Constitutional Law Prof Blog

President Issues Sweeping Signing Statement on Defense Authorization Act

Steven D. Schwinn, John Marshall Law School

President Trump late yesterday issued a breathtaking constitutional signing statement on the John S. McCain National Defense Authorization Act for Fiscal Year 2019. The President called out dozens of provisions for impinging on the commander-in-chief authority, the foreign affairs authority, the appointments authority, executive privilege, and the President's authority to recommend legislation.

Perhaps most alarming, the President identified 18 separate sections that require public disclosure or reports to Congress on various topics as categorically "protected by executive privilege."

My Administration will treat these provisions consistent with the President's constitutional authority to withhold information, the disclosure of which could impair national security, foreign relations, law enforcement, or the performance of the President's constitutional duties.

The move pits the President's inherent Article II powers against Congress's powers to appropriate funds, its war powers and powers over the military, its foreign-relations powers, and its oversight authority (to say nothing of any interest or right that the people have in knowing what their government is up to). But unless Congress is willing to push back (for example, by issuing and enforcing subpoenas for reports required by the Act, but over which the President has claimed a categorical "executive privilege"), or unless a person or group has standing to challenge any of the President's rejection of funding restrictions or requirements or appointments matters, these claims will never see the inside of a courtroom.

If not, then the President will have effectively line-item vetoed a whopping 50 or more provisions of a single Act of Congress, with no check.

Ninth Circuit: Complaint Challenging Destruction of Photographs at Border Can Proceed

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

In its opinion in Askins v. United States Department of Homeland Security, a panel of the Ninth Circuit vacated a district judge's dismissal of a complaint alleging the confiscation and destruction of photographs by United States Customs and Border Protection (CBP) violated the First Amendment

One issue on appeal was whether the district judge incorrectly applied the "law of the case" doctrine to the amended complaint. The Ninth Circuit held the trial judge was wrong and should have evaluated the amended complaint on its own merits.

The First Amendment issue was whether the complaint stated a claim that the CBP's policies prohibiting photography even in public places was a First Amendment violation. Writing for the court, Judge Jay Bybee noted that the trial judge assumed that the areas adjacent to the ports of entry at these specific southern borders — Calexico West and San Ysidiro — were public fora and the CBP's restrictions were content based. The trial judge found that the CBP policies survived strict scrutiny because of the compelling interest of border security and in a "conclusory fashion" determined that the policies were the least restrictive means of serving the interests. The Ninth Circuit's opinion disagreed:

These conclusions are too thin to justify judgment for the government on a motion to dismiss. * * * * Without question, protecting our territorial integrity is a compelling interest that could justify reasonable restrictions on speech activities at ports of entry. * * * * But the devil lies in the details: “Even at the border, we have rejected an ‘anything goes’ approach.” United States v. Cotterman, 709 F.3d 952, 957 (9th Cir. 2013) (en banc). It is the government’s burden to prove that these specific restrictions are the least restrictive means available to further its compelling interest. They cannot do so through general assertions of national security, particularly where plaintiffs have alleged that CBP is restricting First Amendment activities in traditional public fora such as streets and sidewalks.

The Ninth Circuit did, however, stress that it was not deciding that the places at issue were in fact public fora. This should be a fact-based analysis.  Yet the court in a footnote also noted that it was unclear why the CBP applied its guidelines for the press to these plaintiffs:

We are puzzled as to how these guidelines apply to members of the public, whether media or not, who take photographs outside of port of entry facilities from streets and sidewalks accessible to the general public, whether those streets and sidewalks are on or off the port of entry. On their face, the policies would not appear to apply to plaintiffs at all, much less sanction the detention of plaintiffs and the destruction of their photographs under the circumstances alleged.

As the case returns to the district judge, questions of specific geography regarding public places near border entries is sure to figure prominently.

 

Judge Rebuffs Challenge to Special Counsel in Russian Interference Case

Steven D. Schwinn, John Marshall Law School

Judge Dabney L. Friedrich (D.D.C.) today rejected challenges to Special Counsel Robert Mueller's office and authority by a defendant in the criminal case against thirteen Russian individuals and three corporations. The ruling in U.S. v. Concord Management says that the special counsel office is constitutional and that Special Counsel Mueller was acting within his authority in bringing this case. The ruling allows the case to go on.

We posted on another rejection to the special counsel just 11 days ago, here.

