Constitutional Law Prof Blog

Kansas Supreme Court Finds Fundamental Right to Abortion Under State Constitution

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

In its extensive opinion in Hodes & Nauser v. Schmidt, the Supreme Court of Kansas held that the right to abortion in protected under its state constitution and regulations of the fundamental right should be subject to strict scrutiny.

The per curiam opinion is exceedingly clear that the opinion rests on independent state constitutional grounds and that it is interpreting §1 of the Kansas state Constitution, adopted in 1859:  "All men are possessed of equal and inalienable natural rights, among which are life, liberty, and the pursuit of happiness." The court specifically finds that this provision creates judicially enforceable "natural rights" such as the right to "personal autonomy" to make decisions regarding our bodies, health care, family formation, and family life, including a woman's right to decide whether to continue a pregnancy.

Having held that the right to an abortion is encompassed within the fundamental right bodily autonomy, the Kansas Supreme Court held that strict scrutiny should apply, which the court articulated as prohibited the state from restricting that right unless it can show it is doing so to further a compelling government interest and in a way that is narrowly tailored to that interest.

At issue in the case is Kansas S.B. 95, passed in 2015, now K.S.A. 65-6741 through 65-6749, which prohibits physicians from performing a specific abortion method referred to in medical terms as Dilation and Evacuation (D & E) except when "necessary to preserve the life of the pregnant woman" or to prevent a "substantial and irreversible physical impairment of a major bodily function of the pregnant woman."

The trial court had issued a preliminary injunction, which the Kansas Supreme Court upheld, but remanded the case for a fuller evidentiary hearing applying strict scrutiny.

via & caption: Kansas Supreme Court
Seated left to right: Hon. Marla J. Luckert, Hon. Lawton R. Nuss, Chief Justice; Hon. Carol A. Beier.
Standing left to right: Hon. Dan Biles, Hon. Eric S. Rosen, Hon. Lee A. Johnson, and Hon. Caleb Stegall. 

In a concurring opinion, Justice Dan Biles argued that the majority should be more explicit in articulating how strict scrutiny should be applied in the abortion context, suggesting what "our state test should look like using an evidence-based analytical model taken from Whole Woman's Health v. Hellerstedt" (2016).  Justice Biles provided a very detailed roadmap that would be attractive to the trial court. Justice Biles also placed the decision within developments in state constitutional law on abortion:

It is also worth mentioning our court has not gone rogue today. By my count, appellate courts in 17 states have addressed whether their state constitutions independently protect a pregnant woman's decisions regarding her pregnancy from unjustifiable government interference. Of those, 13 have plainly held they do. [citations omitted].

The sole dissenting Justice of the seven Justices of the Kansas Supreme Court (pictured above) was Justice Caleb Stegall, who relied on numerous dissenting opinions in both the United States Supreme Court and Kansas Supreme Court. He began his opinion by stating "This case is not only about abortion policy—the most divisive social issue of our day—it is more elementally about the structure of our republican form of government." In essence, he considers the majority to be taking an activist stance. The majority opinion does devote more than a little attention to refuting and engaging with the dissent's arguments.

Because the case cannot be reviewed by the United States Supreme Court (given that the state's highest court decided it on the independent ground of its state constitution, unless it is argued it infringes on another constitutional right), subsequent constitutional law issues will be concentrated on what happens in the trial court and what might happen in other states. 

Federal Judge Enjoins Texas anti-BDS Statute as Violative of First Amendment

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

In an opinion in Amawi v. Pflugerville Independent School District, United States District Judge for the Western District of Texas, Judge Robert Pittman, issued a temporary injunction against Texas Gov. Code § 2270.001 et seq., also known as Texas H.B. 89, passed in 2017.

HB 89 prohibits governmental entities from entering into contracts for goods or services unless the contract contains a written verification that the contractor does not and will not "boycott Israel." Texas essentially admitted HB 89 is targeted at participants in the BDS (boycott, divest, and sanction) movement which protests Israel's "occupation of Palestinian territory and its treatment of Palestinian citizens and refugees." The five plaintiffs —a speech pathologist contracting with a school district; a freelance writer, artist, interpreter, and translator contracting with a university; and three university students who would contract with high schools as debate tournament judges — refused to sign the required statement that they did not and would not boycott Israel.

