Constitutional Law Prof Blog

District Court Tosses Manafort's Civil Case Challenging Mueller's Authority

Steven D. Schwinn, John Marshall Law School

Judge Amy Berman Jackson (D.D.C.) on Friday dismissed Paul Manafort's civil case challenging the appointment of Robert Mueller as special counsel, and therefore Meuller's authority to prosecute him. The ruling will almost certainly withstand any appeal and thus ends Manafort's civil challenge to Mueller's authority. It has no effect on Manafort's criminal case, or his ability to challenge Mueller's authority in that case.

Manafort original pleading challenged his indictment and future actions by Mueller, arguing that Mueller's appointment was invalid and that his indictment exceeded Mueller's authority. But Manafort subsequently refined his claim and sought only prospective relief: an order declaring Mueller's appointment order invalid (but only as to paragraph (b)(ii), authorizing the Special Counsel to investigate "any matters that arose or may arise directly from the investigation") and "enjoining the Special Counsel's future ultra vires exercise of authority under that Order." Manafort backed away from his earlier and much broader claims, because circuit law would certainly foreclose those. But by seeking only prospective relief, Manafort did himself in.

Judge Jackson ruled that "Manfort's situation falls squarely within the scope of" Deaver v. Seymour, the 1987 case in which the D.C. Circuit extended Younger abstention and held that the subject of a criminal investigation cannot bring a civil action to attack an impending federal prosecution (except when the criminal case chilled First Amendment rights, not applicable here). In short:

[A] civil case is not the appropriate vehicle for taking issue with what a prosecutor has done in the past or where he might be headed in the future. It is a sound and well-established principle that a court should not exercise its equitable powers to interfere with or enjoin an ongoing criminal investigation when the defendant will have the opportunity to challenge any defects in the prosecution in the trial court or on direct appeal. Therefore, the Court finds that this civil complaint must be dismissed.

Moreover, Judge Jackson ruled that Manafort lacked standing, because he couldn't plead imminent harm, and because his claim wasn't ripe. (Remember that he refined his case to ask for only prospective relief.)

Check it Out: Shugerman on Mueller Protection (and Scalia's Dissent in Morrison)

Check out Jed Shugerman's piece in Slate, Stare Scalia, arguing that some Senator's obsession with Justice Scalia's dissent in Morrison v. Olson "is leading them to make sloppy mistakes."

Shugerman wrote after Senator Ben Sasse said during last week's Judiciary Committee debate over the Mueller protection bill that "[m]any of us think we are bound" by Justice Scalia's lone dissent in Morrison.

Here's Steve Vladeck and Eric Posner's letter to the committee explaining why Sasse's position is wrong. Here's our coverage of the Committee's hearing last September on these same issues.

SCOTUS Upholds Inter Partes Review Against Article III Challenge

Steven D. Schwinn, John Marshall Law School

The Supreme Court this week upheld a congressionally authorized practice called "inter partes review" that allows for reconsideration and cancellation by the Patent and Trademark Office of an already-issued patent. The Court said that inter partes review didn't violate Article III (by assigning a role of the judiciary to the PTO) or the Seventh Amendment.

The case tested inter partes review against Article III, on the argument that inter partes review represents an impermissible delegation of a core judicial function to an executive agency.

The Court, drawing on precedent, said that patents fell within the "public-rights doctrine," which permits executive or legislative bodies to determine matters "arising between the government and others." And moreover, inter partes review "involves the same basic matter as the grant of a patent" in the first place, and is therefore only a kind of "second look at an earlier . . . grant" by the PTO.

Justice Breyer wrote a concurrence, joined by Justices Ginsburg and Sotomayor, saying that "the Court's opinion should not be read to say that matters involving private rights may never be adjudicated other than by Article III courts."

Justice Gorsuch, joined by Chief Justice Roberts, dissented, arguing that the practice cut into the unique Article III role and independence of the courts and impermissibly assigned the role to the PTO. (Chief Justice Roberts and Justice Gorsuch (joined by Justice Kennedy) also dissented in Patchak, the case earlier this Term holding that a congressional act instructing courts to dismiss a certain class of cases didn't violate Article III, even when the act was targeted at a particular pending case, for similar reasons. These dissents are well worth a read.)

