Constitutional Law Prof Blog

Divided Second Circuit on Compelled Speech and Foreign Affiliates

In its opinion in Alliance for Open Society International v. United States Agency for International Development, the Second Circuit split in its application of the United States Supreme Court's 2013 opinion in the same case.

Recall that United States Agency for International Development v. Alliance for Open Society International involved a First Amendment challenge to a provision of a federal funding statute requiring some (but not other) organizations to have an explicit policy opposing sex work.  In the relative brief opinion by Chief Justice Roberts, the Court held the spending conditions of requiring an "anti-prostitution pledge" were unconstitutional because they were not limits of the government spending program itself that specified the activities that Congress wants to subsidize, but were "conditions that seek to leverage funding to regulate speech outside the contours of the program itself." 

The subsequent litigation revolved around the reach of this holding. For the district judge and the majority of the Second Circuit panel, the holding included the plaintiff organizations and their "foreign affiliates." For dissenting Judge Chester Straub, the "foreign affiliates" possess "no constitutional rights" and the United States government was free to deny them funding for failure to comply with an otherwise unconstitutional condition. For Judge Straub, the majority misconstrued the United States Supreme Court's opinion, extending it to some vague and ill-defined set of "closely aligned" ("whatever that may mean") foreign entities.  But the majority opinion, authored by Judge Barrington Parker, rejoined that it is not the First Amendment rights of the foreign entities that are violated, but the domestic organization's speech that is compelled.  For the majority, if the government — and by extension, the dissenting Judge — "is right, then Chief Justice Roberts was wrong."

 

Daily Read: SCOTUS Justices, Kavanaugh, and Ethics

In an editorial today, senior editorial writer of the Los Angeles Times Michael McGough argues that "Kavanaugh (and other justices) shouldn't be exempt from an ethics code." McGough's piece is prompted by the December 18 Order (from the Tenth Circuit as referred by Chief Justice Roberts) dismissing the 83 complaints against Kavanaugh which arose from his confirmation hearing and from his previous judicial conduct because Kavanaugh was now a Supreme Court Justice and "Congress has not extended the Judicial Conduct and Disability Act to Supreme Court Justices." As McGough notes, however, Chief Justice Roberts has implied "in a 2011 statement that formally applying the code to the Supreme Court might be unconstitutional because the code was designed for courts created by Congress — whereas the Supreme Court was created by the Constitution."  This refers the 2011 year end report by Chief Justice Roberts in which he stated:

The Code of Conduct, by its express terms, applies only to lower federal court judges. That reflects a fundamental difference between the Supreme Court and the other federal courts. Article III of the Constitution creates only one court, the Supreme Court of the United States, but it empowers Congress to establish additional lower federal courts that the Framers knew the country would need. Congress instituted the Judicial Conference for the benefit of the courts it had created. Because the Judicial Conference is an instrument for the management of the lower federal courts, its committees have no mandate to prescribe rules or standards for any other body.

The Chief Justice soon thereafter explicitly rejected a call from some members of Congress to consider making the Code applicable to the Justices.  As we noted at the time, these concerns arose from Justice Alito attending political events and swirling around Justice Thomas regarding nondisclosure of his wife's finances, his wife's political activities, and his own financial actions. 

Given the renewed concerns regarding the impartiality of the Court as evinced by McGough's editorial among many other pieces, it might be time for Chief Justice Roberts to reconsider his position.  And it will be interesting to see if Roberts addresses ethics in his 2018 year end report.

 

Sixth Circuit Rebuffs Iraqis' Habeas Petition

The Sixth Circuit ruled that a group of Iraqis couldn't bring a habeas petition to challenge their removal to Iraq, and that the district court erred in granting class-wide relief over their detention claim. The ruling sends the case back for further proceedings, but it leaves no room for the lower court to halt their removal. This means that the petitioners will have to follow normal channels available to them to challenge their removal (if any), but that they may be able to obtain injunctions related to their detention one-by-one.

The case arose when a group of Iraqis brought a putative class action habeas petition on behalf of "all Iraqi nationals in the United States with final orders of removal, who have been, or will be, arrested and detained by ICE as a result of Iraq's recent decision to issue travel documents to facilitate U.S. removal." They then brought a second claim, to challenge their continued detention during the pendency of their cases.