Judge Pittman easily found that the plaintiffs had standing, that their claims were ripe, and that the action was not barred by Eleventh Amendment immunity.

On the merits of the First Amendment claims, Judge Pittman's careful and well reasoned opinion first concluded that the prohibition of a boycott was inherently expressive activity protected by the First Amendment. The parties had raised what Judge Pittman called "dueling precedents": NAACP v. Claiborne Hardware Co. (1992) and Rumsfeld v. FAIR (2006).  He concluded:

Claiborne, not FAIR, governs this case. Texas does not dispute that Plaintiffs’ boycotts are political; they support the BDS movement’s “dispute with the Israeli government’s policies.”  Claiborne deals with political boycotts; FAIR, in contrast, is not about boycotts at all. The Supreme Court did not treat the FAIR plaintiffs’ conduct as a boycott: the word “boycott” appears nowhere in the opinion, the decision to withhold patronage is not implicated, and Claiborne, the key decision recognizing that the First Amendment protects political boycotts, is not discussed.

Moreover, Judge Pittman stated, even if "it were generally true that boycotts are not inherently expressive, H.B. 89, by its terms, applies only to expressive boycotts," given the statutory definitions. Judge Pittman then rejected the arguments of Texas that exceptions to Claiborne were applicable.

Judge Pittman then found that the H.B. 89 was viewpoint and content discrimination, and was not government speech under Walker v. Texas Div., Sons of Confederate Veterans, Inc. (2015).  Applying the applicable standard of strict scrutiny, Judge Walker found that the asserted compelling governmental interests failed. Judge Pittman found two of the interests — prohibiting national-origin discrimination, and prohibiting state contractors from violating anti-discrimination principles — to essentially be not the actual interests underlying H.B. 89. Judge Pittman noted the statute does not refer to the "national origin" or "nationality" of individuals but to "the nation of Israel." Judge Pittman described the statute as being "underinclusive" in this way, providing examples of who would and would not be covered by the statute.  As to the third interest asserted by Texas — aligning the state's commercial interests with Israel because it is “one of the few democracies in the Middle East and an ally of the United States and this State" — Judge Pittman essentially found this was not compelling. Texas had argued that “the First Amendment does not prevent restrictions directed at commerce or conduct from imposing incidental burdens on speech,” but Judge Pittman found that this was not an "incidental burden" on speech, but targeted specific speech directly.

Judge Pittman then proceeded to an analysis of the means chosen, although clearly stated that because "H.B. 89 is not justified by any compelling state interest, no amount of narrowing application will preserve it from constitutional attack. But even if Texas’s stated interests were the actual interests advanced by the statute—and even if they were compelling—the Court finds that H.B. 89 still sweeps too broadly."

Judge Pittman's extensive and detailed opinion then found that plaintiffs' additional First Amendment arguments — that the statute is an unconstitutional condition, that it was compelled speech, and that it was unconstitutionally vague — all had merit.

The constitutionality of anti-BDS statutes is being vigorously litigated and Judge Pittman's decision is sure to be appealed. The opinion's perspective on the popularity of anti-BDS statutes is quite interesting:

Twenty five states have enacted similar legislation or issued executive orders restricting boycotts of Israel, and Congress has declared its opposition to the BDS movement, see 19 U.S.C. § 4452. In Texas, only five legislators voted against H.B. 89.  Texas touts these numbers as the statute’s strength. They are, rather, its weakness. “If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.” West Virginia State Bd. of Educ. v. Barnette (1943).

[some citations omitted].

 

 

White House Declines to Make Miller Available for Congressional Testimony

Steven D. Schwinn, John Marshall Law School

The White House today declined to make Steve Miller available to the House Committee on Oversight and Reform for testimony about the President's immigration priorities. This is just the latest chapter in White House defiance of attempts at congressional oversight, in a week when President Trump (remarkably) said that he'd decline to comply with all House subpoenas.