Check it Out: Greenhouse on the "New Civil War"

Check out Linda Greenhouse's piece at the NYT, The Supreme Court and the New Civil War, arguing that the President's policies are turning Rehnquist-era federalism principles on their head.

SCOTUS Hears Oral Arguments in Travel Ban Case

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

The Court heard oral arguments in Trump v. Hawai'i, releasing same-day audio in the case in recognition of its importance. Recall that the Court granted certiorari to the Ninth Circuit's opinion in Hawai'i v. Trump regarding 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, also known as E.O 3, or Travel Ban 3.0, or Muslim Ban 3.0. The Ninth Circuit, affirming a district judge, found Travel Ban 3.0 unlawful under the Immigration and Nationality Act.  The Court also took certiorari on the Establishment Clause issue. There were also constitutional issues involves standing.

Arguing for the United States and President Trump, Solicitor General Noel Francisco opened and repeatedly stressed that E.O. 3 was the result of a "worldwide multi-agency review." Yet the person of President Trump was a definite, if at times implicit, presence in the argument. For example, during the Solicitor General's argument Justice Kagan posed a hypothetical:

So this is a hypothetical that you've heard a variant of  before that the government has, at any rate,  but I want to just give you. 

So let's say in some future time a -­a President gets elected who is a vehement anti-Semite and says all kinds of denigrating comments about Jews and provokes a lot of resentment and hatred over the course of a campaign and in his presidency and, in course of that, asks his staff or his cabinet members to issue a proc -- to issue recommendations so that he can issue a proclamation of this kind, and they dot all the  i's and they cross all the t's.

And what emerges -- and, again, in the context of this virulent anti-Semitism – what emerges is a proclamation that says no one shall enter from Israel. 

**** “this is a out-of-the-box kind of President in my hypothetical.  And –

(Laughter)

**** And -- and who knows what his heart of hearts is.  I mean, I take that point.  But the question is not really what his heart of hearts is.  The question is what are reasonable observers to think -­

This discussion takes place in the context of whether the deferential standard of Kleindienst v. Mandel (1972) should apply, but also applies to the Establishment Clause problem of whether the EO has a secular purpose under McCreary County v. ACLU of Kentucky (2005).

Arguing for Hawai'i, Neal Katyal stated that Hawai'i did not rely on any campaign statements for intent, but only presidential statements, citing the President's "tweeting of these three virulent anti-Muslim videos" after the present EO was issued, and the presidential spokesperson being asked to explain these retweets saying, according to Katyal's argument, "The President has spoken about exactly this in the proclamation."

Chief Justice Roberts asked whether the taint of any presidential statements "applies forever."  Katyal stressed that the President had not disavowed the statements or moved away from them. 

Justice Breyer, among others, seemed concerned that the exceptions in the policy remained opaque, but Alito flatly stated that "it does not look at all like a Muslim ban."

Predicting outcomes from oral arguments is always a dubious enterprise, but this is undoubtedly a close case. Additionally, the Chief Justice's appearance at the President's State Dinner the evening before oral arguments has caused some to question his impartiality, or, at least the appearance of impartiality.

[image via]

 

Another Federal Judge Enjoins President's DACA Rescission

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

In a 60 page Memorandum Opinion in NAACP v. Trump, United States District Judge for the District of Columbia, Judge John Bates "vacated" the Department of Homeland Security's decision to rescind the DACA program, but stayed its order of vacatur for 90 days "to afford DHS an opportunity to better explain its view that DACA is unlawful."

Recall that in February Judge Nicholas Garaufis of the Eastern District of New York granted a preliminary injunction against the rescission of DACA and also recall that Judge Alsup of the Northern District of California issued a preliminary injunction in January which the government is appealing.

Judge Bates' decision rests on an application of the Administrative Procedure Act (APA), finding that the decision by DHS to rescind DACA, the Deferred Action for Childhood Arrivals program, covering 800,000 people in the United States who are not citizens but who have been residents since childhood., was "arbitrary and capricious" because the Department failed adequately to explain its conclusion that the program was unlawful.  Judge Bates stated that "neither the meager legal reasoning nor the assessment of litigation risk provided by DHS to support its rescission decision is sufficient to sustain termination of the DACA program."