The district court ruled that while Congress had vested jurisdiction in "executing removal orders" exclusively in the AG (and thus divested the courts of jurisdiction over those claims), the "extraordinary circumstances" here created an as-applied constitutional violation of the Suspension Clause. As to the detention claims, the district court granted a class-wide preliminary injunction requiring bond hearings.

The Sixth Circuit reversed on both counts. As to the Suspension Clause ruling, the Sixth Circuit called the district court's approach "a broad, novel, and incorrect application of the Suspension Clause" and held that "the type of relief Petitioners seek is not protected by the Suspension Clause":

As the government states, "[t]he claims and relief requested here are fundamentally different from a traditional habeas claim." Petitioners' removal-based claims did not challenge any detention and did not seek release from custody. Rather, they sought "a stay of removal until they . . . had a reasonable period of time to locate immigration counsel, file a motion to reopen in the appropriate administrative immigration forum, and have that motion adjudicated to completion in the administrative system, with time to file a petition for review and request a stay of removal in a federal court of appeals." "[T]he nature of the relief sought by the habeas petitioners suggests that habeas is not appropriate in these cases" because "the last thing petitioners want is simple release" but instead a "court order requiring the United States to shelter them." Munaf. And the relief ordered by the district court--a stay of removal--did not result in Petitioners' release from custody. Because the common-law writ could not have granted Petitioners' requested relief, the Suspension Clause is not triggered here.

Moreover, the court said that Congress provided an adequate alternative to habeas to the petitioners: a motion to reopen followed by a petition for review filed in a court of appeals.

As to the detention claims, the court held that the statute grants courts the power to issue injunctive relief only as to "an individual alien against whom proceedings under such part have been initiated"--and not class-wide relief. 

Join ACS and SALT on SCOTUS Reform at AALS

Check out the American Constitution Society/SALT workshop on The Possibility & Potential of SCOTUS Reform at the AALS Annual Conference, on January 3, 2019, at 6:00 pm. Reception to follow.

Bill Barr's Broadside Against Mueller's Obstruction Investigation

Bill Barr, President Trump's nominee to be AG, earlier this year issued a sweeping criticism of Robert Mueller's investigation into obstruction of justice by the President that further reveals his views on executive authority. (We previously posted on Barr's views on the unitary executive here.) The memo, penned on June 8, 2018, was directed to Deputy AG Rosenstein and Assistance AG Steve Engel, and addresses Mueller's investigation into obstruction based on President Trump's statements to James Comey related to Michael Flynn (that he hoped Comey could eventually "let . . . go" of the Flynn investigation) and his firing of Comey.

The memo--including Barr's constitutional claims, and his prejudgment of Mueller's investigation--will undoubtedly become an issue during his confirmation hearings.

This may become an issue, too: Barr wrote a detailed, 19-page legal analysis on a difficult and hotly contested legal question, even as he acknowledged that he was "in the dark about many facts." (Indeed, Barr doesn't seem to have any particular insider knowledge of Mueller's investigation at all, yet he builds his analysis on remarkably detailed assumptions or guesses about Mueller's legal positions and arguments.) Congress might take note that other attorneys, when "in the dark about many facts," might pause and reflect a little before issuing a 19-page memo with detailed legal analysis--and that Barr's willingness to do so might reflect on his judgment and professionalism.

In short, Barr argues that Mueller is playing loose with the federal law that criminalizes obstruction, and that as a matter of constitutional law the President can't be convicted of obstruction for acting within his authority just because he had a bad motive. In other words, according to Barr the President has inherent Article II authority to do what he did (make the statements to Comey, and fire Comey), and those acts can't become illegal just because he did it with a bad motive.

Barr acknowledges that there are some acts a president might take that would constitute obstruction--for example, by "sabotaging a proceeding's truth-finding function" by "knowingly destroy[ing] or alter[ing] evidence, suborn[ing] perjury," etc.--stopping just short of a Nixonian conclusion that "when the president does it, that means that it is not illegal." But under his theory, there seems to be no way to prevent a president from interfering with or entirely halting an investigation or prosecution into any of these illegalities (aside from whether a sitting president can be prosecuted).