The White House's stated reason for declining to make Miller available is a little different than the stated reasons for not complying with other House committee requests and subpoenas. In particular, the White House wrote, "The precedent for members of the White House staff to decline invitations to testify before congressional committees has been consistently adhered to be administrations of both political parties, and is based on clearly established constitutional doctrines." In other words: White House staff appearing before Congress would violate the separation of powers.

The White House cites a 2014 OLC opinion that concludes that "[t]he Executive Branch's longstanding position, reaffirmed by numerous Administrations of both political parties, is that the President's immediate advisers are absolutely immune from congressional testimonial process." 

That opinion is at odds with Committee on the Judiciary, U.S. House of Representatives v. Miers, the D.C. District court case that held that Harriett Miers was not absolutely immune from congressional testimony. In Miers, the court said that Harlow v. Fitzgerald answered the question. The Court in Harlow denied absolute immunity to "senior White House aides" for civil damages (and instead granted qualified immunity) based on claims like the ones made by the White House in Miers (and here). The D.C. court wrote, "The derivative, 'alter ego' immunity that the Executive requests here due to Ms. Miers's and Mr. Bolton's close proximity to and association with the President has been explicitly and definitively rejected, and there is no basis for reaching a different conclusion here."

But the 2014 OLC memo said that Miers was wrong for two reasons. First, it said that "such a power would threaten the President's 'independence and autonomy from Congress.'" Next, "a congressional power to subpoena the President's closest advisers to testify about matters that would occur during the course of discharging their official duties would threaten executive branch confidentiality, which is necessary (among other things) to ensure that the President can obtain the type of sound and candid advice that is essential to the effective discharge of his constitutional duties." This sounds like an invocation of executive privilege. It wasn't--at least not exactly. The OLC memo went on to explain why allowing testimony, but invoking executive privilege on a question-by-question basis, wouldn't sufficiently protect the executive branch.

So we have competing answers to the question whether "senior White House aides" are entitled to absolute immunity from testimony before Congress, simply by virtue of their proximity to the President. (The current White House letter expands this to "White House staff.") That'll be the question if and when this gets to court.

Call for Proposals: Loyola Chicago Health Law Symposium

The Beazley Institute for Health Law and Policy at Loyola University Chicago School of Law and the Annals of Health Law & Life Sciences invite original submissions for presentations at the Thirteenth Annual Health Law Symposium: Addressing the Health Care Needs of Justice-Involved Populations, at Loyola Chicago, on Friday, November 15, 2019.

The full call is here.

The call specifically includes "constitutional issues relating to the medical treatment [or lack thereof] of justice-involved populations."

Proposals (1,000 words or less) are due by June 15, 2019, to health-law@luc.edu.

House Moves for Injunction to Halt Trump's Reallocation of Funds for Border Wall

Steven D. Schwinn, John Marshall Law School

The House of Representatives yesterday applied for a preliminary injunction to halt President Trump's reallocation of appropriated funds to build a border wall.

The application notes that Congress, not the president, has the appropriations powers, and argues that the president lacks statutory authority to reallocate funds after Congress specifically rejected his request for funding through the appropriations process.

We posted on the similar lawsuit filed by sixteen states here.

There are two statutes at issue. The first, 10 U.S.C. Sec. 284, says that "[t]he Secretary of Defense may provide support for the counterdrug activities . . . of any other department or agency of the federal government" if "such support is requested[] by the official who has responsibility for the counterdrug activities . . . of the department or agency of the Federal Government" for the purposes of "[c]onstruction of roads and fences and installation of lighting to block drug smuggling corridors across international boundaries of the United States." 

The administration already transferred $1 billion that Congress appropriated for other purposes, and it plans to transfer another $1.5 billion. 

The House argues that the Secretary's authority is limited by Section 8005 of the 2019 DOD appropriations act. That section says that the Secretary of Defense may

transfer not to exceed $4,000,000,000 of working capital funds of the Department of Defense or funds made available in this Act to the Department of Defense for military functions (except military construction) between such appropriations or funds or any subdivision thereof . . . : Provided, That such authority to transfer may not be used unless for higher priority items, based on unforeseen military requirements, than those for which originally appropriated and in no case where the item for which funds are requested has been denied by the Congress.