The court first ruled that the special counsel is an "inferior" office under the Appointments Clause and was validly appointed by the Acting AG. The court said that different features of the office pointed in both the "principal officer" and "inferior officer" direction under Edmond, but ultimately the revocability of DOJ's special counsel regulations mean that the office is "inferior":

The regulations' revocability is "[t]he crucial difference" between the Special Counsel regulations and a statute that seeks to bind the executive branch from without, and it is this different that ensures the Special Counsel is an inferior officer. That is, to the extent that the regulations threaten to impair the Acting Attorney General's ability to direct and supervise the Special Counsel, the Department of Justice may simply rescind or revise the regulations at any time. This ability to rescind or revise the regulations as needed means that the Special Counsel is subject to the Acting Attorney General's plenary supervision. It also makes the Special Counsel effectively removable at will: if the for-cause provision stands in the way, the Acting Attorney General need only rescind or revise the regulation in order to remove the Special Counsel.

The court also ruled that the special counsel was an "inferior office" under Morrison v. Olson.

The court went on to say that the office didn't violate the separation of powers. In particular, the court ruled that even if the special counsel regulations are nonbinding on the special counsel (as Concord argued), then "the Special Counsel would be subject to the Acting Attorney General's plenary control by statute. Because executive power would remain wholly within the executive branch, no separation-of-powers problem would arise." Moreover, the court said that the AG had plenty of statutory authority to issue the special counsel regs.

Finally, the court said that Special Counsel Mueller wasn't acting outside of his appointment authority in bringing this particular case.

Federal Judge Orders Return of Mother and Daughter Being Deported

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

In a terse written Order in Grace v. Sessions, United States District Judge for the District of Columbia, Emmet Sullivan reiterated his oral order  "requiring the Defendants to return “Carmen” and her daughter to the United States FORTHWITH" (emphasis in original).  Judge Sullivan's Order recounted that at the emergency hearing on August 8, "Defendants stated that they would not consent to staying the removal past 11:59 pm Thursday August 9, 2018, but specifically represented to the Court that “Carmen” and her daughter would not be removed prior to that time." The judge therefore set a hearing for 1:00pm on Thursday, during which it was learned that Carmen and her daughter were being removed from the country by plane. The Judge's Order concluded:

it is

HEREBY ORDERED that the Defendants shall return “Carmen” and her daughter to the United States FORTHWITH; and it is

FURTHER ORDERED that in the event that the Defendants do not fully comply with this Order, Defendants Attorney General Jefferson Sessions, III; Secretary of the Department of Homeland Security Kirstjen M. Nielsen; U.S. Citizenship and Immigration Service Director Lee Francis Cissna; and Executive Office of Immigration Review Director James McHenry, preferably accompanied by their attorneys, shall be ORDERED to appear in Court to SHOW CAUSE why they should not be held in CONTEMPT OF COURT; and it is

FURTHER ORDERED that the Defendants shall file a status report on the docket in this case by no later than 5:00 pm August 10, 2018, informing the Court of the Defendants’ compliance with this Order.

SO ORDERED.

[emphasis in original].

The complaint in the case challenges expanded "expedited removal" for asylum seekers whose claims are based on gang violence or domestic violence, with statutory claims for relief augmented by separation of powers arguments and a constitutional claim of violation of due process.

Check it Out: Huq on Kavanaugh and Originalism

Check out Aziz Huq's (U. Chicago) piece in PoliticoMagazine, Why You Shouldn't Care Whether Kavanaugh Is an "Originalist." Answer: The label has lost all but lost its meaning in public (non-scholarly) debates, and it just can't help us understand Judge Kavanaugh's approach.

Liberals and conservatives alike can do better [than focusing only on whether Judge Kavanaugh is an "originalist"]. The test of a judge's mettle is not whether they are an "originalist." That term just isn't as illuminating as many think. All judges, whether liberal or conservative, account for the Constitution's original understanding at times. All also rely on other sources of law. Even as legal scholars have refined precise definitions of originalism, the heat of partisan debate has reduced the term in public life into little more than code for substantive positions on abortion, gun control and the like.

Check it Out: Baude on Madison's Constitutional Liquidation

Check out William Baude's (U. Chicago) piece Constitutional Liquidation, forthcoming in the Stanford Law Review. Baude explores James Madison's idea that the Constitution's meaning could be "liquidated" and settled by practice. From the abstract:

Constitutional liquidation has three key elements. First, there had to be a textual indeterminacy. . . . Second, there had to be a course of deliberate practice. This required repeated decisions that reflected constitutional reasoning. Third, that course of practice had to result in a constitutional settlement. This settlement was marked by two related ideas: acquiescence by the dissenting side, and "the public sanction"--a real or imputed popular ratification.

Baude says that liquidation "provides a structured way for understanding . . . departmentalism," "could provide a salutary improvement over the modern doctrine of stare decisis," "is consistent with the core arguments for adhering to tradition," and "is less susceptible to some of the key criticisms against the more capacious use of historical practice."

D.C. Circuit Validates Forever-War

Steven D. Schwinn, John Marshall Law School

The D.C. Circuit yesterday rejected a habeas claim by a long-time (17 years) Guantanamo detainee who argued that the basis for his detention has "unraveled" and that the conflict that originally authorized his detention has ended. In so ruling, the court affirmed that the 2001 AUMF, along with the 2012 National Defense Authorization Act, remain in force, strong as ever, and continue to authorize his detention.