Here's the thumbnail version of the constitutional argument:

Second, Mueller's premise that, whenever an investigation touches on the President's own conduct, it is inherently "corrupt" . . . for the President to influence that matter is insupportable. In granting plenary law enforcement powers to the President, the Constitution places no such limit on the President's supervisory authority. Moreover, such a limitation cannot be reconciled with the Department's longstanding position that the "conflict of interest" laws do not, and cannot, apply to the President, since to apply them would impermissibly "disempower" the President from supervising a class of cases that the Constitution grants him the authority to supervise.

Third, defining facially-lawful exercises of Executive discretion as potential crimes, based solely on subjective motive, would violate Article II of the Constitution by impermissibly burdening the exercise of core discretionary powers within the Executive branch.

The details begin on page 9 of the memo. (Earlier portions of the memo argue that Mueller is misreading and misapplying the obstruction statute.)

Groups Sue to Stop Bump-Stock Ban

An individual and three gun-rights groups filed suit this week in the D.C. District to halt the government's new bump-stock ban. The lawsuit seeks to stop the Bureau of Alcohol, Tobacco, Firearms and Explosives from implementing and enforcing its final rule redefining "bump-stock-type" devices as "machineguns" under the National Firearms Act and the Gun Control Act and thus outlawing them.

The lawsuit alleges an illegally abrupt about-face on the definition (reversing the prior agency position that bump-stocks were not machineguns), without sufficient explanation, and a variety of "irregularities" in the rule-making process under the Administrative Procedure Act; and violations of the tax code.

It also alleges that the ban violates the Takings Clause, the Ex Post Facto Clause, and the Contracts Clause--all kind of a stretch, to be way too generous. (There's no Second Amendment allegation.)

Finally, the complaint alleges that acting AG Whitaker lacks authority to enforce the ban, because (wait for it) . . . his appointment was invalid.

Another Ruling Against Administration Asylum Policies

Judge Jon Tigar (N.D. Cal.) today turned his temporary restraining order against the Administration's policy that makes anyone who crosses the southern border ineligible for asylum into a preliminary injunction. (Recall that the court issued a temporary restraining order late last month. It expired today.)

The ruling halts--or continues to halt--the Administration's ban on southern-border-crossing asylum claims. Still, the Administration's request to the Supreme Court to intervene in Judge Tigar's earlier temporary restraining order is still pending.

After hearing arguments, Judge Tigar wrote that "[t]he harms to those seeking asylum are also even clearer, and correspondingly the public interest more plainly supports injunctive relief."

This was the second ruling today against Administration asylum policies. We covered the earlier one, striking DOJ and USCIS rules largely banning victims of domestic violence and gang violence from asylum, here.

Court Strikes Administration's Restrictions on Domestic and Gang Violence Asylum Seekers

Judge Emmet Sullivan (D.D.C.) today ruled that several aspects of the DOJ's and USCIS's standards for "credible fear" determinations by asylum officers in expedited removal proceedings violated the Immigration and Naturalization Act or were otherwise arbitrary and capricious and therefore invalid under the Administrative Procedure Act.

Judge Sullivan vacated the credible fear policies; permanently enjoined the government from applying those policies and from removing plaintiffs who are currently in the United States without first providing a valid credible fear determination; and ordered the government to return to the United States the plaintiffs who were unlawfully deported and to provide them with a new credible fear determination. (At the same time, the court identified portions of the standards that were not inconsistent with the INA.)

The ruling means that the government cannot implement its sweeping and unilateral restrictions on asylum claims at the credible fear stage based on domestic violence and gang violence. It follow by just a couple weeks another significant ruling against Administration asylum restrictions.

The ruling is a huge victory for asylum claimants, and a serious blow against the Trump Administration's efforts to restrict the bases for asylum at the credible fear stage by unilateral agency action.

The case tested then-AG Sessions's ruling in Matter of A-B- and a USCIS Policy Memo, both of which had the effect of denying asylum to victims of domestic violence and gang violence. The court ruled that most of the standards in these administrative documents violated the INA and the APA.

Tenth Circuit Judicial Council Tosses Complaints Against Justice Kavanaugh

The Judicial Council of the Tenth Circuit today tossed out the scores of complaints against Justice Kavanaugh on the ground that as a Supreme Court justice he is no longer subject to the Judicial Conduct and Disability Act. Thus, the Council lacked jurisdiction and dismissed the complaints.