The House argues that under Section 8005 the administration's reallocation is not "for higher priority items, based on unforeseen military requirements"; that the reallocation is not in a case "where the item for which funds are requested has been denied by Congress" (because Congress denied the administrations request for wall funding); and that wall funding is not for "military construction."

The second statute, 10 U.S.C. Sec. 2808, provides that

In the event of a declaration of war or the declaration by the President of a national emergency in accordance with the National Emergencies Act that requires use of the armed forces, the Secretary of Defense . . . may undertake military construction projects . . . not otherwise authorized by law that are necessary to support such use of the armed forces.

The House argues that President Trump's declaration of a national emergency doesn't "require[] the use of the armed forces"; that the wall isn't a "military construction project"; and that the wall isn't "necessary to support [the] use of the armed forces." The House doesn't challenge the president's declaration of an emergency, though.

Third Circuit Upholds Philadelphia's Refusal to Refer Foster Children to Organizations that Discriminates on Basis of Sexual Orientation

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

In its opinion in Fulton v. City of Philadelphia, a unanimous panel of the Third Circuit affirmed the district court's denial of a preliminary injunction against Philadelphia for stopping its referral of foster children to organizations that discriminate on the basis of sexual orientation in their certification of foster parents.

Much of the litigation centers on Catholic Social Services (CSS) which will not certify same-sex couples, even those who are legally married to each other, as foster parents.  Once Philadelphia became aware of the CSS policy, through investigative reporting, the city eventually suspended foster care referrals to CSS in accordance with the city's nondiscrimination policy which includes sexual orientation.  The plaintiffs, including individuals about whom the Third Circuit had standing doubts, sued for a preliminary injunction, which the district judge denied after a three day hearing.  On appeal, the Third Circuit agreed that the plaintiffs had not demonstrated a likelihood of success on their First Amendment claims under the Free Exercise Clause, as well as the Establishment Clause and the Speech Clause.

Writing for the panel, Judge Thomas Ambro wrote that the Free Exercise Clause does not relieve one from compliance with a neutral law of general applicability, which the court found the nondiscrimination law to be.  Unlike Masterpiece Cakeshop Ltd. v. Colorado Civil Rights Commission  and Church of Lukumi Babalu Aye, Inc. v. Hialeah (1993), there was no hostility towards religion evinced in the case.  As the court stated:

CSS’s theme devolves to this: the City is targeting CSS because it discriminates against same-sex couples; CSS is discriminating against same-sex couples because of its religious beliefs; therefore the City is targeting CSS for its religious beliefs. But this syllogism is as flawed as it is dangerous. It runs directly counter to the premise of  [Employment Division v. ] Smith that, while religious belief is always protected, religiously motivated conduct enjoys no special protections or exemption from general, neutrally applied legal requirements. That CSS’s conduct springs from sincerely held and strongly felt religious beliefs does not imply that the City’s desire to regulate that conduct springs from antipathy to those beliefs. If all comment on religiously motivated conduct by those enforcing neutral, generally applicable laws against discrimination is construed as ill will against the religious belief itself, then Smith is a dead letter, and the nation’s civil rights laws might be as well. As the Intervenors rightly state, the “fact that CSS’s non- compliance with the City’s non-discrimination requirements is based on its religious beliefs does not mean that the City’s enforcement of its requirements constitutes anti-religious hostility.”

On the Establishment Clause, Judge Ambro briefly concluded that there was no evidence that Philadelphia was attempting to impose its preferred version of Catholic teaching on CSS.

And in a similarly brief discussion of the free speech claim, Judge Ambro's opinion found there was no viable compelled speech claim or retaliation claim.

Finally, the Third Circuit opinion considered whether there was a possibly successful claim under Pennsylvania's RFRA statute and found that there was little chance of success on the merits, even given the higher standard of review.

This litigation has attracted much interest, with intervenors and amici, and the plaintiffs filed an emergency application to the Supreme Court for an injunction pending appeal or an immediate grant of certiorari in 2018, which was denied.  Another certiorari petition is almost sure to follow the Third Circuit's decision.