The claimant, a Yemeni who, according to the government, trained with and fought alongside the Taliban, filed an earlier habeas petition in 2005. The courts rejected that petition, concluding that "the Government's account of Al-Alwi'd Taliban-related activities was supported by a preponderance of the evidence, thereby making Al-Alwi an enemy combatant who could lawfully be detained."

This time, however, he claimed that even if his earlier detention was authorized, the authority for his ongoing detention is stale. The court rejected that argument.

The court ruled first that the "[a]uthority to detain has not unraveled." It said that the AUMF retains its original force so long as "hostilities between the United States and the Taliban and al Qaeda continue." "Both [the AUMF and the National Defense Authorization Act] authorize detention until the end of hostilities. Although hostilities have been ongoing for a considerable amount of time, they have not ended."

The court ruled next that "[a]uthority to detain has not expired." The court said that "termination" is "a political act," and that it hasn't yet occurred. "The Executive Branch represents that armed hostilities between the United States forces and those entities persist."

The ruling underscores that the AUMF will remain in full force until the political branches say that hostilities have ended.

Ninth Circuit Says Cross Border Shooting Case Can Go Forward

Steven D. Schwinn, John Marshall Law School

The Ninth Circuit ruled yesterday in Rodriguez v. Swartz that a case against a U.S. Border Patrol agent for shooting and killing a Mexican youth across the U.S.-Mexican border can go forward. The court denied qualified immunity for the agent and ruled that the plaintiff had a valid Bivens claim.

This case is yet another cross-border shooting case, different than Hernandez v. Mesa. Recall that the Court remanded that case for further proceedings on the Bivens question. The Fifth Circuit held that Bivens did not provide a remedy in that case, because the case raised a new Bivens context, and because "extending Bivens would interfere with the political branches' oversight of national security and foreign affairs"; "would flout Congress's consistent and explicit refusals to provide damage remedies for aliens injured abroad"; and "would create a remedy with uncertain limits."

The Ninth Circuit ruling thus splits with the Fifth Circuit.

Rodriguez arose when a Border Patrol agent shot and killed a Mexican youth across the border for no apparent reason whatsoever, and without knowing the youth's nationality. The youth's representatives sued under Bivens.

The Ninth Circuit first denied qualified immunity to the agent. The court said that the Fourth Amendment applies to this kind of situation, that it clearly prohibits this kind of "seizure," and that it was clearly established at the time that the agent couldn't shoot the youth. The court distinguished Verdugo-Urquidez, saying that the agent in this case "acted on American soil subject to American law."

The court went on to rule that Bivens provided a remedy. The court said that while this case indeed presented a new Bivens context, Rodriguez had no other adequate remedy, and there were no "special factors" counseling hesitation.

Judge M. Smith dissented, arguing that Bivens did not extend to this case, and that the court's ruling created a circuit split and disregarded Supreme Court law.

Federal Judge Declares Cash Bail Practice in New Orleans Unconstitutional

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

 In his opinion in Caliste v. Cantrell, United States District Judge for the Eastern District of Louisiana Eldon Fallon declared the bail practices of Judge Cantrell, an Orleans Parish Criminal District Magistrate Judge, unconstitutional as violative of due process under the Fourteenth Amendment.

After disposing of questions of justiciability and absention, Judge Fallon considered the cash bail practices in which the parish judge would never inquire regarding defendants' ability to post bail or provide reasoning for a rejection of alternative conditions of release, and would tell "public defenders that he would hold them in contempt when they have attempted to argue for lower bond amounts or RORs for their clients.” 

Judge Fallon found that the practices violated procedural due process, applying the well-settled balancing test of Matthews v. Eldridge (1976).  Judge Fallon concluded "that in the context of hearings to determine pretrial detention Due Process requires:

1) an inquiry into the arrestee’s ability to pay, including notice of the importance of this issue and the ability to be heard on this issue;
2) consideration of alternative conditions of release, including findings on the record applying the clear and convincing standard and explaining why an arrestee does not qualify for alternative conditions of release; and
3) representative counsel.

Judge Fallon also found there was a substantive due process violation, analyzing it in a section entitled "conflict of interest." Judge Fallon relied in part on Caperton v. Massey (2009), noting that there need not be proof of "actual bias," but there should be an inquiry “whether, ‘under a realistic appraisal of psychological tendencies and human weakness,’ the interest ‘poses such a risk of actual bias or prejudgment that the practice must be forbidden if the guarantee of due process is to be adequately implemented.’”  In the Orleans parish, the problem was that the Orleans judge not only set bail but also managed "the Judicial Expense Fund, a portion of which comes from fees levied on commercial surety bonds." Judge Fallon found this was a conflict of interest rising to a due process violation: "Judge Cantrell’s institutional incentives create a substantial and unconstitutional conflict of interest when he determines their ability to pay bail and sets the amount of that bail."