Chief Justice Roberts referred to the Tenth Circuit 83 complaints, alleging that Justice Kavanaugh testified falsely to Congress in his confirmation hearings about his role in the Bush administration, that he testified falsely about his personal conduct, and that he displayed partisan bias and lack of appropriate judicial temperament--all in violation of various canons of the Code of Conduct for United States Judges.

But the Judicial Council of the Tenth Circuit ruled that the Act "effectively precludes action against an individual who is no longer a circuit, district, bankruptcy or magistrate judge." "In conclusion, Congress has not extended the Judicial Conduct and Disability Act to Supreme Court justices."

Still, this might not end the matter. As the ruling states,

The importance of ensuring that governing bodies with clear jurisdiction are aware of the complaints should also be acknowledged. Accordingly, we request that the Committee on Judicial Conduct and Disability of the Judicial Conference of the United States forward a copy of this Order to any relevant Congressional committees for their information.

. . .

As with any misconduct complaint . . . any complainant has a right to seek review of this Order by filing a petition for review by the Judicial Council . . . .

Court Strikes the Entire Affordable Care Act

Judge Reed O'Connor (N.D. Tex.) today issued a sweeping and breathtaking ruling striking the entire Affordable Care Act. Judge O'Connor ruled that the individual mandate could no longer be supported by Congress's taxing power; that the individual mandate is not severable from the rest of the ACA; and that therefore the entire ACA must fail.

The case, Texas v. United States, arose after Congress passed the 2017 Tax Cuts and Jobs Act, which set the tax-penalty for noncompliance with the ACA's individual mandate at $0. Texas, a handful of other states, and a couple individuals sued, arguing that the individual mandate could no longer be supported by Congress's taxing power (as the Court held in NFIB), and, because it also couldn't be supported by Congress's Commerce Clause power (also as the Court held in NFIB), it was unconstitutional. Moreover, they argued that it was non-severable from the non-discrimination and community rating provisions of the ACA, and so therefore those provisions needed to fall, too.

The court agreed. Judge O'Connor ruled that the tax-penalty of the individual mandate could no longer be supported by Congress's taxing authority (in light of the $0 penalty in the 2017 tax act, which means that the penalty no longer raises money for the government, the touchstone for the taxing power). And because the mandate couldn't stand alone, without a tax penalty, because it can't be supported by the Commerce Clause, it is unconstitutional. But Judge O'Connor went a step farther and ruled that the individual mandate was non-severable from the entire ACA. The court looked to the statutory language (including congressional findings, which stated that the individual mandate was an essential part of the integrated ACA in order to ensure broad health insurance coverage and low costs), and the Court's ruling in NFIB to concluded that the entire Act was non-severable. As a result, the court struck the entire Act.

The ruling came as a declaratory judgment and summary judgment in favor of the plaintiffs, despite the fact that the plaintiffs originally sought only declaratory relief and a preliminary injunction. 

Unless stayed pending appeal (not in this ruling), the ruling gives cover to the government to start to dismantle the entire ACA (or at least those provisions that it hasn't already started to dismantle). 

Ninth Circuit Halts Interim Rules on ACA Contraception Exemptions, but Only as to Plaintiff States

The Ninth Circuit upheld a lower court's preliminary injunction barring the government from enforcing its interim final rules allowing employers and organizations more freely to exempt themselves from the Affordable Care Act's contraception requirement. But at the same time, the court narrowed the nationwide injunction to just the plaintiff states.

The ruling is a significant victory for the plaintiffs. But it may be short-lived, as the government moves to implement final rules (the same as the interim rules, published in November) in January.

The case, California v. Azar, involves several states' (California, Delaware, Virginia, Maryland, and New York) challenge to the government's 2017 interim final rules substantially loosening the exemption standard for organizations and persons to get out from under the Affordable Care Act's contraception requirement. (Recall that the Supreme Court declined to rule on the government's prior exemption in Zubik v. Burwell.) The two IFRs categorically exempted certain religious employers and essentially made the requirement optional for anyone else who has a "sincerely held moral conviction" to contraception.

The plaintiffs argued that the IFRs violated the Administrative Procedure Act (because the agencies didn't use APA notice-and-comment procedures in implementing the IFRs), equal protection, and the Establishment Clause. The Northern District of California held that they were likely to succeed on their APA claim, and issued a nationwide injunction.

The Ninth Circuit affirmed, but limited the injunction to the plaintiff states.

