Constitutional Law Prof Blog

District Court Strikes Kansas's Documentary Proof of Citizenship Requirment to Vote

Steven D. Schwinn, John Marshall Law School

Judge Julie A. Robinson (D. Kansas) ruled yesterday that Kansas's requirement that motor-voter applicants provide proof of citizenship violated the National Voter Registration Act and the constitutional right to vote. In addition, Judge Robinson took Kansas Secretary of State Kris Kobach to task for his conduct over the course of the case, and imposed a remarkable sanction against him.

The ruling should end Kansas's documentary-proof-of-citizenship law, but we'll likely see an appeal (even if almost certainly futile, given the record).

The case tests Kansas's law that motor-voters show proof of citizenship when registering to vote against the NVRA's requirement that states automatically register voters when they apply for a driver's license--and its prohibition on states requiring more information than "necessary to . . . enable State election officials to assess the eligibility of that applicant and to administer voter registration and other parts of the election process." Judge Robinson previously issued a temporary injunction against Kansas's law, upheld by the Tenth Circuit.

As to NVRA preemption, the court applied the Tenth Circuit's rule on NVRA preemption. That rule says that the attestation requirement in Section 5 presumptively satisfies the minimum-information requirement for motor-voter registration. In order to rebut the presumption, the defendant has to show that "they cannot enforce their voter qualifications because a substantial number of noncitizens have successfully registered using the Federal Form" in order to adopt more strenuous information requirements.

The court said that Kobach simply didn't prove that a substantial number of noncitizens have successfully registered using the Federal Form, and that there wasn't another, less burdensome way to enforce the state's citizenship requirement:

Defendant was given the opportunity to retain experts and marshal evidence to meet his burden of demonstrating that "a substantial number of noncitizens have successfully registered to vote under the attestation requirement" in order to rebut the presumption that attestation meets the minimum-information requirement of Section 5 and that nothing less than DPOC is sufficient to meet his eligibility-assessment and registration duties under the NVRA. As described below, the Court finds that on the trial record Defendant has failed to make a sufficient showing on the first inquiry. Moreover, even if Defendant could demonstrate a substantial number of noncitizen registrations, he has not demonstrated that nothing less than the DPOC law is sufficient to enforce the State's citizenship eligibility requirement.

As to the right to vote, Judge Robinson weighed DPOC's benefits and burdens, distinguished the balance in Crawford v. Marion County, and ruled that DPOC violated the right to vote. "Instead, the DPOC law disproportionately impacts duly qualified registration applicants, while only nominally preventing noncitizen voter registration."

Finally, Judge Robinson found that Kobach engaged in a repeated "pattern and practice . . . of flaunting disclosure and discovery rules that are designed to prevent prejudice and surprise at trial." "[G]iven the repeated instances involved, and the fact that Defendant resisted the Court's rulings by continuing to try to introduce such evidence after exclusion, the Court finds that further sanctions are appropriate . . . ." The court ordered Kobach to attend six additional CLE hours (over and above the state's regular requirements), pertaining to federal or Kansas civil rules of procedure or evidence.

Third Circuit Upholds School Policy on Gender Identity Use of Facilities

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

In its opinion in Doe v. Boyertown Area School District a unanimous panel of the Third Circuit upheld the school district's gender policy for facilities, affirming the district judge, against a challenge by some students that the inclusive policy violated their constitutional "bodily privacy" rights and Title IX.

The school policy allowed "transgender students to use bathrooms and locker rooms that are consistent with the students’ gender identities as opposed to the sex they were determined to have at birth." The court rejected the argument of some non-transgender students that the policy violated their right to privacy. Even if the school policy were to be subject to strict scrutiny, there was a compelling interest in the protection of transgender students and the means chosen were narrowly tailored. In assessing the claim of the cisgendered students who challenged the school policy, the court stated:

we decline to recognize such an expansive constitutional right to privacy—a right that would be violated by the presence of students who do not share the same birth sex. Moreover, no court has ever done so. As counsel for the School District noted during oral argument, the appellants are claiming a very broad right of personal privacy in a space that is, by definition and common usage, just not that private. School locker rooms and restrooms are spaces where it is not only common to encounter others in various stages of undress, it is expected. The facilities exist so that students can attend to their personal biological and hygienic needs and change their clothing.

Moreover, the court rejected the challengers' reliance on "a case involving an adult stranger sneaking into a locker room to watch a fourteen year-old girl shower," noting that it was "simply not analogous to the present situation "involving transgender students using facilities aligned with their gender identities after seeking and receiving approval from trained school counselors and administrators."

The court likewise rejected the Title IX and state tort law claims, again affirming the district judge.

While the court discusses and relies upon Whitaker v. Kenosha Unified School District, in which the Seventh Circuit in 2017 affirmed a preliminary injunction requiring the school to allow transgender students to access facilities consistent with their gender identity, the policy upheld here was the Boyertown school district's affirmative policy allowing such access. Thus, there seems to be a clear path for school districts to avoid losing if there is litigation.

 

SCOTUS Dodges Partisan Gerrymandering Challenges in Gill and Benisek

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

In its opinion in Gill v. Whitford involving a challenge to Wisconsin's alleged partisan gerrymandering the Court, in an opinion by Chief Justice Roberts, with a concurring opinion by Justice Kagan (joined by Justices Ginsburg, Breyer, and Sotomayor), found that the plaintiffs did not prove sufficient Article III standing to sustain the relief granted in the divided decision by the three judge court.  Additionally, in a per curiam opinion in Benisek v. Lamone, involving a challenge to alleged political gerrymandering in Maryland, the Court declined to disturb the three judge court's decision not to grant to a preliminary injunction.