Thus, the federal court entered summary judgment in favor of the plaintiffs, declaring the cash bail practices of  the Orleans parish judge unconstitutional.

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Federal Judge: Injunction Against Transgender Military Ban Retained

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

United States District Judge Colleen Kollar-Kotelley has reaffirmed the injunction of  the ban on transgender individuals in the military, first announced on Twitter by the President in Doe v. Trump in two opinions.  Recall that in October, the judge issued a lengthy opinion and a preliminary injunction against the ban as likely to violate equal protection.

The case returned to Judge Kollar-Kotelley after an unsuccessful appeal and attempt to stay the preliminary injunction. The government moved to dismiss, essentially rearguing its contentions regarding standing.

In a 34 page opinion, the judge again rejected these arguments. But the government newly argued for dismissal and dissolution of the preliminary injunction because the 2018 "Mattis Implementation Plan" represents a “new policy” divorced and distinct from the President’s 2017 policy directives that were previously enjoined by this Court, and that the Mattis Implementation Plan does not harm the Plaintiffs in this case. However, the judge held that "whatever legal relevance the Mattis
Implementation Plan might have, it has not fundamentally changed the circumstances of this lawsuit such that Plaintiffs’ claims should be dismissed for lack of jurisdiction, or that the need for the Court’s preliminary injunction has dissipated." In evaluating the Mattis Implementation Plan, the judge stated:

the Mattis Implementation Plan in fact prohibits transgender military service—just as President Trump’s 2017 directives ordered. It is true that the plan takes a slightly less direct approach to accomplishing this goal than the President’s 2017 tweet and memorandum. Instead of expressly banning all “transgender individuals” from military service, the Mattis Implementation Plan works by absolutely disqualifying individuals who require or have undergone gender transition, generally disqualifying individuals with a history or diagnosis of gender dysphoria, and, to the extent that there are any individuals who identify as “transgender” but do not fall under the first two categories, only allowing them to serve “in their biological sex” (which means that openly transgender persons are generally not allowed to serve in conformance with their identity).

[emphasis in original]. In short, she concluded that "whatever legal relevance the Mattis Implementation Plan and associated documents might have, they are not sufficiently divorced from, or different than, the President’s 2017 directive." 

However, in a separate and relatively brief opinion, she did grant the government's motion to dismiss Donald Trump as a defendant. The government moved to dismiss the president as a defendant and for a protective order regarding discovery. Judge Kollar-Kotelly concluded that

Through this lawsuit, Plaintiffs ask this Court to enjoin a policy that represents an official, non-ministerial act of the President, and declare that policy unlawful.  Sound separation-of-power principles counsel the Court against granting these forms of relief against the President directly.

She noted that confrontation between the judicial and executive branch should be avoided whenever possible, but such confrontation 

can be easily avoided here, because dismissing the President will have little or no substantive effect on this litigation. Plaintiffs argue that the acts of the President himself are central to this case, and the Court agrees. But dismissing the President as a Defendant does not mean that those acts will not be subject to judicial review. The Court can still review those acts and, if Plaintiffs are successful in proving that they are unconstitutional, Plaintiffs can still obtain all of the relief that they seek from the other Defendants.

Given that the President is no longer a defendant, the judge ruled the motion for a protective order regarding discovery was moot, but

the Court reiterates that dismissing the President as a party to this case does not mean that Plaintiffs are prevented from pursuing discovery related to the President. The Court understands that the parties dispute whether discovery related to the President which has been sought by Plaintiffs is precluded by the deliberative process or presidential communication privileges, and the Court makes no ruling on those disputes at this point.

While the plaintiffs had argued that dismissing the president was not warranted, Judge Kollar-Kotelly's dismissal has little bearing on the ultimate resolution of the case, a conclusion she reiterated several times. It also has little effect on the present status of the case; the accompanying order emphasized that "The injunction remains in force as it applies to all other Defendants" (italics in original).

 

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Fifth Circuit Strikes State "Threat" Law

Steven D. Schwinn, John Marshall Law School

The Fifth Circuit ruled in Seals v. McBee that Louisiana's statute that criminalizes "threats" is unconstitutionally overbroad in violation of the First Amendment. The ruling strikes the state law.

The case arose when officers arrested Travis Seals for an unspecified reason and claimed that Seals resisted arrest and threatened them (with physical harm and legal action). The DA declined to prosecute. Seals then filed a civil action against officers for malicious prosecution, conspiracy, and a First Amendment violation. In particular, Seals said that the Louisiana statute that criminalizes "threats" was unconstitutionally overbroad. (The statute criminalizes "public intimidation," defined as "the use of violence, force, or threats upon [specified persons, including public officers and public employees] with the intent to influence his conduct in relation to his position, employment, or duty.)

