Native Americans who had long resided on this land prior to the arrival of European newcomers. The past we share is marked by too many broken promises, as well as violence, deprivation, and disease. It is a history that we must recognize as we seek to build a brighter future -- side by side and with cooperation and mutual respect. We have made great progress together in recent years, and we will keep striving to maintain strong nation-to-nation relationships, strengthen tribal sovereignty, and help all our communities thrive.

 In the Presidential Proclamation for Columbus Day this year, current-President Trump does not acknowledge Native or Indigenous peoples.

 image: "My World is Not Flat,"

by Margaret Bagshaw

via

 

Time to Revisit Qualified Immunity?

Here's a constitutional issue that might unite some on the right and the left: Should the Court revisit the qualified immunity doctrine?

Qualified immunity provides protection for state actors from liability for constitutional torts when the office did not violate "clearly established statutory or constitutional rights of which a reasonable person would have known." The doctrine was created by the Court, not by the plain text of the Constitution or by 42 U.S.C. Sec. 1983, the basis for constitutional tort claims against state officers. It operates as a back-door way to shield an officer from liability (and thus deny a victim a remedy) in cases where a constitutional right hasn't (yet) been established. That leaves a lot of room for immunity. Moreover, a court granting qualified immunity does not necessarily reach the merits, and so never needs to rule on the underlying constitutionality of the officer's act. In other words, under the doctrine an officer could enjoy qualified immunity from liability for a specific act that the courts have not (yet) ruled unconstitutional, and we also don't learn whether it's actually unconstitutional.

Justice Thomas raised concerns about the doctrine in his concurrence last Term in Ziglar v. Abassi. And the ACLU argued this Term in Wesby (as amicus) that the doctrine lacks a firm basis in history and over-protects officers. (The Court heard oral arguments this week in Websy, the Fourth Amendment case involving arrests for unlawful entry after officers raided a house party in D.C. While the Justices asked about the application of qualified immunity, they showed no interest in reevaluating the doctrine itself.) Prof. William Baude explains some of the concerns about the doctrine in this Federalist Society podcast.

ACLU Sues to Halt Trump Administration Roll-Back of ACA's Contraception Benefits

The ACLU filed suit yesterday in the Northern District of California challenging the Trump Administration's roll-back of the contraception benefit under the Affordable Care Act. The lawsuit seeks declaratory and injunctive relief.

The lawsuit also illustrates the new approach to religion under this administration as stated yesterday in AG Sessions's principles of religious liberty.

The suit, which also includes SEIU-UHW as a plaintiff, argues that the roll-back in HHS's interim final regulations would permit religiously affiliated organizations that currently get an exemption from the contraception-coverage requirement to back out of the requirement altogether. (The exemption permits religiously affiliated organizations to pass the implementation off to their insurer or third-party administrator, so that the organization itself doesn't have anything to do with contraception, but so that employees and students of the organization still get direct and free access through the insurer or third-party administrator. The interim final rules would permit those organizations to deny contraception coverage entirely.)

The complaint argues that the move violates the Establishment Clause, equal protection, the Administrative Procedure Act, and the ACA itself:

By authorizing businesses, non-profit organizations, and universities to impose their religious beliefs on their employees and students, and rob women of health coverage that is otherwise guaranteed by law, the Religious Exemption [interim final rule] violates the Establishment Clause. Furthermore, by authorizing employers to block contraception coverage based on religious or other grounds, both [interim final rules] violate the right to equal protection guaranteed by the Fifth Amendment to the U.S. Constitution. Moreover, because the [interim final rules] were promulgated without good cause for foregoing notice and comment and without providing a reasoned basis for the change in agency position as required by the Administrative Procedure Act, they violate federal statutory requirements that agencies not act in an arbitrary and capricious manner and observe procedures required by law. Finally, the [interim final rules] exceed the statutory authority given to the agencies by the Affordable Care Act.

As to the Establishment Clause, the complaint argues that the purpose and effect of the interim final rules were to advance religion, and that they foster an excessive government entanglement with religion.

It's no coincidence that the interim final rules came out the same day as AG Sessions's principles on religious liberty.