Chief Justice Roberts' opinion for the Court in Gill admits that

Over the past five decades this Court has been repeat­edly asked to decide what judicially enforceable limits, if any, the Constitution sets on the gerrymandering of voters along partisan lines. Our previous attempts at an answer have left few clear landmarks for addressing the question.

The  Chief Justice's Gill opinion does little, if anything, to remedy this lack of "landmarks" in the doctrine. However, the Chief Justice's opinion continues that the Court's "efforts to sort through those considerations have generated conflict­ing views both of how to conceive of the injury arising from partisan gerrymandering and of the appropriate role for the Federal Judiciary in remedying that injury" and it is this set of "conflicting views" that the Chief Justice's opinion sets out to resolve. The resolution seems simple: to the extent that plaintiffs' "alleged harm is the dilution of their votes" in violation of the Equal Protection Clause, "that injury is district specific." In sum, the injury must be an individual one that arises from an individual's vote being diluted by the voter's placement in a "cracked" or "packed" district.  The Chief Justice's opinion concludes that while the individual plaintiffs had "pleaded a particularized burden along such lines," they failed to prove those facts at trial.

Yet this simplicity is less straightforward when combined with Justice Kagan's concurring opinion, which correctly notes that in addition to the Equal Protection Clause claim of vote dilution, "at some points in this litigation, the plaintiffs complained of a different injury — an infringement of their First Amendment right of association." [Indeed, the opinion for the three judge court seems to combine the equal protection and First Amendment claims.] On the First Amendment claim, Kagan writes:

when the harm alleged is not district specific, the proof needed for standing should not be district specific either. And the associational injury flowing from a statewide partisan gerrymander, whether alleged by a party member or the party itself, has nothing to do with the packing or cracking of any single district’s lines. The complaint in such a case is instead that the gerrymander has burdened the ability of like-minded people across the State to affiliate in a political party and carry out that organization’s activities and objects. Because a plaintiff can have that complaint without living in a packed or cracked district, she need not show what the Court demands today for a vote dilution claim. Or said otherwise: Because on this alternative theory, the valued association and the injury to it are statewide, so too is the relevant standing requirement.

Moreover, even on the equal protection vote dilution claim, Kagan's opinion instructs that the Court's determination of remand rather than dismissal means that

the plaintiffs—both the four who initially made those assertions and any others (current or newly joined)—now can introduce evidence that their individual districts were packed or cracked. And if the plaintiffs’ more general charges have a basis in fact, that evidence may well be at hand. Recall that the plaintiffs here al­leged—and the District Court found —that a unified Republican government set out to ensure that Republicans would control as many State Assembly seats as possible over a decade (five consecutive election cycles). To that end, the gov­ernment allegedly packed and cracked Democrats throughout the State, not just in a particular district (see, e.g., Benisek v. Lamone) or region. Assuming that is true, the plaintiffs should have a mass of packing and cracking proof, which they can now also present in district-by-district form to support their standing. In other words, a plaintiff residing in each affected district can show, through an alternative map or other evidence, that packing or cracking indeed occurred there.

 [emphasis added].  The Court remanded and declined to "direct dismissal" given that this "is not the usual case" because the it "concerns an unsettled kind of claim," the "contours and justiciability of which are unresolved." Justice Thomas, joined by Justice Gorsuch, wrote separately to disagree with the remand, arguing there is "nothing unusual" about the case and that the matter should be dismissed.

In the five page per curiam opinion in Benisek v. Lamone, the Court declined to disturb the three judge court's denial of a motion for preliminary injunction. Seemingly without irony, the Court noted that one rationale for the three judge court's denial of a preliminary injunction was its concern about assessing the merits of the partisan gerrymandering claim and its prediction it would be "better equipped to make that legal determination and to chart a wise course" after the United States Supreme Court issued its decision in Gill. However, the per curiam opinion of the Court also reasoned that even if the plaintiffs were likely to succeed on the merits, the  other factors in a preliminary injunction decision including the balance of equities and the public interest "tilted against" the issuance of a preliminary injunction.

In sum, the decisions in Gill and Benisek leave the constitutionality of partisan gerrymandering as unsettled as before.

[image: "the gerrymander" via]

 

Maine Votes With, and For, Ranked Choice Voting

Steven D. Schwinn, John Marshall Law School

Maine became the first state this week to use ranked-choice-voting in a state-wide election. In addition to electing candidates in the primaries, Maine voters also voted in favor of a referendum favoring ranked-choice.

It may seem odd that voters both used ranked-choice and voted for it in the same election. (Wouldn't a vote for it usually precede a vote using it?) Here's why: The referendum was designed to undo legislation that postponed and repealed ranked-choice voting unless a constitutional amendment (allowing it) passed before December 1, 2021. The legislation, in turn, was enacted by legislative opponents of ranked-choice, who argued, among other things, that ranked-choice violated the state constitution.

That argument didn't come out of the blue. The state supreme court issued a non-binding advisory opinion earlier this year concluding that ranked-choice did, indeed, violate the state constitution. In short, the court said ranked-choice, with its multiple-rounds that might result in a candidate with a first-round plurality from losing the election (when there are three or more candidates), violated the state constitutional provisions that say that the winning candidate in an election is the person who receives a "plurality" of the vote. The court explained:

The Act, in contrast, provides for the tabulation of votes in rounds. Thus, the Act prevents the recognition of the winning candidate when the first plurality is identified. According to the terms of the Constitution, a candidate who receives a plurality of the votes would be declared the winner in that election. The Act, in contrast, would not declare the plurality candidate the winner of the election, but would require continued tabulation until a majority is achieved or all votes are exhausted. Accordingly, the Act is not simply another method of carrying out the Constitution's requirement of a plurality. In essence, the Act is inapplicable if there are only two candidates, and it is in direct conflict with the Constitution if there are more than two candidates.