Judge Bates held that the "litigation risk" argument, which would would render the decision to rescind presumptively  unreviewable, was not independent of the reality that the "rescission was a general enforcement policy predicated on DHS’s legal determination that the program was invalid when it was adopted." This legal determination is what raises the constitutional issue: DHS determined that DACA lacked constitutional authority. Although, as Judge Bates noted, "it seems that no court has yet passed judgment on DACA’s constitutionality."

Thus, Judge Bates gave DHS more time to make it arguments that DACA lacked constitutional (and statutory) authority to support its rescission decision, and also deferred ruling on the plaintiffs' constitutional challenges to the rescission as violating due process and equal protection.

 

Check it Out: NYT Editorial on Presidential War Powers and the Kaine-Corker AUMF Bill

It concludes:

Congress needs to be more involved in decisions like those about when and where America fights terrorists. But the Kaine-Corker bill would not make Congress take enough responsibility for how these decisions are made and would give presidents too great an ability to keep spreading the war on terrorism.

SCOTUS Hears Oral Arguments in Texas Redistricting Case Abbott v. Perez

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

The United States Supreme Court heard oral arguments in Abbott v. Perez, regarding the constitutionality under the Equal Protection Clause and the validity under the Voting Rights Act of the redistricting plan enacted by the Texas Legislature in 2013.  Recall that in an extensive opinion in August 2017,  the three judge court made detailed findings, one of which was that the Texas legislature engaged on intentional racial discrimination violating the Fourteenth Amendment.

Much of the argument centered on the acts of the Texas legislature in 2013 adopting maps which had previously been found invalid because of racial discrimination. Arguing for Texas, Scott Keller, the Texas Solicitor General, argued that the Texas legislature was entitled to a presumption of good faith and that the "taint" did not carry forward, and Edwin Kneedler, from the United States Solicitor General's Office, likewise stressed that the "taint" should not carry forward. Arguing for various challengers to the redistricting, Max Hicks and Allison Riggs, both stressed the standard of Village of Arlington Heights v. Metro. Hous. Dev. Corp. (1997), contending that the taint does not end, and stressing the extensive findings by the three judge court.

The question of how long a discriminatory intent taint persists sometimes seemed as if it was a preview of the next oral argument, that in Hawai'i v. Trump.

Yet the oral arguments in Abbott v. Perez were also preoccupied with the "jurisdictional" question; Chief Justice Roberts at several points directed the parties to move to the merits.  This jurisdictional question involves the status of the three judge court order and whether it is actually a reviewable order. Recall that the order was not a preliminary injunction, but instead the court directed the Texas Attorney General to provide a "written advisory within three business days stating whether the Legislature intends to take up redistricting in an effort to cure these violations and, if so, when the matter will be considered." Justice Breyer suggested that the operable "piece of paper" in the case was not a judgment or preliminary injunction, but only a direction to come to court.

While jurisdictional issues are always important to the Court, when the jurisdiction involves appeals as of right from three judge court decisions, the stakes are higher in terms of workload. As Justice Sotomayor asked, what distinguishes this case from the  "millions of others - - - not millions, I'm exaggerating greatly - - - the hundreds of these . . . ." 

 

 

Ninth Circuit Says Monkey Has Article III Standing

Steven D. Schwinn, John Marshall Law School

The Ninth Circuit ruled today that a monkey had Article III standing to sue for copyright infringement. But the court also ruled that the monkey lacked statutory standing under the Copyright Act, so dismissed the claim.

The case, Naruto v. Slater, arose when wildlife photographer David Slater left his camera unattended in a reserve on the island of Sulawesi, Indonesia, to allow crested macaque monkeys to photograph themselves. Naruto, one of the monkeys, did just that, and Slater published his picture in a book of "monkey selfies." Naruto, through his next of friend PETA, sued for copyright infringement.

The Ninth Circuit ruled that Naruto had Article III standing. The court said that circuit precedent tied its hands--the Ninth Circuit previously ruled in Cetacean Community v. Bush that the world's whales, porpoises, and dolphins could have Article III standing to sue, although they lacked statutory standing under the relevant environmental statutes--and went on to urge the Ninth Circuit to reverse that precedent.

But the court further held that Naruto lacked statutory standing under the Copyright Act, because that Act doesn't permit a monkey to sue. It dismissed Naruto's case on this ground.