The court first ruled that Seals had standing to sue, even though the DA disavowed bringing charges (but also that the government could bring charges as late as December 2019):

Seals's position mirrors that of the plaintiffs in United Farm Workers. He already bet the farm. And when he violated Section 14:122, he was arrested. Louisiana has disavowed prosecution but concedes that Seals actually violated the statute and is legally subject to prosecution. Moreover, Louisiana has introduced evidence of other enforcement actions that are currently being pursued. Viewed alongside a review of Louisiana's caselaw, that evidence shows that Section 14:122 is not a mere paper tiger but has a real history of enforcement. Because the scales are at least as balanced as in United Farm Workers, Seals, too, has standing to challenge Section 14:122.

The court ruled next that the statute was substantially overbroad in violation of free speech:

"[H]ere the statute sweeps so broadly, encompassing any number of constitutionally protected threats, such as to boycott communities, to run against incumbents, and to sue police officers. Hence it is overbroad."

Court Closes Campaign Finance Disclosure Loophole

Steven D. Schwinn, John Marshall Law School

Chief Judge Beryl A. Howell (D.D.C.) ruled on Friday in CREW v. FEC that an FEC regulatory loophole that allows 501(c)(4) organizations and cooperating super-PACs to avoid statutory disclosure requirements was invalid. The ruling strikes the FEC regulation, invalidates the FEC's dismissal of CREW's administrative complaint against Crossroads GPS, and means that the FEC has to reconsider the complaint for failure to disclose contributors. Judge Howell stayed the ruling to give the FEC time to issue valid interim regulations.

The ball's now in the FEC's court. Depending on what the FEC does, this ruling could strike a serious blow to 501(c)(4)s and cooperating super-PACs that use the regulatory loophole to fly under the radar and evade disclosure of contributors.

The case tests the FEC disclosure reg at 11 C.F.R. Sec. 109.10(e)(1)(vi) against the authorizing federal law at 52 U.S.C. Secs. 30104(c)(1) and (c)(2)(C). The reg requires a non-political committee (like a 501(c)(4) organization) to report "[t]he identification of each person who made a contribution in excess of $200 to the person filing such report, which contribution was made for the purpose of furthering the reported independent expenditure." The statute requires a non-political committee "who makes independent expenditures in an aggregate amount or value in excess of $250 during a calendar year" to report "the identification of each person who made a contribution in excess of $200 to the person filing such statement which was made for the purpose of furthering an independent expenditure."

The court explained how the reg falls short:

First, the challenged regulation wholly fails to implement another disclosure requirement, mandated in 52 U.S.C. Sec. 30104(c)(1), requiring reporting not-political committees to identify non-trivial donors, as well as the date and amounts of their contributions, when the contributions were made for political purposes to influence any election for federal office, or at the request or authorization of a candidate or the candidate's agent. Such contributions may, in fact, be intended to fund the not-political committee's own contributions and be routed to candidates, political parties, or political committees, such as super PACs. Second, the challenged regulation impermissibly narrows the mandated disclosure in 52 U.S.C. Sec. 30104(c)(2)(C), which requires the identification of such donors contributing for the purpose of furthering the not-political committee's own express advocacy for or against the election of a federal candidate, even when the donor has not expressly directed that the funds be used in the precise manner reported.

These disjunctions between the reg and the statute allow non-political committees and cooperating super-PACs to evade disclosure requirements. The court explains how this works:

Reading subsection (c)(1) out of the statute makes a difference. By contrast to the donors covered in subsection (c)(2)(C), who contributed to support the not-political committee's independent expenditures . . . the donors covered in subsection (c)(1) contributed to not-political committees to support political efforts in connection with federal elections, which contributions may be used by the not-political committee, in some cases, to contribute directly to candidates or political committees, including to fund super PACs. For example, super PACs set up only to make independent expenditures, may receive unlimited contributions from donors, including not-political committees, to fund their independent expenditure activity. While super PACs, as political committees, must disclose their contributors, those disclosed contributors may serve merely as pass-through entities to route the funds to the super PAC.

Indeed, super PACs are often affiliated with not-political committees, such as 501(c)(4) organizations, because, as a political committee and not-political committee, respectively, each entity "abides by a particular set of rules, enjoys distinct opportunities, and is subject to different restraints." Allowing not-political committees to mask donors, who otherwise are subject to disclosure under subsection (c)(1), facilitates the role of these organizations as pass-throughs, enabling donors to contribute to super PACs without being identified by routing their contributions through affiliated 501(c)(4) organizations or other types of not-political committees. Absent enforcement of subjection (c)(1), super PACs disclose the identities of contributing not-political committees, but the latter do not disclose the original contributors, subverting the FECA's broad disclosure regime.