The discrepancy between the Act and the Constitution is easily illustrated by the simplest of scenarios. If, after one round of counting, a candidate obtained a plurality of the votes but not a majority, that candidate would be declared the winner according to the Maine Constitution as it currently exists. According to the Act, however, that same candidate would not then be declared the winner.

Instead, the candidate, though already having obtained a plurality of the votes, would be subject to additional rounds of counting in which second, third, and fourth choices are accounted for and the lowest vote-garnering candidates are successively eliminated. Once those additional rounds are completed, a different candidate may be declared the winner--not because that second candidate obtained a plurality of the votes (which the first candidate had already obtained), but because that candidate obtained a majority of the votes after eliminating the other candidates by taking into account the second, third, and fourth place preferences, or because the ballots have been exhausted. In this way, the Act prevents the candidate obtaining a "plurality" from being named the winner unless and until multiple rounds of vote-counting have occurred.

(NB: The ruling is as interesting, or more, for its analysis of the court's power to issue advisory opinions in the context of Maine constitutional separation of powers.)

The ruling is merely advisory, however, and not binding. So there's no definitive say-so as to the constitutionality of ranked-choice voting in the state. Because the referendum removes the legislative barrier to ranked-choice in the absence of a constitutional amendment by December 2021, unless there's an actual and adversarial court case challenging ranked choice (and winning), we'll see it again in the next election, constitutional amendment or not.

Seventh Circuit Denies Motion for Quick Ruling on Nationwide Injunction in Sanctuary Cities Case

Steven D. Schwinn, John Marshall Law School

The Seventh Circuit this week denied the Justice Department's request to stay the nationwide injunction against the Department in Chicago's sanctuary cities case. The order says that the Seventh Circuit will wait until the Supreme Court rules in Trump v. Hawaii, the travel-ban case, before ruling on the issue.

Recall that a three-judge panel of the Seventh Circuit upheld a nationwide injunction issued by the district court against the Department enforcing two conditions imposed by the Attorney General on the DOJ-JAG/Byrne Grant program. DOJ filed a motion to stay the nationwide injunction pending appeal, and the full Seventh Circuit agreed to review the issue.

This latest round of jockeying came when DOJ sent a letter this week to the Seventh Circuit saying that if the Seventh Circuit didn't rule on its motion to stay the nationwide injunction by COB on June 18, DOJ would take it up with the Supreme Court. The Seventh Circuit interpreted the letter as a motion for an immediate ruling on DOJ's motion for a stay, and rejected it. The court said that it expected that the Supreme Court would have something to say about this in the travel-ban case, and it would await word from the high Court before ruling here.

The ruling makes it likely (or certain?) that DOJ will try to take this (the nationwide injunction) to the Supreme Court as early as Monday.

Zervos v. Trump: New York's Highest Court Refuses Appeal

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

On its own motion, the New York Court of Appeals (NY's highest court) dismissed the appeal by Donald Trump in Trump v. Zervos.

From its decision list, the court's entire "opinion" reads:

On the Court's own motion, appeal dismissed,without costs, upon the ground that the order appealed from does not finally determine the action within the meaning of the Constitution.

Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution.

Motion for a stay dismissed as academic.

Recall that in May, the appellate division in New York denied President Trump's motion for a stay, in a summary decision.  Recall that in March, the state trial judge ruled the lawsuit for defamation by Summer Zervos against now-President Trump could proceed, denying a motion to dismiss or to stay by Trump based on his presidential status. The trial judge decided that the holding of  the United States Supreme Court in its unanimous 1997 decision of Clinton v. Jones that then-President Clinton was subject to suit in federal court extended to state court.

Petitioning the United States Supreme Court for a stay would be the next step if the president wants to halt the defamation lawsuit against him for as long as he is president. Otherwise, the case will proceed including presumably discovery which would mean a deposition of the president.

 

 

SCOTUS Rules Minnesota's Restriction on Voters' Political Apparel Violates First Amendment

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

In its opinion in Minnesota Voters Alliance v. Mansky, the Court held that a provision of a Minnesota law regulating voters' political attire violates the First Amendment. Recall from our preview that  Minn. Stat. §211B.11, entitled "Soliciting near polling places," includes among its petty misdemeanor violations a prohibition of political attire: "A political badge, political button, or other political insignia may not be worn at or about the polling place on primary or election day." 

The Court's majority opinion, by Chief Justice Roberts, finds that the "polling place" on election day constitutes a nonpublic forum under the First Amendment; it is "government- controlled property set aside for the sole purpose of voting" and is a "special enclave, subject to greater restriction." The question as phrased by the Court was therefore whether "Minnesota’s ban on political apparel is 'reasonable in light of the purpose served by the forum': voting."  As in the oral argument, the Court considered the relevance of Burson v. Freeman (1992), in which the Court upheld a Tennessee statute which prohibited the solicitation of votes and the display or distribution of campaign materials within 100 feet of the entrance to a polling place.

Analogizing to Burson, the Court upheld Minnesota's objective in prohibiting voters from wearing particular kinds of expressive apparel or accessories while inside the polling place.

[W]e see no basis for rejecting Minnesota’s determination that some forms of advocacy should be excluded from the polling place, to set it aside as “an island of calm in which voters can peacefully contemplate their choices.” Brief for Respondents 43. Casting a vote is a weighty civic act, akin to a jury’s return of a verdict, or a representative’s vote on a piece of legislation. It is a time for choosing, not campaigning. The State may reasonably decide that the interior of the polling place should reflect that distinction.

However, the Court found that the Minnesota statute failed to satisfy the reasonable standard in the means chosen to achieve its goal: "the unmoored use of the term 'political' in the Minnesota law, combined with haphazard interpretations the State has provided in official guidance and representations to this Court, cause Minnesota’s restriction to fail even this forgiving test." The Court found "political" far too broad (citing dictionary definitions) and likewise found that "issue oriented material" was also too broad (" A rule whose fair enforcement requires an election judge to maintain a mental index of the platforms and positions of every candidate and party on the ballot is not reason- able. Candidates for statewide and federal office and major political parties can be expected to take positions on a wide array of subjects of local and national import.") 