The court ruled that PETA didn't have next-of-friend standing, because it didn't assert a relationship with Naruto, and because "an animal cannot be represented, under our laws, by a 'next friend.'"

Puerto Rico District Judge Rules on Gender-Marker Birth Certificates

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

In a relatively brief opinion in Arroyo-Gonzalez v. Rossello-Nevares, United States District Judge for the District of Puerto Rico Judge Carmen Consuelo Cerezo ruled that the present practices of the Commonwealth of Puerto Rico regarding change in birth certificates was unconstitutional.

Here is the essence of Judge Cerezo's opinion:

By permitting plaintiffs to change the name on their birth certificate, while prohibiting the change to their gender markers, the Commonwealth forces them to disclose their transgender status in violation of their constitutional right to informational privacy. Such forced disclosure of a transgender person’s most private information is not justified by any legitimate government interest. It does not further public safety, such that it would amount to a valid exercise of police power. To the contrary, it exposes transgender individuals to a substantial risk of stigma, discrimination, intimidation, violence, and danger. Forcing disclosure of transgender identity chills speech and restrains engagement in the democratic process in order for transgenders to protect themselves from the real possibility of harm and humiliation. The Commonwealth’s inconsistent policies not only harm the plaintiffs before the Court; it also hurts society as a whole by depriving all from the voices of the transgender community.

The judge thus set out the process to enable a new birth certificate to be issued in Puerto Rico.

 

Check it Out: Yale J. on Regulation Symposium on Lucia

Check out the Yale Journal on Regulation's symposium on Lucia v. SEC, the case testing whether SEC ALJs are principal officers under the Appointments Clause (and, if so, appointed in violation of the Clause). The Court will hear oral arguments in the case on Monday.

DNC Sues Trump, Russia, Assange for Hacking Servers, Aiding Trump

Here's the Democratic National Committee's complaint against President Trump, the Trump campaign and aides, Russia, Russian agents, Julian Assange, and others for hacking into the DNC servers and releasing electronic communications in aid of then-candidate Trump.

The complaint, filed today in the Southern District of New York, alleges violations of the Computer Fraud and Abuse Act, RICO, the Wiretap Act, the Stored Communications Act, the Digital Millennium Copyright Act, the Trade Secrets Act, and state torts.

The DNC claims harms to its computer systems, harms to its communications and relations with various constituencies, threats against employees, and "significant interruption and disruption of its political and fundraising activities throughout the United States."

Seventh Circuit Affirms Nationwide Injunction Against Sessions's Clamp Down on Sanctuary Cities

Steven D. Schwinn, John Marshall Law School

The Seventh Circuit today affirmed a lower court's nationwide injunction against two portions of Attorney General Jeff Sessions's clamp-down on sanctuary cities. The ruling--a significant victory for Chicago and other sanctuary jurisdictions--means that the government cannot enforce the "notice" and "access" conditions on sanctuary cities' receipt of federal law-enforcement JAG grants.

We posted on the lower court's ruling here.

Recall that the lower court ruled that Chicago demonstrated a likelihood of success in its challenge to two key conditions that AG Sessions imposed on sanctuary cities--the notice condition and the access condition--and imposed a nationwide preliminary injunction against the enforcement of those conditions. (The notice condition requires sanctuary jurisdictions to comply with a DHS request to provide advance notice of any scheduled release date and time for a particular alien. The access condition requires sanctuary jurisdictions to allow federal agents to have access to any correctional facility to meet with aliens and interrogate them.) (The lower court did not enjoin the enforcement of the third condition, that sanctuary jurisdictions certify compliance with 8 U.S.C. Sec. 1373.)

The government argued that the lower court erred on the merits and that it exceeded its authority in issuing a nationwide injunction. The Seventh Circuit disagreed on both counts.

The court ruled that AG Sessions lacked unilateral authority to impose the notice and access conditions on receipt of a federal grant, because that's Congress's job:

The Attorney General in this case used the sword of federal funding to conscript state and local authorities to aid in federal civil immigration enforcement. But the power of the purse rests with Congress, which authorized the federal funds at issue and did not impose any immigration enforcement conditions on the receipt of such funds. In fact, Congress repeatedly refused to approve of measures that would tie funding to state and local immigration policies. Nor, as we will discuss, did Congress authorize the Attorney General to impose such conditions.