 

 

SCOTUS Hears Oral Argument on Census Citizenship Question

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

The United States Supreme Court heard oral arguments  in Department of Commerce v. New York on the issue of whether the decision by Secretary of Commerce Wilbur Ross to include a citizenship question on the main census questionnaire for 2020 is lawful. The constitutional issues in the case include the standing of the challengers and the "actual enumeration" requirements in the Constitution, Art. I, § 2, cl. 3, and Amend. XIV, § 2.  The equal protection argument has seemingly receded into the background. Taking center stage are the nonconstitutional issues centering on the Administrative Procedure Act.

Recall that the case was originally before the Court on an order requiring Secretary Wilbur Ross to submit to a deposition.  However, Recall that in January in New York v. United States Department of Commerce, United States District Judge Jesse Furman decided the case without the Secretary's evidence, finding that without it there was no proof of discriminatory intent sufficient for an equal protection challenge.  Nevertheless, Judge Furman vacated and enjoined the implementation of the decision of Department of Commerce Secretary Wilbur Ross adding a citizenship question to the 2020 census questionnaire, holding that the Secretary's decision violated provisions of the APA, was arbitrary and capricious, and most unusually, pretextual.  

Recall also that in March California v. Ross, United States District Judge Richard Seeborg has found the decision of Secretary of Commerce Wilbur Ross to add a citizenship question to the 2020 census unlawful under the Administration Procedure Act and unconstitutional under the Enumeration Clause.

Arguing for the United States Department of Commerce, Solicitor General Noel Francisco was quickly interrupted by Justice Sotomayor in his very first description of the facts  — that "Secretary Ross reinstated a citizenship question that has been asked as part of the census in one form or another for nearly 200 years" — when she noted that the citizenship question was not part of the short survey that is at issue in the present case.  In short, Solicitor General Francisco's argument was that the Secretary has wide discretion to put whatever questions he'd like on the census for whatever reason.  While Justices Kavanaugh, Gorsuch, Alito, and Chief Justice Roberts seemed sympathetic to this wide discretion, especially in their subsequent questioning, Justices Sotomayor and Kagan characterized the Secretary's decision as a "solution in search of a problem." 

Justice Kagan: . . . [as] Justice Sotomayor was talking about was that it did really seem like the Secretary was shopping for a need. Goes to the Justice Department. Justice Department says we don't need anything. Goes to DHS. DHS says they don't need anything. Goes back to the Justice Department. Makes it clear that he's going to put in a call to the Attorney General. Finally, the Justice Department comes back to him and says: Okay, we can give you what you want.

So you can't read this record without sensing that this -- this need is a contrived one. Nobody had -- there have been lots of assistant attorney general in the Civil Rights Division that have never made a plea for this kind of data.

The Solicitor General of New York (and former Attorney General of New York) Barbara Underwood argued that there was nothing before the Secretary to support the notion that this would assist in making determinations under the Voting Rights Act. Justice Kavanaugh interestingly asked Underwood about United Nations recommendations for citizenship questions, a topic which Douglas Letter came back to during his argument, representing the United States House of Representatives as amicus curiae in support of New York and the other respondents, stating that other nations may not have an "actual enumeration" Clause in their constitutions, and stressing the importance of accurate census data to the House of Representatives given its purpose in representation.

Dale Ho, arguing for New York Immigration Coalition, discussed the intersection between the Voting Rights Act (VRA) and the census, explaining how the Census Bureau alters and approximates information.

Assuming the Court does not reach the constitutional issues, the heart of the case under the APA will be how much deference the Court is willing to afford to the Secretary.  This deference to the Secretary's discretion was interestingly implicated in the argument concerning the question of the Congressional role, with Douglas Letter pointing out that

The Secretary of Commerce has been called before Congress to explain what he did here, and Assistant Attorney General Gore . . .  They have been declining to answer. They're not giving Congress the information it requests because they say there's litigation going on. And, I repeat, this is a matter of public record.

Given recent other matters of public record in which government officials are refusing to come before Congress, more may be at stake in this case than the APA, including separation of powers issues.

Trump Sues to Block Congressional Subpoena for Financial Records

Steven D. Schwinn, John Marshall Law School

President Trump filed suit today to block a House committee subpoena to Trump's accountant, Mazars USA, LLP, for Trump's financial records. The move is a response to House Oversight and Reform Committee Chair Elijah Cummings's April 12 subpoena for records from 2011 to 2018.