However, the Court gestured toward acceptable means chosen:

That is not to say that Minnesota has set upon an impossible task. Other States have laws proscribing displays (including apparel) in more lucid terms. See, e.g., Cal. Elec. Code Ann. §319.5 (West Cum. Supp. 2018) (prohibiting “the visible display . . . of information that advocates for or against any candidate or measure,” including the “display of a candidate’s name, likeness, or logo,” the “display of a ballot measure’s number, title, subject, or logo,” and “[b]uttons, hats,” or “shirts” containing such information); Tex. Elec. Code Ann. §61.010(a) (West 2010) (prohibiting the wearing of “a badge, insignia, emblem, or other similar communicative device relating to a candidate, measure, or political party appearing on the ballot, or to the conduct of the election”). We do not suggest that such provisions set the outer limit of what a State may proscribe, and do not pass on the constitutionality of laws that are not before us. But we do hold that if a State wishes to set its polling places apart as areas free of partisan discord, it must employ a more discernible approach.

The appendix lists thirty-four states prohibiting accessories or apparel in the polling place.

Dissenting, Justice Sotomayor, joined by Justice Breyer, would have certified the issue of the interpretation of the statute to the Minnesota Supreme Court. The Court, in footnote 7, explained its decision not to certify, including that the request came "late in the day," but Sotomayor argued that "certification is not an argument subject to forfeiture by the parties" and is instead a matter of comity. Moreover, she contended that having an interpretation of the statute, including the term "political" (which she noted the Court had "little difficulty discerning its meaning in the context of [other] statutes subject to First Amendment challenges, citing cases), would "obviate the hypothetical line-drawing problems that form the basis of the Court’s decision today."

Thus, the import of Minnesota Voters Alliance v. Mansky is that states can prohibit certain expressive apparel and accessories at the polling place on election day, but the courts must find the statutory definitions sufficiently defined as to be "reasonable." 

District Court Lets Drone-Strike-List Case Move Forward

Steven D. Schwinn, John Marshall Law School

Judge Rosemary Collyer (D.D.C.) ruled yesterday that a journalist's due process claim against the government for including him on a drone-strike kill list can move forward. Judge Collyer ruled that the journalist had standing, and that his due process challenge did not present a non-justiciable political question.

The ruling in Zaidan v. Trump stands in contrast to other similar cases, and is a significant (though preliminary) victory for the plaintiff.

The case originally involved two journalists who challenged their inclusion on the government's drone-strike kill list. They lodged a series of challenges, including violation of the Administrative Procedure Act (because inclusion violated the government's criteria for inclusion, adopted under President Obama); violations of the EO banning assassinations, the Geneva Conventions, the International Covenant on Civil and Political Rights, and federal law; and violations of due process.

The government moved to dismiss the case for lack of standing and because it raised a non-justiciable political question. The court granted the motion in part and denied it in part.

The court ruled that one of the plaintiffs lacked standing, because he failed sufficiently to allege a harm. The court said that the other plaintiff demonstrated harm (and causation and redressability), but that claims based on the APA, the EO, the Geneva Conventions, the ICCPR, and related federal law all raised a political question. As to the APA claim, the court said that it had no judicially manageable standards for resolving it. The court said that the presidential guidance for inclusion on the kill list didn't provide sufficiently determinate standards for judicial review. (The more vague a government policy, the less likely a plaintiff can challenge it under the APA.) As to the other claims, the court merely said that "the process of determining whether Defendants exceeded their authority or violated any of the statutes referenced in the Complaint would require the Court to make a finding on the propriety of the alleged action, which is prohibited by the political question doctrine."

But as to the due process claim, the court concluded that there was no political-question-doctrine bar to moving forward. The court emphasized that the plaintiff's claim was against his inclusion on the kill list, and not that a drone strike was invalid (which might have raised a political question):

[The plaintiff] does not seek a ruling that a strike by the U.S. military was mistaken or improper. He seeks his birthright instead: a timely assertion of his due process rights under the Constitution to be heard before he might be included on the Kill List and his First Amendment rights to free speech before he might be targeted for lethal action due to his profession.

The ruling does not touch on the merits; it merely allows the due process portion of one plaintiff's case to move forward. Still, getting over the political question doctrine in a case like this is a significant victory for the plaintiff.

Check it Out: NYT on Campus Free Speech

Check out Jeremy Peters's piece in today's NYT, In the Name of Free Speech, States Crack Down on Campus Protests.

Second Circuit: Police Use of LRAD May Violate Fourteenth Amendment

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

In its unanimous opinion in Edrei v. Maguire (Bratton), a panel of the Second Circuit upheld the the denial of a motion to dismiss a complaint alleging excessive force under the Fourteenth Amendment's Due Process Clause by police officers using a LRAD - - - long-range acoustic device - - - during a protest. The defendants claimed both that the LRAD did not constitute excessive force and that they were entitled to qualified immunity because it had not been clearly established at the time of the 2014 protest that using a LRAD could be excessive force.

Chief Judge Robert Katzmann's opinion discussed LRAD, noting that the New York Police Department was using a "portable Model 100X, which also has loudspeaker and area denial functions."

The 100X’s product sheet boasts that it has a maximum volume of 136 decibels at one meter and the manufacturer guidelines caution not to use it within 10 to 20 meters of people. A diagram on the 100X’s control panel shows a red beam emanating from the front of the device and instructs: “DO NOT ENTER WITHIN 10 METERS DURING CONTINUOUS OPERATION.”