The court first held that the case wasn't moot. The court said that while the agencies published final rules in November, those rules won't go into effect until January 14, 2019. In the meantime, the IFRs are in effect. And because the plaintiffs challenge the IFRs, their case isn't moot.

The court next held that the plaintiffs had standing, based on their increased costs for their already-existing contraception programs. "The states show, with reasonable probability, that the IFRs will first lead to women losing employer-sponsored contraceptive coverage, which will then result in economic harm to the states" because the states will have to fill the coverage loss through their existing free or subsidized contraceptive programs. 

As to the APA, the court ruled that the plaintiffs were likely to succeed--that HHS violated notice-and-comment rulemaking under the APA. The court held that the government's interests in eliminating regulatory uncertainty, eliminating RFRA violations, and reducing the cost of health insurance were insufficient to bypass notice-and-comment procedures. As to regulatory uncertainty, the court said it "is not by itself good cause" to bypass APA procedures. As to RFRA, the court said that "the agencies' reliance on this justification was not a reasoned decision based on findings in the record." And as to reducing health insurance costs, the court said that "[t]his is speculation unsupported by the administrative record and is not sufficient to constitute good cause." The court also said that the agencies lacked statutory authority to bypass notice-and-comment procedures. 

But the court narrowed the district court's nationwide preliminary injunction, and applied it only to the plaintiff states.

Judge Kleinfeld dissented, arguing that the plaintiffs lacked standing, because "their injury is what the Supreme Court calls 'self-inflicted,' because it arises solely from their legislative decisions to pay" for contraception-access programs.

Fifth Circuit Dismisses Texas's Plea for Declaratory Relief on Anti-Sanctuary Bill

The Fifth Circuit dismissed Texas's case seeking a declaration that its anti-sanctuary-city bill, SB4, did not violate the Constitution. The ruling follows its opinion earlier this year upholding most of the law.

The upshot: SB4 mostly stays on the books.

In this most recent case, Texas v. Travis County, the state sought declaratory relief that SB4 did not violate various provisions of the Constitution. (Recall that SB4 is a state law that requires jurisdictions within the state to comply with federal immigration detainer requests--and, to that extent, not be sanctuary jurisdictions.) The defendants moved to dismiss for lack of standing. But the court held that under Franchise Tax Board it lacked federal-question jurisdiction (and therefore didn't reach the standing question). Here's why (quoting Franchise Tax Board):

States are not significantly prejudiced by an inability to come to federal court for a declaratory judgment in advance of a possible injunctive suit by a person subject to federal regulation. They have a variety of means by which they can enforce their own laws in their own courts, and they do not suffer if the [constitutional questions that] such enforcement may raise are tested there.

...

[U]ntil Congress informs us otherwise, such a suit is not within the original jurisdiction of the United Sates district courts.

Because of the earlier ruling upholding SB4--and because this case merely dismisses Texas's suit for lack of jurisdiction--this case has no effect on SB4. As the court said, "[M]ost of SB4 is now in effect."

 

Second Circuit Lets Eviction-Settlement Challenges Move Forward

The Second Circuit ruled that a case challenging New York officials' eviction-settlement practices can move forward in federal court, despite the fact that a state-court judge ratified the settlements. The ruling is a victory for victims of the practices, and says that a civil-rights defendant can't side-step federal jurisdiction by having a state-court judge merely ratify the defendant's actions.

The case, Cho v. City of New York, arose when New York officials coerced individuals and businesses into signing settlement agreements waiving various constitutional rights in order to avoid eviction. The settlement agreements were subsequently "so-ordered" by state-court judges.

Plaintiffs sued in federal court under Section 1983, but the defendants won a district court ruling dismissing the case based on the Rooker-Feldman doctrine. (That doctrine says that a federal district court can't hear an appeal of a state-court judgment.) The Second Circuit reversed.

The court ruled that the state-court judges' acts of "so-order[ing]" the settlement agreements didn't turn the plaintiffs' federal-court case into a de facto appeal (that would have been barred by Rooker-Feldman). Instead, the state-court judges merely ratified the settlements. Moreover, the plaintiffs' harm was caused by the coerced settlement agreements themselves, not by the state-court ratification. The court explained:

The instant case thus does not entail the evil Rooker-Feldman was designed to prevent. Plaintiffs are attempting to remedy an alleged injury caused when, prior to any judicial action, they were coerced to settle, not an injury that flows from a state-court judgment. By allowing an action such as this to go forward, we do not risk turning our federal district courts into quasi-appellate courts sitting in review of state-court decisions.