The memo supporting the subpoena claims that "[t]he Committee has full authority to investigate whether the President may have engaged in illegal conduct before and during his tenure in office, to determine whether he has undisclosed conflicts of interest that may impair his ability to make impartial policy decisions, to assess whether he is complying with the Emoluments Clause of the Constitution, and to review whether he has accurately reported his finances to the Office of Government Ethics and other federal entities."

President Trump argues in the filing that the subpoena exceeds the Committee's authority, because it is not in furtherance of a "legitimate legislative purpose"; that it violates the separation of powers by seeking to enforce the law, not legislate; and that it's just part of a larger House effort to investigate "anyone with even the most tangential connection to the President" in order to embarrass him. He notes that the time-period covered by the subpoena includes time when he was not yet in office.

In support of his claims, Tump's filing cites Eastland v. U.S. Servicemen's Fund. That's a little surprising, given the deference to Congress that oozes throughout that ruling. Recall that Eastland tested a congressional committee's subpoena of a bank for financial records of a private non-profit, U.S. Servicemen's Fund, that "further[ed] the welfare of persons who have served or are presently serving in the military." The Court ruled that the subpoena was a valid exercise of congressional authority because it fell within the "sphere of legitimate legislative activity," that the Speech and Debate Clause protected against the suit in order to preserve "the integrity of the legislative process by insuring the independence of individual legislators," and that the purposes behind the subpoena didn't matter. Moreover, the U.S. Servicemen's Fund challenged the subpoena under the First Amendment, not just under the separation of powers. The Court said that this challenge "ignores the absolute nature of the speech or debate protection."

Applying well established and deferential standards for congressional investigations and subpoenas--and in particular the Eastland case--to Cummings's subpoena, it's hard to see how Trump wins, at least on his arguments. But winning on the merits may not be the (only) thing that Trump is trying to do. With this move, the administration signals (again) that it's going to fight tooth and nail to resist House Democrats' efforts at oversight, tie them up in court, and even try to run the clock.

Fifth Circuit Rule for Plaintiff in Free Speech Challenge to Sheriff Office Facebook Page

Steven D. Schwinn, John Marshall Law School

The Fifth Circuit ruled earlier this week that a sheriff office's official Facebook page was a public forum; that the office's posting rules were based on the viewpoint of the poster, in violation of the First Amendment; and that the rules constituted official county policy. The ruling reverses a lower court's denial of a preliminary injunction and remands the case for further proceedings. (That is, the case is still at a preliminary stage, though the ruling answers many of the legal questions.)

The case, Robinson v. Hunt County, Texas, tested the Hunt County Sheriff's Office Facebook page. According to the page, "We welcome your input and POSITIVE comments regarding the Hunt County Sheriff's Office." Moreover, "We encourage you to submit comments, but please note that this is NOT a public forum." On January 18, 2017, the HCSO Facebook account posted this message:

We find it suspicious that the day after a North Texas Police Office is murdered we have received several anti-police calls in the office as well as people trying to degrade or insult police officers on this page. ANY post filled with foul language, hate speech of all types and comments that are considered inappropriate will be removed and the user banned. There are a lot of families on this page and it is for everyone[,] and therefore we monitor it extremely closely. Thank you for your understanding.

Robinson and others posted on the page criticizing the policy as a violation of the First Amendment. Robinson's post was removed, and she was banned from the page. She sued individual officers and the county and moved for a preliminary injunction. The district court denied the injunction and later dismissed the case for failure to state a claim.

The Fifth Circuit reversed as to the county. (Robinson didn't appeal as to the individual officers.) The court held that she sufficiently pleaded a constitutional violation, because the defendants' actions constituted viewpoint discrimination in violation of the First Amendment. The court said that the Facebook page was a public forum, and it didn't matter which kind (designated or limited), because either way viewpoint-based discrimination was impermissible. The court held that the policy constituted official policy (for purposes of Robinson's Section 1983 claim against the county), because Robinson "has plausibly alleged that Hunt County had an explicit policy of viewpoint discrimination on the HCSO Facebook page," through the sheriff's official control of the page. 