The court found nothing in the INA that authorized the AG to impose these conditions, and it rejected the government's claim that general statutory authority for the Assistant Attorney General, under 34 U.S.C. Sec. 10102(a)(6), authorized the AG to impose these conditions. That subsection says that "[t]he Assistant Attorney General shall . . . exercise such other powers and functions as may be vested in the Assistant Attorney General pursuant to this chapter or by delegation of the Attorney General, including placing special conditions on all grants, and determining priority purposes for formula grants." (Emphasis added.) The court said that "[t]he inescapable problem here is that the Attorney General does not even claim that the power exercised here is authorized anywhere in the chapter, nor that the Attorney General possesses that authority and therefore can delegate it to the Assistant Attorney General. In fact, as set forth above, the Byrne JAG provisions set forth the duties of the Attorney General and do not provide any open-ended authority to impose additional conditions."

Two judges went on to say that the district court was well within its authority to grant a nationwide injunction:

The case before us presents an example of the type of case in which a district court should properly be able to apply an injunction nationwide. The case presents essentially a facial challenge to a policy applied nationwide, the balance of equities favors nationwide relief, and the format of the Byrne JAG grant itself renders individual relief ineffective to provide full relief.

Judge Manion dissented from this portion of the ruling.

Sixth Circuit Strikes Ohio Statute Defunding Planned Parenthood

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

In its opinion in Planned Parenthood of Greater Ohio v. Himes, a unanimous Sixth Circuit panel, affirming the district judge, found Ohio 's Revised Code § 3701.034 unconstitutional under the unconstitutional conditions doctrine. The Ohio statute prohibited all funds it receives through six non-abortion-related federal health programs, such as the Violence Against Women Act, from being used to fund any entity that performs or promotes nontherapeutic abortions, or becomes or continues to be an affiliate of any entity that performs or promotes nontherapeutic abortions. The statute was aimed at Planned Parenthood and similar organizations.

The state relied upon cases such as Maher v. Roe and Rust v. Sullivan, but the court's opinion, authored by Judge Helene White, stated:

Plaintiffs do not claim an entitlement to government funds. They acknowledge the government’s right to define the parameters of its own programs, and have complied with all program requirements. What they do claim is a right not to be penalized in the administration of government programs based on protected activity outside the programs.

Instead, Judge White wrote, the correct precedent was Agency for Int’l Dev. v. Alliance for Open Soc’y Int’l (AOSI) (2013). Recall that in the "prostitution-pledge" case, the United States Supreme Court held unconstitutional under the First Amendment a provision of a federal funding statute requiring some (but not other) organizations to have an explicit policy opposing sex work. For the Sixth Circuit, AOSI "reiterated that the government may not require the surrender of constitutional rights as a condition of participating in an unrelated government program." In short,

the government cannot directly prohibit Plaintiffs from providing and advocating for abortion on their own time and dime, [ and thus ] it may not do so by excluding them from government programs for which they otherwise qualify and which have nothing to do with the government’s choice to disfavor abortion.

The Sixth Circuit found that the Ohio statute violated unconstitutional conditions based on constitutional infringements of both the Due Process Clause and the First Amendment. On the due process issue, the court found that the due process right to an abortion was at issue. The court rejected the "importation" of the undue burden standard into this analysis, but also reasoned that even under the undue burden analysis, especially in the United States Supreme Court's most recent abortion ruling in Whole Woman's Health v. Hellerstedt (2016), the statute violated due process.

On the First Amendment claim, relating to the Ohio statute's denial of funds to any organization that promotes abortions, again the Sixth Circuit quoted Agency for Int’l Dev. v. Alliance for Open Soc’y Int’l (AOSI): the government does not "have the authority to attach ‘conditions that seek to leverage funding to regulate speech outside the contours of the program itself.’ "

While there is some potential for a circuit split given the Seventh Circuit's opinion in Planned Parenthood of Indiana, Inc. v. Commissioner of Indiana State Department of Health, 699 F.3d 962 (7th Cir. 2012), cert. denied, 569 U.S. 1004 (2013), the Sixth Circuit extensively analyzes the Seventh Circuit's opinion and concludes that because it was decided before Agency for Int’l Dev. v. Alliance for Open Soc’y Int’l (AOSI), it is no longer persuasive.