The plaintiffs, who were subjected to the LRAD during a protest in New York after "a Staten Island grand jury declined to indict the NYPD officer who placed Eric Garner, an unarmed black man, in a fatal chokehold." During the protest,

with no warning, NYPD officers discharged pepper spray. Several plaintiffs who had been watching the arrests began to flee. Seconds later the wail of a high‐pitched alarm began pulsing though the streets. The defendants had activated the LRAD’s area denial function. According to plaintiffs, they had not been ordered to disperse and no such order is audible on the video.

The plaintiffs reported physical injuries, including significant ear pain, prolonged migraines, vertigo, and ringing in the ears, and most sought medical treatment.

Judge Katzmann's opinion rejected the defendants' argument that the LRAD could not constitute "excessive force."  The opinion relied on the "shocks the conscience" test as it had been explained in the Second Circuit with regard to excessive force as considering several factors: “the need for the application of force, the relationship between the need and the amount of force that was used, the extent of the injury inflicted, and whether the force was . . . [inflicted] maliciously or sadistically.”  The court held that this Second Circuit precedent was not changed by Kingsley v. Hendrickson, 135 S. Ct. 2466 (2015), decided after the 2014 protest. Moreover, applying the standard to the allegations, the security threat was low, the proportionality of the force used was "stark," there were significant injuries, and there are no allegations that the police officers attempted to temper their use of force.

The court also rejected the police officers' claim to qualified immunity. The defendants argued that it was not clearly established at the time of the 2014 protest that "using force in crowd control violates due process."

But that is like saying police officers who run over people crossing the street illegally can claim immunity simply because we have never addressed a Fourteenth Amendment claim involving jaywalkers. This would convert the fair notice requirement into a presumption against the existence of basic constitutional rights. Qualified immunity doctrine is not so stingy.

Additionally, the court discussed the protestors First Amendment rights and stated that "Were this not enough, a wealth of cases inform government officials that protesters enjoy robust constitutional protections."

The court did stress that the opinion was a "narrow" one.  As an interlocutory appeal from the denial of a motion to dismiss, this is expected. Nevertheless, the opinion is certainly a victory for the plaintiffs in their due process challenge to the use of LRAD.

[image: LRAD 500 x in NYC during 2011 via]

 

Maine to use Ranked Choice Voting in Tuesday's Primaries

Maine will become the first state to use ranked-choice voting in a state-wide election in its Tuesday primaries. Maine's Secretary of State has a resource page here, including sample ballots, FAQs, and even an entertaining video explaining how it'll work. Check it out!

The move to ranked-choice voting in the state isn't uncontroversial, as reported earlier this spring in The Atlantic. But results from other jurisdictions within the U.S., and from other countries (that have much richer experiences using ranked-choice or some form of instant-run-off voting), are promising.

The States' Response to Justice's Filing in the Obamacare Case

Steven D. Schwinn, John Marshall Law School

Sixteen states plus the District of Columbia responded this week to the Justice Department's brief in the Texas Obamacare challenge. The intervenor-defendants argue that (1) the individual mandate remains within congressional authority under its taxing power (even post Tax Cuts and Jobs Act, which set the tax-penalty at $0), (2) if the individual mandate is unconstitutional, the remedy is to strike that portion of the TCJA setting the tax-penalty at $0 and reinstate the original tax amount (to save it), and (3) even if it's unconstitutional, the rest of the ACA is severable (and thus savable). The states also argue that the plaintiffs lack standing, because they can't be harmed by a $0 tax.

Here's the gist:

First, Plaintiffs are unlikely to prevail on the merits. Continuous production of revenues is not a constitutional requirement for a tax, and the minimum coverage requirement will continue to produce revenue for years to come. If the Court nevertheless concludes that the minimum coverage requirement will become unconstitutional once it ceases to generate revenue, under long-standing and controlling Supreme Court precedent, the proper remedy is to strike the unconstitutional amendment and revert back to hte prior statutory provision which was upheld in NFIB.

If the Court reaches the severability question, it should sever the unconstitutional provision and leave the remainder of the ACA intact, as the Supreme Court has done in almost every case over the past century. The touchstone for any decision about remedy is legislative intent, which a court cannot use its remedial powers to circumvent. Here, the Congress that passed the TCJA expressly and intentionally left the rest of the ACA untouched. Striking down the entire ACA would disregard that intent and impose an outcome that Congress chose not to achieve through the legislative process. Even if the severability inquiry turned on the intent of the Congress that enacted the ACA (and it does not), Plaintiffs have not come close to demonstrating that it is "evident" that Congress would have wished for the entire ACA to be struck down just because a later Congress reduced the tax for not maintaining health insurance to $0.

Check it Out: Samuel and Litman Take on Justice's Filing in Obamacare Case

Check out Ian Samuel and Leah Litman's colorful piece over at Take Care, where they rip into the government's argument against Obamacare in its recent filing in the Texas case.

Among other things, they show why the government's severability argument doesn't hold up:

The premise of DOJ's argument . . . is that Congress repealed the mandate as it was enacted (by repealing the tax penalty for not complying with it). Yet its premise in part (B) is that the mandate is not severable from other provisions; in other words, that without the mandate, Congress would not have wanted the guarantee issue and community rating provisions. But we know the opposite is true: Congress repealed the mandate, but kept the guarantee issue and community rating provisions. There is no need to speculate what Congress might have wanted.

Government Seeks to Strike Key Provisions of Obamacare

Steven D. Schwinn, John Marshall Law School

The federal government argued yesterday in the Texas Obamacare case that (1) Obamacare's individual mandate is now unconstitutional and (2) therefore the Obamacare pre-existing-conditions ("guaranteed issue") and "community rating" provisions must fall.

The filing (by the federal government as defendant in the case) is an unusual instance of the Justice Department refusing to defend a federal law in court. (Some states, led by California, have moved to intervene to defend the law.)