The court sent the case back for further proceedings.

Ninth Circuit Rebuffs Government's Challenge to California's Sanctuary Laws

Steven D. Schwinn, John Marshall Law School

The Ninth Circuit ruled yesterday that the federal government was unlikely to succeed in its challenge to certain California "sanctuary" laws that protect undocumented immigrants from federal immigration enforcement. The ruling denies the government's motion for a preliminary injunction against these laws. At the same time, the court remanded one particular provision to the lower court for further consideration.

The ruling, while preliminary, is yet another blow to the federal government's efforts to clamp down on sanctuary jurisdictions.

The case, United States v. California, tested three of California's "sanctuary" provisions. The federal government argued that they violated the doctrine of intergovernmental immunity (which prohibits state governments from regulating the federal government) and that federal law preempted them. 

The first, AB 450, prohibits public and private employers in the state from providing consent to an immigration enforcement agent to enter any nonpublic area of their property and to review their employment records without a subpoena or warrant. It also requires employers to provide employees with a notice of inspection by an immigration agency within 72 hours of receiving the notice. The court rejected the government's intergovernmental immunity claim, because "AB 450 is directed at the conduct of employers, not the United States or its agents, and no federal activity is regulated." It rejected the obstacle-preemption argument, because the provision regulates the relationship between employers and their employees, not between federal immigration authorities and the employees they regulate, and therefore it "imposes no additional or contrary obligations that undermine or disrupt the activities of federal immigration authorities." 

The second, AB 103, requires the California attorney general to inspect "county, local, or private" detention facilities where immigrants are housed and to review the conditions of confinement, including the "standard of care and due process provided to" detainees, and "the circumstances around their apprehension and transfer to the facility." The court ruled that the government was unlikely to succeed on its intergovernmental immunity argument as to the provision's burdens that duplicated preexisting inspection requirements, including the due process provision. But it ruled that the government was likely to succeed as to the provision's excessive burdens that fell uniquely on the federal government (the requirement that the state ag examine the circumstances surrounding the apprehension and transfer of immigration detainees). The court ruled that the government was not likely to succeed on the merits of its preemption claim, because "California possesses the general authority to ensure the health and welfare of inmates and detainees in facilities within its borders," and the government failed to show that Congress intended to supersede this authority.

The final provision, SB 54, restricts law enforcement from cooperating with federal immigration authorities in immigration enforcement. The court held that the federal government's preemption claim runs headlong into the Tenth Amendment's anti-commandeering principle. That's because the federal government can't force the state or its officers into participating in federal immigration enforcement, even if "SB 54 may well frustrate the federal government's enforcement efforts." The court rejected the federal government's intergovernmental immunity argument, because accepting that claim "would imply that California cannot choose to discriminate against federal immigration authorities by refusing to assist their enforcement efforts--a result that would be inconsistent with the Tenth Amendment and the anticommandeering rule." Finally, the court ruled that SB 54 does not directly conflict with 8 U.S.C. Sec. 1373, which prohibits state and local governments from prohibiting their officers from communicating with federal immigration officials about the immigration status of any person.

Mueller Affirms that President is Not Above the Law, Even for Official Actions

Steven D. Schwinn, John Marshall Law School

Among its many findings and conclusions, Special Counsel Robert Mueller's report concluded that the Constitution does not prohibit the application of federal obstruction-of-justice laws to the president, even when the president is executing Article II authorities (by terminating FBI Director Comey or by closing an investigation (as an act of prosecutorial discretion)).

In other words: The president is not above the law, or at least this kind of law, simply by virtue of acting as the president.

The conclusion is at odds with claims in a June 23, 2017, letter from President Trump's personal attorney to the the Special Counsel's Office.

The report does not make "a traditional prosecutorial judgment," however, citing "difficult issues that would need to be resolved." These "difficult issues" probably include the hotly disputed question whether a sitting president can be prosecuted. If so, the report may provide an at-least-theoretical path for post-presidential prosecution of Trump.