The ruling strikes the FEC reg, but gives the Commission another bite at the apple--45 days to issue interim regs that comply with the statute.

 

Federal Judge Reaffirms Injunction of DACA Rescission

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

In his opinion in NAACP v. Trump, United States District Judge for the District of Columbia John Bates reaffirmed his earlier decision that the Presidential Order rescinding the DACA program was unlawful. Recall that Judge Bates' decision in April rested 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 stayed the ruling, providing the United States Government 90 days to remedy the inadequacies of its rescission decision. The Government relied on a new Memorandum from Secretary Kirstjen M. Nielsen, but Judge Bates found that while the “Nielsen Memo” 

purports to offer further explanation for DHS’s decision to rescind DACA, it fails to elaborate meaningfully on the agency’s primary rationale for its decision: the judgment that the policy was unlawful and unconstitutional. And while the memo offers several additional “policy” grounds for DACA’s rescission, most of these simply repackage legal arguments previously made, and hence are “insufficiently independent from the agency’s evaluation of DACA’s legality” to preclude judicial review or to support the agency’s decision. Finally, the memo does offer what appears to be one bona fide (albeit logically dubious) policy reason for DACA’s rescission, but this reason was articulated nowhere in DHS’s prior explanation for its decision, and therefore cannot support that decision now.

The "bona fide" but "logically dubious" rationale is a sentence in Secretary Nielsen's Memo that expresses a

judgment that DACA’s benefits—whatever they may be—are outweighed by the fact that, in Secretary Nielsen’s view, the policy encourages noncitizen children and their parents to enter the United States illegally. Of course, this rationale is not without its logical difficulties: after all, DACA is available only to those individuals who have lived in the United States since 2007,  so the “tens of thousands of minor aliens” who Secretary Nielsen asserts have illegally entered the United States “in recent years” would not even be eligible under the program.

Yet for Judge Bates, this is improperly post-hoc and cannot rescue the DACA rescission from being arbitrary and capricious under the APA.

While other judges have reached the constitutional issues ( 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 explicitly does not, stating that the decision does not hold "that DHS lacks the statutory or constitutional authority to rescind the DACA program," but only if it does so, it must provide a "rational explanation for its decision" under the APA rather than a "conclusory assertion that a prior policy is illegal, accompanied by a hodgepodge of illogical or post hoc policy assertions." 

In an interesting footnote, Judge Bates notes there is an ongoing debates regarding "the propriety of so-called nationwide injunctions," but then states that this "debate is not implicated here" because the court "is vacating an agency action pursuant to the APA, as opposed to enjoining it as a violation of the Constitution or other applicable law. "  Judge Bates did continue the stay of the injunction, however, for an additional 20 days to allow the government to appeal.

Cities Sue Trump Administration for Sabotaging Affordable Care Act

Steven D. Schwinn, John Marshall Law School

A group of cities and a couple individuals filed suit yesterday against the Trump Administration, arguing that the Administration's efforts to sabotage the Affordable Care Act violate the Administrative Procedure Act and the Take Care Clause.

The complaint takes aim at the "2019 Rule," a final rule promulgated by the Centers for Medicare and Medicaid Services that "roll[s] back protections that the Act guarantees, make[s] it more difficult to enroll in ACA-compliant plans, and drive[s] up the cost of ACA-compliant plans." The plaintiffs argue the Rule violates the APA, because Administration officials "have failed to provide adequate reasons, and failed to adequately respond to comments, for many provisions of the 2019 Rule, such that they are 'arbitrary' and 'capricious.' In addition, as detailed above, many provisions of the 2019 Rule violate the [ACA], and therefore are not 'in accordance with law.'"

The plaintiffs also challenge various other well publicized Administrative efforts to undermine, sabotage, and eviscerate the Act, and argue that these violate the President's duty to "take care that the laws be faithfully executed."

The plaintiffs argue that they have standing, because the Administration's actions have increased insurance rates caused cities to pay more for uncompensated care.

Check it Out: Tillman and Blackman on Why the Special Counsel may be an Employee (but still invalidly appointed)

For yet a different take on Mueller's constitutionality, check out Seth Barrett Tillman and Josh Blackman's piece on Lawfare, Is Robert Mueller an "Officer of the United States" or an "Employee of the United States?"

They argue that under Lucia, the special counsel is really an "employee," not subject to the Appointments Clause:

The Supreme Court's recent decision in Lucia v. SEC explains that if a federal position is only "temporary," then such a position is likely not an "office of the United States." . . . Therefore, [the special counsel] may not be an "officer of the United States" under the rule in Lucia.

As an employee, they argue, the special counsel is subject to the ordinary appointment requirements for any (non-officer) civil servant.