 

Check it Out: Chesney and Vladeck on the Corker-Kane AUMF

Check out Profs. Bobby Chesney and Steve Vladeck's National Security Law Podcast on The Corker-Kane AUMF. Here's Chesney's primer at Lawfare, and here's the text.

Daily Read: Curing the Inequality of Privacy Protections

Whose privacy counts? Whose privacy should count?

While these questions could be asked across many doctrines, one intersection occurs in the origins of privacy, including the tort remedies for its invasion. In his article Privacy's Double Standards, available on ssrn and forthcoming in Washington Law Review, Professor Scott Skinner-Thompson argues for the necessity of equal protection standards in privacy protection torts. Centered on the tort of public disclosure of private facts, Skinner-Thompson rightly observes that it has been applied unevenly, with privileged and celebrity plaintiffs prevailing (think: Hulk Hogan v. Gawker) when more marginalized plaintiffs (such as victims of revenge porn) have not, noting that this is perhaps not surprising given the origins of the tort in "Brahman society." Skinner-Thompson discusses these cases and numerous others to support this observation (and provides a nice appendix of his research methodology).

Yet rather than simply detail the disparities evinced in the cases, Skinner-Thomson argues that just as the First Amendment has shaped the doctrines of torts, so too should constitutional equality principles be applied to the inequalities in tort remedies for invasions of privacy. He argues that "to better comply with constitutional equality principles, the substance of privacy tort law must be relaxed so as to ensure that individuals in marginalized communities are able to bring claims on the same terms as privileged individuals."

His specific recommendations for reshaping the tort doctrine of public disclosure of private facts:

• All plaintiffs, and not just well-known ones, should be able to prevail in public disclosure tort claims" even if they have shared the information at issue (for example, their HIV status, sexual orientation, or intimate photographs) within certain confines."
• All plaintiffs should be able to prevail in public disclosure tort claims even if the defendant has not shared the information with the world at large (for less well-known plaintiffs, the interest of the world can be limited, but, for example, disclosure of one's sexual orientation to one's small community church can be equally devastating).

As Skinner-Thompson makes clear, he is not arguing that a privacy tort plaintiff  " will be able to successfully bring an equal protection challenge to the way the public disclosure tort is operating," but it is to argue that this tort could be  - - - and should be - - - inflected with equal protection concerns.  

[image: Edgar Degas, Mrs Jeantaud in the Mirror, circa 1875 via]

SCOTUS Finds INA Deportation Provision for "Crime of Violence" Unconstitutionally Vague

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

In its opinion in Sessions v. Dimaya, the United States Supreme Court held that a portion of the definition of "crime of violence" in 18 U.S.C. §1, as applied in the deportation scheme of the Immigration and Nationality Act,  see 8 U. S. C. §§1227(a)(2)(A)(iii), 1229b(a)(3), (b)(1)(C), is unconstitutionally vague.

The Court's somewhat fractured opinion concluded that the residual clause, §16(b), which defines a “crime of violence” as “any other offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense" is unconstitutionally vague.

Justice Kagan's opinion was joined in its entirety by Justices Ginsburg, Breyer, and Sotomayor. Justice Gorsuch joined only Parts I, III, IV–B, and V, thus making these sections the opinion of the Court.

The Court's opinion relied on Johnson v. United States (2015), authored by Justice Scalia, in which the Court found a similar residual clause in the Armed Career Criminal Act (ACCA), defining “violent felony” as any felony that “otherwise involves conduct that presents a serious potential risk of physical injury to another,” 18 U. S. C. §924(e)(2)(B) unconstitutionally “void for vagueness” under the Fifth Amendment’s Due Process Clause.

The Court in Dimaya ruled that

§16(b) has the same “[t]wo features” that “conspire[d] to make [ACCA’s residual clause] unconstitutionally vague" {in Johnson}.  It too “requires a court to picture the kind of conduct that the crime involves in ‘the ordinary case,’ and to judge whether that abstraction presents” some not-well-specified-yet-sufficiently- large degree of risk. The result is that §16(b) produces, just as ACCA’s residual clause did, “more unpredictability and arbitrariness than the Due Process Clause tolerates.”