But note that while the ACLU complaint speaks in terms of the Lemon test (purpose, effect, entanglement), AG Sessions's principles don't mention the case. The principles instead discuss the Establishment Clause barely (privileging free exercise) and only in terms of "establishing a religion and coercing Americans to follow it," "restrict[ing] government from interfering [in religion]," "prohibit[ing] government from officially favoring or disfavoring particular religious groups," and "neutrality towards religion."

In other words, AG Sessions's principles back off the Establishment Clause concerns about religious purpose and effect, and even excessive entanglement, and instead emphasize only more blunt forms of government establishment of religion (and downplay even those, in favor of free exercise concerns). It's thus hardly a surprise that HHS would issue these interim final rules, even with a religious purpose and effect: they fall squarely within AG Sessions's free exercise interpretation, and do not violate his (lesser important) establishment interpretation.

In yet other words, these interim regs are just a preview of what's to come under the Sessions approach to religion.

AG Releases Principles of Religious Liberty

Steven D. Schwinn, John Marshall Law School

Attorney General Jeff Sessions today released a memo for all executive departments and agencies on Federal Law Protections for Religious Liberty. The document contains 20 "principles of religious liberty" that "should be understood and interpreted in light of the legal analysis set forth in the appendix to this memorandum."

The document came out the same day as HHS's new interim final rules that employers more leeway to object on religious grounds to the Obamacare "contraceptive mandate."

The HHS rules may well predict how we might expect the government to implement AG Sessions's principles. The principles themselves largely rehearse existing law (but emphasizing and tilting toward free exercise), but may open the door to policies (like HHS's new rules) that lean toward religion. 

The principles hit on several lightning rods in recent religion debates, including the "contraception mandate," IRS treatment of religious non-profits, abortion, and religious organizations' participation in government contracting and aid programs.

The Appendix on Free Exercise spells out the position on generally applicable laws, stating that "even a neutral, generally applicable law is subject to strict scrutiny under this Clause if it restricts the free exercise of religion and another constitutionally protected liberty, such as the freedom of speech or association, or the right to control the upbringing of ones' children." The provision goes on merely to describe Supreme Court cases in this area, but the language could support a position that laws prohibiting discrimination by sexual orientation are unconstitutional--the exact position DOJ took in Masterpiece Cake. It's not clear under the principles how far the government might extend this argument.

As to government contracting and aid programs, the Appendix on the Establishment Clause gives a flavor of the overall orientation of the document--restating existing law, with a decided tilt toward religion, leaving us to wait and see just how far these principles will extend. Here's that portion in full (citations omitted):

The Establishment Clause, too, protects religious liberty. It prohibits government from establishing a religion and coercing Americans to follow it. It restricts government from interfering in the internal governance or ecclesiastical decisions of a religious organization. And it prohibits government from officially favoring or disfavoring particular religious groups as such or officially advocating particular religious points of view. Indeed, "a significant factor in upholding governmental programs in the face of Establishment Clause attack is their neutrality towards religion." That "guarantee of neutrality is respected, not offended, when the government, following neutral criteria and evenhanded policies, extends benefits to recipients whose ideologies and viewpoints, including religious ones, are broad and diverse." Thus, religious adherents and organizations may, like nonreligious adherents and organizations, receive indirect financial aid through independent choice, or, in certain circumstances, direct financial aid through a secular-aid program.

ACS Issue Brief: The Troubling Turn in State Preemption

Check out the latest American Constitution Society Issue Brief, The Troubling Turn in State Preemption: The Assault on Progressive Cities and How Cities Can Respond, by Richard Briffault, Nestor Davidson, Paul A. Diller, Olatunde Johnson, and Richard C. Schragger. From the intro:

This Issue Brief canvasses the current wave of preemption and the primary legal theories that these state-local conflicts present, as well as claims that might arise as these battles continue. The Brief also explores other possibilities for strengthening home rule to advance progressive local policymaking at a moment when cities increasingly stand on the front lines of economic justice, civil rights, sustainable development, and so many other critical policy domains.