The ruling only allows the case to move forward in federal court; it says nothing about the merits.

Court Tosses San Francisco's Challenge to Trump Walk-Back of Regulatory Guidance

Judge Jon S. Tigar (N.D. Cal.) ruled that San Francisco lacked standing to challenge the Trump Administration's rescission of administrative guidance documents related to various federal civil rights and immigration statutes. The ruling is a victory for the Trump Administration and its deregulatory agenda.

The case, San Francisco v. Whitaker, arose out of President Trump's executive order instructing agencies to identify regulatory actions that were "outdated, unnecessary, or ineffective" as candidates for repeal, modification, or replacement. Then-AG Sessions issued a memo stating that DOJ would no longer "issue guidance documents that purport to create rights or obligations binding on persons or entities outside the Executive Branch (including state, local, and tribal governments)." DOJ subsequently announced that it would rescind 25 guidance documents.

San Francisco sued to stop the DOJ from rescinding eight of those, arguing that the rescission was arbitrary and capricious under the Administrative Procedure Act. (The eight relate to the ADA, the FHA, the INA, and various fee and fine practices.)

The court ruled that San Francisco lacked standing. While the court said that San Francisco could assert procedural standing or organizational standing, it still needed to show a harm--and it didn't. The city's theory of harm varied depending on the particular guidance document, but in general the court held that it failed to show that rescission would interfere with its interest in regulation, or increase the risk of enforcement action against it, or that it failed to show a sufficiently tight connection between the rescission and any harm to the city.

The ruling means that the rescission can move forward, ultimately curbing federal regulation of these provisions. Establishing standing to challenge a roll-back on regulations is always trickier than establishing standing to challenge regulations themselves, and it's not clear if or how another plaintiff might show a harm to challenge these or other rescission documents.

Can President Trump be Criminally Charged? And Should He Be?

In the wake of the government's release of sentencing memos for Michael Cohen--and their fingering of President Trump for unlawful acts during the campaign--there's renewed interest in whether a president can be criminally charged.

We posted previously on this and related issues here (on President Trump's lawyers' take on the question) and here (on law profs' response). And here's the 2000 OLC memo.

Marty Lederman has an op-ed in today's NYT, where he argues that President Trump could be indicted, but that there are bigger fish to fry in the Mueller investigation:

Perhaps Mr. Trump will become the first president to face criminal charges. Perhaps not. But that's the least of it. We'd be wise to shift our attention from the unlikely possibility of a trial to the much more important matter of what the Mueller investigation might tell us about Mr. Trump's relationships with Russia and whether they compromise his ability to protect and defend the nation.

Call for Papers: Michigan Junior Scholars Conference

Michigan Law posted this announcement and call for papers for its Fifth Annual Junior Scholars Conference.

Submissions (600-word abstract, plus a CV) are due by January 12, 2019. From the call:

The conference provides junior scholars with a platform to present and discuss their work with peers, and to receive detailed feedback from senior members of the Michigan Law faculty. The Conference aims to promote fruitful collaboration between participants and to encourage their integration into a community of legal scholars. The Junior Scholars Conference is intended for academics in both law and related disciplines. Applications from postdoctoral researchers, lecturers, fellows, SJD/PhD candidates, and assistant professors (pre-tenure) who have not held an academic position for more than four years are welcomed.

 

District Court Dismisses FACA Challenge to Trump's Infrastructure Council

Judge Ellen Segal Huvelle (D.D.C.) dismissed a suit challenging President Trump's Infrastructure Council under the Federal Advisory Committee Act.

The ruling in Food & Water Watch v. Trump arose out of the plaintiff's FACA challenge to the Council, which was (or would have been) designed to give the President advice on infrastructure policy. The plaintiff claimed that the Council was stacked with President Trump's friends, and thus violated FACA's membership and transparency requirements.

The problem: the Council never got off the ground. For that reason, the court said it wasn't a "committee" or even a "de facto committee" under FACA, and the court therefore lacked jurisdiction.