Still, they argue that there are four reasons to question Mueller's appointment, including that he wasn't appointed pursuant to civil-servant rules, that he may exercises outsized power for an employee, and that his for-cause termination protection runs into Justice Scalia's dissent in Morrison. (On that last point, they say: Lucia may afford a potentially soon-to-be-more-conservative Supreme Court the opportunity to do what Judge Brett Kavanaugh speculated about in 2016: make Justice Scalia's Morrison dissent into a majority opinion.")

District Judge Rejects Challenge to Special Counsel Mueller's Appointment

Steven D. Schwinn, John Marshall Law School

Chief Judge Beryl A. Howell (D.D.C.) rejected a challenge to Special Counsel Robert Mueller's appointment under the Appointments Clause. The ruling, which came in response to a witness's challenge to a grand jury subpoena issued by Mueller, means that the witness--identified by several sources as Andrew Miller, a former associate of Roger Stone--will have to comply with the subpoena.

The ruling aligns with other district court rulings that upheld Mueller's appointment.

Miller challenged a grand jury subpoena issued by Mueller, arguing that Mueller was invalidly appointed under the Appointments Clause. Judge Howell rejected that claim. The court, relying on the factors in Morrison v. Olson, ruled that Mueller was an "inferior officer" and was validly appointed, pursuant to federal statute, by the head of a department. As to Miller's claim that DAG Rod Rosenstein wasn't the "Head of Department" for purposes of the Appointments Clause (because he was the DAG, not the AG), the court said that federal law authorizes the DAG to serve as Acting AG when the AG is recused, and that a different statutory provision allows the AG to delegate to the DAG authority to appoint the Special Counsel.

Daily Read: Actually, There is No Liberal Case for Kavanaugh

In an op-ed in the Los Angeles Times  Yale Law Professors David Singh Grewal, Amy Kapczynski and Issa Kohler-Hausmann argue that there is no liberal "case for Kavanaugh," the President's nominee for Supreme Court Justice.

They conclude

Trump’s nominations for the high court will have grave, long-lasting effects on the nation. Let the debate over Kavanaugh’s confirmation focus on the issues, not on the pedigree or manners of a judge who, as a justice, will almost surely work to undermine decades of settled judicial precedent in a way no liberal should be willing to condone.

Moreover, they speculate that liberal voices supporting the nominee may simply be currying favor:

Perhaps liberals praise Kavanaugh in order to gain favor with him. If confirmed, he will be in a position of great power in the legal world for decades to come, able to influence whose views are cited in judicial opinions and whose clerkship candidates are hired.

Meanwhile, it was reported that 74 protesters objecting to the nominee were arrested at the Hart Senate Office Building for crowding the halls.

 

Sixth Circuit Says Mine Commission ALJs are Unconstitutional Under Lucia

Steven D. Schwinn, John Marshall Law School

The Sixth Circuit ruled this week in Jones Brothers, Inc. v. Sec'y of Labor that administrative law judges in the Mine Safety and Health Review Commission are "inferior officers" and were invalidly appointed under the Appointments Clause.

The very short ruling (on the merits) is a straight-line application of Lucia.

The case arose when the Mine Safety and Health Administration imposed a civil penalty on Jones Brothers for failing to comply with agency safety requirements. A Commission ALJ upheld the penalty, and the Commission itself affirmed.

The problem: The ALJ was appointed by the Commission's Chief ALJ, and not by the "department head" (the Commission itself).

The Sixth Circuit ruled that Mine Commission ALJs operated almost exactly like the SEC ALJs at issue in Lucia, and so were "inferior officers" under the Appointments Clause:

The Commission's administrative law judges are likewise established by statute . . . and exercise significant authority commensurate with their SEC counterparts. Like SEC administrative law judges, they preside over trial-like hearings. In that role, they shape the administrative record by taking testimony, regulating document production and depositions, ruling on the admissibility of evidence, receiving evidence, ruling on dispositive and procedural motions, and issuing subpoenas. Indeed, they exercise "nearly all the tools of federal trial judges."

And like SEC administrative law judges, they have the authority to issue initial decisions assigning liability and imposing sanctions. After 40 days, those decisions become final decisions of the Mine Commission unless the Commission decides to review them. But such review is available at "the sound discretion of the Commission," not as a "matter of right." This process is nearly identical to the SEC's review process.

The court said that Commission ALJs, like SEC ALJs, are therefore "inferior officers." And as "inferior officers," they have to be appointed by the President, a court, or a head of department. But they weren't: they were appointed by the Commission's Chief ALJ. So they're unconstitutional.

The court recognized that the Commission ratified the appointment of every ALJ. That works fine going forward, but for this case, the court, like the Supreme Court in Lucia, ordered that Jones Brothers get a new ALJ hearing before a validly appointed ALJ who is not the original ALJ.