The United States and the dissenting opinions attempted to distinguish the INA provision from the ACCA provision in several ways. Kagan, writing for the Court in Part IV that "each turns out to be the proverbial distinction without a difference." 

Given Gorsuch's joining with the perceived more liberal-leaning Justices on the Court, his concurring opinion is sure to attract attention.  Gorsuch's substantial opinion (18 textual pages to Kagan's 25 page opinion for the Court and plurality), leans heavily on the foundations of due process, beginning

Vague laws invite arbitrary power. Before the Revolu­tion, the crime of treason in English law was so capa­ciously construed that the mere expression of disfavored opinions could invite transportation or death.

More importantly, Gorsuch disavows any notion that the context of immigration deportation merits any special consideration and that the Court's holding is narrow, stressing that the problem with the statute is the procedural one of failing to provide notice (and standards for judges) rather than the substantive choice by Congress.

Taken together with Johnson, the holding in Dimaya means that statutes must be much more precise when defining a "crime of violence" or risk being held unconstitutionally vague.

[image: caricature of Justice Neil Gorsuch by Donkey Hotey via]

District Judge Holds Transgender Military Ban Subject to Strict Scrutiny

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

In her opinion and Order in Karnoski v. Trump, United States District Judge Marsha Pechman of the Western District of Washington has reaffirmed her previous preliminary injunction (December 2017) on the basis of the plaintiffs' likelihood to succeed on the merits of their Equal Protection, Due Process, and First Amendment claims in their challenge to the President's ban on transgender troops in the military, and further decided that the military ban is subject to strict scrutiny. (Recall that previous to Judge Pechman's preliminary injunction, United States District Judge for the District of Columbia Colleen Kollar-Kotelly in Doe v. Trump partially enjoined the president's actions and United States District Judge Marvin Garvis of the District of Maryland in Stone v. Trump issued a preliminary injunction against the United States military's ban on transgender troops and resources for "sex-reassignment" medical procedures).

The government's motion for summary judgment and to dissolve the preliminary injunction relied in large part on the President's new policy promulgated in March 2018. As Judge Pechman phrased it, the 2018 Presidential Memorandum

purports to "revoke" the 2017 Memorandum and “any other directive [he] may have made with respect to military service by transgender individuals,” and directs the Secretaries of Defense and Homeland Security to “exercise their authority to implement any appropriate policies concerning military service by transgender individuals.”

Rejecting the government defendants' argument that the controversy was now moot, Judge Pechman concluded that the 2018 Memorandum and Implementation Plan "do not substantively rescind or revoke the Ban, but instead threaten the very same violations that caused it and other courts to enjoin the Ban in the first place." The judge acknowledged that there were a few differences, but was not persuaded by the government defendants' argument that the 2018 policy did not now mandate a “categorical” prohibition on service by openly transgender people.

Similarly, Judge Pechman found that the individual plaintiffs, the organizational plaintiffs, and the plaintiff State of Washington continued to have standing.

Most crucial in Judge Pechman's order is her decision that transgender people constitute a suspect class and thus the ban will be subject to strict scrutiny. (Recall that in the previous preliminary injunction, Judge Pechman ruled that transgender people were at a minimum a quasi-suspect class). In this opinion, she considers four factors:

• whether the class has been “[a]s a historical matter . . . subjected to discrimination,”
• whether the class has a defining characteristic that “frequently bears [a] relation to ability to perform or contribute to society,
• whether the class exhibits “obvious, immutable, or distinguishing characteristics that define [it] as a discrete group,"
• whether the class is “a minority or politically powerless.”

After a succinct analysis, she concludes that suspect class status is warranted and because the "Ban specifically targets one of the most vulnerable groups in our society," it  "must satisfy strict scrutiny if it is to survive."

However, Judge Pechman did not decide on the level of deference the government defendants should be accorded. Instead, she concluded that

On the present record, the Court cannot determine whether the DoD’s deliberative process—including the timing and thoroughness of its study and the soundness of the medical and other evidence it relied upon—is of the type to which Courts typically should defer.

However, she did agree with the government defendants that President Trump was not subject to injunctive relief, but did remain as a defendant for the purpose of declaratory relief.

Thus, Judge Pechman directed the parties to "proceed with discovery and prepare for trial on the issues of whether, and to what extent, deference is owed to the Ban and whether the Ban violates equal protection, substantive due process, and the First Amendment."