The filing is also notable for its attempt to pick off just three provisions of Obamacare--the individual mandate, the ban on pre-existing-conditions discrimination, and the community rating provision--while keeping the rest of the Act intact. (This contrasts with the plaintiffs' approach, which seeks to strike all of Obamacare. In this way, the federal government's position--as sweeping as it is--is nevertheless more modest than the position of Texas and the other plaintiffs in the case.)

Here's a summary of the federal government's argument:

1. The individual mandate as it stands effective January 2019 is unconstitutional. That's because Congress, in the Tax Cuts and Jobs Act, enacted earlier this year, eliminated the tax-penalty for not having health insurance beginning in January 2019. Without the tax-penalty, the individual mandate no longer can raise revenue for the federal government. If it can't raise revenue, it can't fall within Congress's power to tax. And, as the Court ruled in NFIB, it also can't fall within Congress's power to regulate interstate commerce. Therefore, the individual mandate, as it will read in January 2019, is unsupported by congressional authority, and is unconstitutional.

2. The requirements that health insurers accept individuals with pre-existing conditions (or the prohibition on discrimination by pre-existing conditions, the "guaranteed issue" provision) and that insurers charge rates within a particular range for a particular community (the "community rating" provision) are inseverable from the individual mandate. (This is the position that the federal government also took in defending the individual mandate in NFIB.) Here's why: Congress has authority under the Commerce Clause to prohibit discrimination and regulate insurance rates. But if Congress only enacted those provisions, without an individual mandate, rates would go through the roof. The only way to keep rates affordable is to require everybody (including people who are healthy now) to get into the insurance pool. That's the individual mandate. Thus, the individual mandate and the other two requirements go hand-in-hand in achieving Congress's goal under the ACA of keeping rates affordable. (The federal government also had a standing argument for why it's only challenging these two provisions: the individual plaintiffs in the case only alleged harms related to these two provisions, and not to the rest of Obamacare.)

3. Because the guaranteed-issue and community-rating provisions are inseverable from the unconstitutional individual mandate, they, too, must fall. But other key portions of Obamacare--including provisions "concerning various insurance regulations, health insurance exchanges and associated subsidies, the employer mandate and Medicaid expansion, and reduced federal healthcare reimbursement rates for hospitals"--are severable, and therefore can remain in place.

It's not clear from the filing whether and how this argument might affect other portions of Obamacare not mentioned, most notably the requirement that insurers allow parents to keep their children on their insurance until age 26.

The government opposed the plaintiffs' request for a preliminary injunction and instead argued that the court should issue declaratory relief, at least until January 2019.

District Court Rules for Philly in Sanctuary Cities Case

Steven D. Schwinn, John Marshall Law School

Senior Judge Michael M. Baylson (E.D. Pa.) ruled in favor of Philadelphia yesterday in its sanctuary-cities case against the Trump Administration. The court held that the three immigration-enforcement conditions that Attorney General Jeff Sessions imposed on sanctuary cities as conditions of receipt of federal DOJ JAG grants violated federal law and the Constitution.

The ruling goes farther than the Seventh Circuit case also striking the conditions, in that Judge Baylson also ruled Section 1373 unconstitutional. Notably, that portion of the court's decision was based on the Supreme Court's recent ruling in Murphy v. NCAA.

Philadelphia challenged the three conditions that AG Sessions unilaterally imposed on sanctuary cities in exchange for federal JAG grant money--(1) the requirement that local jurisdictions provide ICE officials access to local prisons, (2) the requirement that local jurisdictions notify ICE when they release aliens from local prisons, and (3) the requirement that local jurisdictions certify compliance with 8 U.S.C. Sec. 1373. (1373 says that a local government can't restrict its officers from communicating with ICE about the citizenship or immigration status of a person.)

The court held that the first two conditions amounted to ultra vires conduct not authorized by Congress and violated the separation of powers and the Spending Clause (similar to the Seventh Circuit ruling). The court also held that these conditions were arbitrary and capricious under the Administration Procedure Act (because the government failed to support the putative public-safety reasons for the conditions).

The court went on to strike Section 1373 under the Court's approach in Murphy:

8 U.S.C. Secs. 1373(a) and 1373(b) by their plain terms prevent "Federal, State, or local government entit[ies] or official[s] from" engaging in certain activities. These provisions closely parallel the anti-authorization condition in [the Professional and Amateur Sports Protection Act] which was at issue in Murphy. Specifically, the PASPA provision violated the Tenth Amendment because it "unequivocally dictates what a state legislature may and may not do." Sections 1373(a) and (b) do the same, by prohibiting certain conduct of government entities or officials.

The court said that AG Sessions couldn't condition the receipt of federal funds on compliance with an unconstitutional provision like Section 1373, so the third condition, like the first and second, was also invalid.

Federal Judge Allows Complaint Against ICE's Parent-Child Separation Policy

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

In his Order in L. v. United States Immigration and Customs Enforcement (ICE), Southern District of California United States District Judge Dana Sabraw denied the government's motion to dismiss the constitutional claim challenging ICE's separation of plaintiff parents and children at the border.

Judge Sabraw first found that the complaint was not moot because the government defendants "have not shown that Ms. L. was released from detention and reunited with her daughter for reasons other than this litigation," and thus "the voluntary cessation exception applies to this case."