The court spilled quite a bit of ink determining whether Jones Brothers forfeited the constitutional argument by not raising at the administrative stage. The court said that Jones Brothers did forfeit it, but that the forfeiture was excusable here.

Check it Out: Blatt on Why Dems Should Support Kavanaugh

Check out Lisa Blatt's piece at Politico, I'm a Liberal Feminist Lawyer. Here's Why Democrats Should Support Judge Kavanaugh. Blatt says that "[w]hat happened to Merrick Garland was a disgrace." Still,

unless the Democrats want to stand on the principle of an eye-for-an eye--and I don't think they should--folks should stop pretending that Kavanaugh or his record is the issue. He is supremely qualified. Although this fact is distressing, Republicans control both the White House and Senate. In comparable circumstances, when President Barack Obama was in office, our party appointed two Justices to the Supreme Court.

Ninth Circuit Strikes (Yet Another) Blow Against Trump's Anti-Sanctuary Cities Policy

Steven D. Schwinn, John Marshall Law School

The Ninth Circuit struck another blow today against the administration's anti-sanctuary cities policy, ruling in San Francisco v. Trump that the President can't unilaterally withhold federal grants from sanctuary jurisdictions without Congress's say-so.

The ruling is just the latest in a line of similar rulings, and aligns broadly with the Seventh Circuit's ruling in the spring. This ruling is just a little bit different, however, in that it focuses principally on President Trump's original and sweeping Executive Order (and not AG Sessions's interpretive memo). The court rejects the government's attempt to narrow the test of the EO by focusing instead on AG Sessions's memo as the actual government policy. It said that the memo doesn't align with the EO (and is therefore itself ultra vires), and that in any event it's only a post-hoc justification to get the EO to pass muster in the courts.

While the ruling is an outright win for San Francisco and Santa Clara County, the court threw a bone to the administration by vacating the district court's nationwide injunction and remanding the case for reconsideration and further findings on that issue.

The facts--or at least their general outline--is all too familiar by now: In an effort to clamp down on sanctuary jurisdictions, the President ordered that sanctuary jurisdictions come into line with 8 U.S.C. Sec. 1373, which prohibits state and local jurisdictions from restricting their officers from communicating with federal immigration officials. (Other cases have also involved the "notice" and "access" conditions that AG Sessions purported to put on receipt of a certain federal grant in his memo. Those conditions required jurisdictions to provide notice to federal immigration enforcement officials of any detention, and access to state and local facilities for federal immigration enforcement. This ruling didn't deal with those, because it focused on the EO itself.)

The court simply held that under the separation of powers and Congress's Article I, Section 8, power of the purse, it's for Congress, not the Executive, to put conditions on federal spending. The court said that "because Congress has the exclusive power to spend and has not delegated authority to the Executive to condition new grants on compliance with Section 1373, the President's 'power is at its lowest ebb,'" under Justice Jackson's Youngstown framework. And at the lowest ebb, "[b]ecause the Executive Order directs Executive Branch administrative agencies to withhold funding that Congress has not tied to compliance with Section 1373, there is no reasonable argument that the President has not exceeded his authority." In sum:

Absent congressional authorization, the Administration may not redistribute or withhold properly appropriated funds in order to effectuate its own policy goals. Because Congress did not authorize withholding of funds, the Executive Order violates the constitutional principle of the Separation of Powers.

The court flatly rejected the administration's (pretty incredible) argument that its move to condition funds "is all bluster and no bite, representing a perfectly legitimate use of the presidential 'bully pulpit,' without any real meaning . . . .":

[E]ven if we ignore the statements made by and on behalf of the Administration outside the context of this litigation, the Administration's interpretation of the Executive Order strains credulity. And consideration of those statements suggests that the Administration's current litigation position is grounded not in the text of the Executive Order but in a desire to avoid legal consequences.

(Interestingly, the court said nothing about the constitutionality of Section 1373 itself. That provision is now questionable, in light of Murphy v. NCAA, as a possible "commandeering" of state governments in violation of the anti-commandeering principle. Judge Fernandez, in dissent, distinguished Murphy in a footnote by saying that the Court's articulated "principles behind the anticommnadeering rule" don't apply to Section 1373. But it's not clear how the plain ruling itself doesn't apply to Section 1373. More to come on this, I'm sure.)

The court then vacated the district court's nationwide injunction, because "the present record does not support a nationwide injunction." The court remanded "for a more searching inquiry into whether this case justifies the breadth of the injunction imposed."

(Along the way, the court also ruled that the plaintiffs had standing and that the case was ripe for judicial review.)

Judge Fernandez dissented, arguing that the case wasn't ripe and, in any event, that the EO was constitutional, because, by its plain terms, it only applies "to the fullest extent of the law."