[image, Revolutionary War era soldier, NYPL, via]

 

District Court Says No Standing to Sue President for Ethics Disclosure

Steven D. Schwinn, John Marshall Law School

Judge Colleen Kollar-Kotelly (D.D.C.) ruled yesterday that an attorney appearing pro se lacked standing to sue President Trump for alleged deficiencies in his financial disclosure report that he was required to file as a candidate. The ruling ends this challenge.

The case, Lovitky v. Trump, arose when attorney Jeffrey Lovitky obtained a copy of then-candidate Trump's financial disclosure report from the Office of Government Ethics and discovered what he believed to be deficiencies in the reporting. Lovitky sued, arguing that the report included President Trump's personal debts and business debts, and that this "commingl[ing]" of personal and non-personal liabilities "mak[es] it impossible to identify which of the liabilities listed on the financial disclosure report were the liabilities of the President, in violation of [federal law]." Lovitky sought mandamus relief that would "direct[] the President to amend his financial disclosure report . . . for the purpose of specifically identifying any debts he owed during the [relevant] reporting period." Lovitky also sought declaratory relief.

The court ruled that Lovitky lacked standing to sue, because his requested relief wouldn't redress his claimed injuries. (The court didn't address whether he had a sufficient injury for standing purposes, because he lacked redressability.) As to mandamus, the court surveyed circuit law allowing mandamus against the president as to a ministerial duty, but, quoting the D.C. Circuit, noted that "[i]t is not entirely clear . . . whether, and to what extent, these decisions remain good law after [the Supreme Court's plurality opinion in Franklin v. Massachusetts]." Ultimately, the court said that because of this ambiguity it "would hesitate to issue mandamus even if Defendant's duty to specifically disclose personal liabilities were ministerial, but because the Court has found that it is a discretionary duty, the Court cannot do so."

As to declaratory relief, the court noted that it, too, wasn't obviously available against the president post Franklin. Regardless, the court said that because mandamus wasn't available, and because the Declaratory Judgment Act doesn't create an independent basis for jurisdiction, declaratory relief had no jurisdictional hook, and the court therefore lacked jurisdiction.

District Court Upholds Massachusetts's Assault Weapons Ban

Steven D. Schwinn, John Marshall Law School

Judge William G. Young (D. Mass.) last week rejected a Second Amendment challenge to Massachusetts's assault weapon ban. Judge Young held that covered rifles fell outside the Second Amendment and thus enjoyed no constitutional protection.

The case, Workman v. Healey, tested the state's ban on assault weapons and large-capacity magazines. The state ban was styled on the federal assault weapons ban, but, unlike Congress, the Massachusetts Legislature made the ban permanent. Plaintiffs sued in early 2017, arguing that the ban violated the Second Amendment.

The court disagreed. Judge Young wrote that the banned weapons fell outside the core of the Second Amendment and enjoyed no constitutional protection. He declined to apply any level of scrutiny and simply upheld the ban. The court explained:

Consequently, "Heller . . . presents us with a dispositive and relatively easy inquiry: Are the banned assault weapons and large-capacity magazines 'like' 'M-16 rifles,' i.e., 'weapons that are most useful in military service,' and thus outside the ambit of the Second Amendment?" The undisputed facts in this record convincingly demonstrate that the AR-15 and [large-capacity magazines] banned by the Act are "weapons that are most useful in military service." As a matter of law, these weapons and [large-capacity magazines] thus fall outside the scope of the Second Amendment and may be banned.

The court rejected the plaintiffs' argument that the AR-15 is a popular firearm, and therefore enjoys Second Amendment protection:

Yet the AR-15's present day popularity is not constitutionally material. This is because the words of our Constitution are not mutable. They mean the same today as they did 227 years ago when the Second Amendment was adopted. The test is not the AR-15's present day popularity but whether it is a weapon "most useful in military service."

Judge Young went on to quote Justice Scalia from Scalia Speaks.

The court also rejected the plaintiffs' claims that the ban is vague (because it doesn't define what "copies or duplicates" of assault weapons means) and that enforcement violated the Ex Post Facto Clause (because the state attorney general issued a notice that could punish existing ownership of banned weapons).