In considering whether the complaint's allegations of a denial of due process under the Fifth Amendment should be dismissed, Judge Sabraw discussed the bedrock principles that the Constitution applies to non-citizens within the United States and that the Due Process Clause includes a "right to family integrity or to familial association." Judge Sabraw distinguished other cases in the immigration context finding that here the plaintiffs were detained with their children:

Here, the Court is faced with Plaintiffs who present different circumstances, but each Plaintiff has demonstrated that the right to family integrity encompasses her particular situation. According to the allegations in the Amended Complaint, Ms. L. did everything right. She and her child presented at the port of entry and requested asylum. She passed a credible fear screening interview, was taken out of expedited removal proceedings, and placed in removal proceedings before an IJ to pursue her asylum claim. Ms. C., by contrast, did not do everything right. She committed a crime by entering the United States illegally, and was prosecuted and imprisoned for her transgression: 25 days in custody for misdemeanor violation of 8 U.S.C. § 1325 (illegal entry). However, having served her sentence, Ms. C. was then returned to ICE detention to pursue her asylum claim, as she too had passed a credible fear screening. Ms. C., therefore, is on equal footing with Ms. L. for purposes of pursuing her due process claim. Ms. L.’s claim is based on the initial separation from her child, while Ms. C.’s claim is based on the continued separation from her child. Both claims focus on government conduct in separating families during removal proceedings.

Judge Sabraw applied the "shocks the conscience" test for due process and elaborated that due process protects against "governmental conduct that violates the “decencies of civilized conduct," interferes with rights “‘implicit in the concept of ordered liberty," and is so “‘brutal’ and ‘offensive’ that it [does] not comport with traditional ideas of fair play and decency"(citing cases).

Judge Sabraw recounted the allegations of trauma for both parents and children, and concluded:

These allegations call sharply into question the separations of Plaintiffs from their minor children. This is especially so because Plaintiffs allegedly came to the United States seeking shelter from persecution in their home countries, and are seeking asylum here. For Plaintiffs, the government actors responsible for the “care and custody” of migrant children have, in fact, become their persecutors. This is even more problematic given Plaintiffs’ allegations and assertions that there is a government practice, and possibly a forthcoming policy, to separate parents from their minor children in an effort to deter others from coming to the United States. This alleged practice is being implemented even when parents like Ms. L. and Ms. C. have passed credible fear interviews, and therefore, are positioned to present asylum claims meriting consideration by an IJ in their removal proceedings. These allegations sufficiently describe government conduct that arbitrarily tears at the sacred bond between parent and child, and is emblematic of the “exercise of power without any reasonable justification in the service of an otherwise legitimate governmental objective[.]” [citation omitted] Such conduct, if true, as it is assumed to be on the present motion, is brutal, offensive, and fails to comport with traditional notions of fair play and decency. At a minimum, the facts alleged are sufficient to show the government conduct at issue “shocks the conscience” and violates Plaintiffs’ constitutional right to family integrity. Accordingly, Defendants’ motion to dismiss Plaintiffs’ due process claim is denied.

Judge Sabraw did dismiss the counts alleging a violation of the Administrative Procedure Act (finding "Plaintiffs have failed to allege facts sufficient to show “final agency action” subject to review under the APA") and a violation of the Asylum Act (finding no authority for a private right of action). 

But the claim for a Due Process Clause violation will proceed as the United States government seems to arguing family separation is a permanent policy.

[image: "Cloak of Conscience" by Anna Chromy, via]

 

Check it out: Winkler on Masterpiece Cakeshop and Corporate Religious Rights

Check out Adam Winkler's piece on Masterpiece Cakeshop over at Slate. Winkler argues that the case may not be so narrow, after all--but for a different reason: it may (his emphasis) "enable future businesses to assert that they too have been victims of religious discrimination." (You might ask, didn't this already happen in Hobby Lobby? Answer: No, that case was statutory (RFRA), not constitutional.)

Check it Out: Law Profs Respond to Trump Attorneys: Yes, the President is Subject to Law

Check out the response to President Trump's attorneys by a group of prominent ConLawProfs, organized by Protect Democracy. (We posted on President Trump's attorneys' letter here.) Their conclusion:

The Office of the President is not a get out of jail free card for lawless behavior. Indeed, our country's Founders made it clear in the Declaration of Independence that they did not believe that even a king had such powers; they specifically cited King George's obstruction of justice as among the "injuries and usurpations" that justified independence. Our Founders would not have created--and did not create--a Constitution that would permit the President to use his powers to violate the laws for corrupt and self-interested reasons.

In sum, both Article II and the criminal laws of this country forbid the president from engaging in corrupt and self-dealing conduct, even when exercising Article II powers to execute the laws.

SCOTUS Finds Colorado Civil Rights Commission Hostile to Religion in Masterpiece Cakeshop

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

In its opinion today authored by Justice Kennedy in Masterpiece Cakeshop Ltd. v. Colorado Civil Rights Commission, the Court found that the cakeshop owner's First Amendment Free Exercise Clause right was infringed upon by the Colorado Civil Rights Commission. Recall that the Civil Rights Commission had found the cakemaker violated the state equal accommodations statute protection on the basis of sexual orientation when the cakemaker refused to be employed for a same-sex wedding cake.

Justice Kennedy's opinion decides the controversy on the basis of Church of Lukumi Babalu Aye, Inc. v. Hialeah (1993), in which the Court found that the City of Hialeah's prohibition of killing animals was aimed at the religion of Santeria, especially given the numerous exceptions in the ordinance. Here, Kennedy's opinion for the Court rejects the ALJ's conclusion that the Colorado anti-discrimination statute was a neutral law of general applicability (and thus should be evaluated under a rational basis test), finding instead that the Colorado Civil Rights Commission in its adjudication of this case was not neutral but expressed hostility:  "The Civil Rights Commission’s treatment of his case has some elements of a clear and impermissible hostility toward the sincere religious beliefs that motivated his [the cakemaker's] objection."