Judge Huvelle emphasized how narrowly courts interpret FACA in order to avoid a separation-of-powers problem. Citing In re Cheney, she wrote

Congress could not have meant that participation in committee meetings or activities, even influential participation, would be enough to make someone a member of the committee . . . . Separation-of-powers concerns strongly support this interpretation of FACA. In making decisions on personnel and policy, and in formulating legislative proposals, the President must be free to seek confidential information from many sources, both inside the government and outside.

The court also denied the plaintiff's request for further discovery.

Organizations Have Standing to Challenge USDA Inaction on Birds (again), but Lose (again)

Judge Trevor N. McFadden (D.D.C.) ruled in American Anti-Vivisection Society v. USDA that plaintiff organizations had standing to sue the USDA for its 14-year failure to extend protections under the Animal Welfare Act to birds. But at the same time, the court ruled that the plaintiffs' Administrative Procedure Act claims failed.

The case is a reprise of PETA v. USDA, a D.C. Circuit ruling over 3 years ago.

The court recognized the D.C. Circuit's "permissive" rules on organizational standing, and said that while this case presented standing difficulties, it fell in line with PETA:

But the Plaintiffs' organizational standing allegations are similar enough to PETA II to dictate the outcome here. As there, the Plaintiffs have, "at the dismissal stage, adequately shown that the USDA's inaction injured [their] interests and, consequently, [they have] expended resources to counteract those injuries." They have alleged with enough supporting factual allegations that the challenged agency decisions "deny [them] access to information and avenues of redress they wish to use in their routine information-dispensing, counseling, and referral activities." In other words, they have plausibly "alleged inhibition of their daily operations, . . . an injury both concrete and specific to the work in which they are engaged."

This injury--an inability to gather information, publish reports, and help reduce the neglect and abuse of birds--is traceable to the Department's inaction and could be redressed by an order compelling the Department to issue regulations. And the Plaintiffs have pointed to webinars and other educational programs they must produce in the absence of applicable avian regulations. The Court finds that the Plaintiffs have standing and that it has jurisdiction to consider the merits of their arguments.

Nevertheless, the court ruled that the plaintiffs' APA claims failed, because the USDA took the "legally required" action (even if not the bird rules), and because the USDA's inaction isn't a "final agency action."

William Barr's Unitary Executive

If you want to know what William P. Barr, President Trump's nominee for Attorney General, thinks about congressional interference with executive-branch operations and the "unitary executive," check out his 1989 memo as assistant attorney general in the OLC. (Spoiler alert: He's an aggressive proponent of a unitary executive, in ways both familiar and less familiar in today's constitutional politics.)

Notably--and contrary to a trend among unitary executive advocates--he doesn't disavow Morrison v. Olson (at least not in this memo); he just says that most or all independent offices are distinguishable from the independent counsel (and therefore unconstitutional even under that case). Given the current political winds, it seems likely his position on Morrison will likely change. In any event, this doesn't necessarily say anything about his position on Special Counsel Mueller: Mueller was appointed pursuant to DOJ regs, not a congressional statute, so doesn't raise the same separation-of-powers concerns as the old independent counsel.

The memo outlines these "Common Legislative Encroachments On Executive Branch Authority":

• Interference with the President's Appointment Power, including incompatibility and ineligibility issues (e.g., appointing members of Congress to executive-branch commissions that have more than advisory roles), directing the president to appoint from an approved list of candidates, and delegations of authority to positions outside the executive branch (e.g., qui tam statutes).
• The creation of hybrid commissions that reach into executive authority.
• Attempts to constraint the president's "removal power."
• "Micromanagement of the Executive Branch," by mandating certain executive processes and bureaucratic organization.
• "Attempts to Gain Access to Sensitive Executive Branch Information."
• Legislative vetoes (even after Chadha).
• Requirements that executive officials submit legislation to Congress.
• Restrictions on the president's recess appointment power.

 

 

Check it Out: Greenhouse on How President George H.W. Bush Filled Supreme Court Vacancies

Check out Linda Greenhouse's piece in the NYT, How to Fill a Supreme Court Vacancy.

My goal here is not to appraise the two Bush 41 justices. It's to compare the approaches--one conciliatory, the other, confrontations--that in the space of a single year (July 1990 to July 1991) produced such different nominees. Those approaches remain today as contrasting archetypes for how to fill a Supreme Court vacancy.