These expressions of hostility surfaced in the oral argument as we noted in a specific statement from Kennedy  quoting one of the civil rights commissioners ( "freedom of religion used to justify discrimination is a despicable piece of rhetoric") which Kennedy asked counsel to disavow. This foreshadowed the opinion's quotation of the commissioner  "Freedom of religion and religion has been used to justify all kinds of discrimination throughout history, whether it be slavery, whether it be the holocaust, whether it be—I mean, we—we can list hundreds of situations where freedom of religion has been used to justify discrimination. And to me it is one of the most despicable pieces of rhetoric that people can use to—to use their religion to hurt others.”

The opinion then stated:

To describe a man’s faith as “one of the most despicable pieces of rhetoric that people can use” is to disparage his religion in at least two distinct ways: by describing it as despicable, and also by characterizing it as merely rhetorical—something insubstantial and even insincere. The commissioner even went so far as to compare [cakemaker] Phillips’ invocation of his sincerely held religious beliefs to defenses of slavery and the Holocaust. This sentiment is inappropriate for a Commission charged with the solemn responsibility of fair and neutral enforcement of Colorado’s anti- discrimination law—a law that protects discrimination on the basis of religion as well as sexual orientation.

With the decision based on this, the Court admittedly sidesteps the more contentious issues and widespread issues of the case:

The outcome of cases like this in other circumstances must await further elaboration in the courts, all in the context of recognizing that these disputes must be resolved with tolerance, without undue disrespect to sincere religious beliefs, and without subjecting gay persons to indignities when they seek goods and services in an open market.

Perhaps another limiting factor is that the Court observes that the cakebaker's refusal occurred before Obergefell v. Hodges (2015) when Colorado law did not authorize same-sex marriages. However, the Court also pointed to language in Obergefell that religious objections to same-sex marriage are protected by the First Amendment.

Yet there is also the issue of arguably inconsistent rulings from the civil rights commission.

Justice Kagan, in a brief concurring opinion joined by Justice Breyer, stressed the fault found with the Civil Rights Commission that did not give the cakemaker's religious views “neutral and respectful consideration.” She argued that any "inconsistent" rulings could be explained: the cakemakers in other cases objected to placing words on the cakes that they found offensive; in Masterpiece, the cakemaker objected to the customers who were purchasing sentiments he would provide for others.

In dissent, Justice Ginsburg, joined by Justice Sotomayor, concluded that there was not sufficient evidence of "hostility" neither in the arguably inconsistent rulings nor in the statements.  As to the statements,

Whatever one may think of the statements in historical context, I see no reason why the comments of one or two Commissioners should be taken to overcome Phillips’ refusal to sell a wedding cake to Craig and Mullins. The proceedings involved several layers of independent decisionmaking, of which the Commission was but one.

First, the Division had to find probable cause that Phillips violated CADA. Second, the ALJ entertained the parties’ cross-motions for summary judgment. Third, the Commission heard Phillips’ appeal. Fourth, after the Commission’s ruling, the Colorado Court of Appeals considered the case de novo. What prejudice infected the determinations of the adjudicators in the case before and after the Commission?

For Ginsburg, then, this was "far removed from the only precedent upon which the Court relies, Church of Lukumi Babalu Aye, Inc. v. Hialeah (1993), where the government action that violated a principle of religious neutrality implicated a sole decisionmaking body, the city council."

Certainly, the Court's opinion rests on narrow grounds, perhaps unique to this case. But it nevertheless represents the Court chipping away at equality on the basis of sexual orientation.

 

 

 

 

Trump Lawyers Claim Breathtaking Power, Privilege in Mueller Investigation

Steven D. Schwinn, John Marshall Law School

The New York Times released a memo penned by Trump lawyers to Special Counsel Robert Mueller earlier this year outlining their theory of executive power and privilege in relationship to Mueller's investigation.

The memo is only the analysis of President Trump''s lawyers. It's not the law. Getting a judicial decision on these issues would require this extraordinary sequence: (1) Mueller to subpoena President Trump to testify, (2) President Trump to decline, and (3) Mueller to attempt to enforce the subpoena in court.

The memo contains a number of eye-popping claims, highlighted by the Times in its analysis. Here are two broad, even breathtaking, constitutional positions in the memo:

1.    The President, by definition, cannot commit obstruction (or even any other federal crime). The memo says that the President, as chief executive, cannot constitutionally commit obstruction of a federal investigation:

It remains our position that the President's actions here, by virtue of his position as the chief law enforcement officer, could neither constitutionally nor legally constitute obstruction because that would amount to him obstructing himself, and that he could, if he wished, terminate the inquiry, or even exercise his power to pardon if he so desired.

The language seems to justify absolute presidential immunity for two different reasons, (1) because prosecution would amount to the president obstructing himself, and (2) because he could terminate the inquiry or issue pardons (presumably even pardon himself). The second reason sweeps beyond obstruction charges and suggests that the President, by definition, cannot violate any federal law, recalling President Nixon's infamous claim that "when the President does it, that means that it is not illegal."

2. The President is protected against an interview with Mueller by executive privilege. Citing In re Sealed Case (the Espy case), the memo concludes that President Trump is protected by executive privilege, because Mueller already has enough information to answer the questions he's investigating:

The records and testimony we have, pursuant to the President's directive, already voluntarily provided to your office allow you to delve into the conversations and actions that occurred in a significant and exhaustive manner, including but not limited to the testimony of the President's interlocutors themselves. In light of these voluntary offerings, your office clearly lacks the requisite need to personally interview the President.

Notably, the memo does not offer a specific reason for the privilege beyond the President's general need for frank and candid advice from advisers. Instead, it takes the tack that Mueller already has the information he needs, and that he hasn't demonstrated a need to interview the President himself. But this conclusion rests on the many and highly questionable assumptions and conclusions in the rest of the memo, in particular, that the President can't obstruct justice, that he didn't intend to, anyway, and that there was no collusion with Russia.

It also assumes, of course, that Mueller actually has all the information he needs about President Trump's involvement.