Using separation-of-powers analysis, Mueller's report, vol. 2, starting at page 168, balances (1) the effect of obstruction-of-justice statutes on the president's ability to perform his Article II responsibilities, (2) whether the obstruction-of-justice statutes are justified by "an overriding need to promote objectives within the constitutional authority of Congress," and (3) "whether the separation-of-powers doctrine permits Congress to take action within its constitutional authority notwithstanding the potential impact on Article II functions."

As to (1), the report says that obstruction-of-justice statutes applied to the president won't "seriously hinder the President's performance of his duties." That's because these statutes "do not aggrandize power in Congress or usurp executive authority. Instead, they impose a discrete limitation on conduct only when it is taken with the 'corrupt' intent to obstruct justice." "The obstruction statutes thus would restrict presidential action only by prohibiting the President from acting to obstruct official proceedings for the improper purpose of protecting his own interests."

As to (2), the report says that Congress acts well within its powers when it outlaws obstruction of justice in order "to protect, among other things, the integrity of its own proceedings, grand jury investigations, and federal criminal trials."

As to (3), the report says that "[a] general ban on corrupt action does not unduly intrude on the President's responsibility to 'take Care that the Laws be faithfully executed," because "the concept of 'faithful execution' connotes the use of power in the interest of the public, not in the office holder's personal interests."

In sum, contrary to the position taken by the President's counsel, we conclude that, in light of the Supreme Court precedent governing separation-of-powers issues, we had a valid basis for investigating the conduct at issue in this report. In our view, the application of the obstruction of justice statutes would not impermissibly burden the President's performance of his Article II functions to supervise prosecutorial conduct or to remove inferior law-enforcement officers. And the protection of the criminal justice system from corrupt acts by any person--including the President--accords with the fundamental principle of our government that "[n]o [person] in this country is so high that he is above the law.

Fourth Circuit Rebuffs Rastafarian-Prisoner's Claim for Communal Feasts

Steven D. Schwinn, John Marshall Law School

The Fourth Circuit ruled today that a Rastafarian prisoner in North Carolina couldn't show that prison officials denied his religious-exercise rights when they rejected his request to celebrate Rastafarian holy days through communal feasts and gatherings. 

The case, Wright v. Lassiter, arose when a Rastafarian prisoner asked for communal feasts as part of his religious practice. When officials declined, he sued, arguing that officials violated his free-exercise rights under RLUIPA and the Free Exercise Clause.

But according to the court there was one problem: The plaintiff was the only Rastafarian, and the only prisoner who would attend the communal feasts and gatherings, in the prison. This meant that the officials didn't cause or impose a substantial burden on his religious exercise (the trigger for both RLUIPA and free exercise claims); instead, the absence of any other Rastafarian did:

Wright's causation problem stems from the fact that he has requested communal gatherings and feasts. There is no such thing as a community of one, and Wright agreed at oral argument tha the was not seeking a feast for himself alone. He therefore had to show that, but for the policies that allegedly prohibit the requested holiday gatherings, other inmates would join in the gatherings. To put it in the negative, if other inmates would not join in his gatherings, then the prison's restrictive policies would not be a factual cause of the burden he claims to have experienced.

Absent causation, the court said, it didn't even need to evaluate under strict scrutiny (under RLUIPA) or rational basis review (under the Free Exercise Clause). 

Seventh Circuit OKs State's "Substantially Similar" Concealed-Carry Licensing Scheme

Steven D. Schwinn, John Marshall Law School

The Seventh Circuit last week rebuffed a challenge to Illinois's law that prohibits residents of states that lack substantially similar licensing standards to even apply for an Illinois concealed-carry license. The ruling keeps Illinois's law on the books. (This is the second time the court ruled on the issue, the same way.)

The case, Culp v. Raoul, involved Second Amendment and related challenges to the reciprocal feature of Illinois's concealed-carry law. Here's how it works:

Illinois residents can apply for and receive a concealed-carry license upon a showing that the applicant isn't a public danger and, for the last five years, hasn't been a patient in a mental hospital, hasn't been convicted of certain crimes, and hasn't participated in a residential or court-ordered drug or alcohol treatment program. The state engages in an extensive background check of each applicant, and a daily check against the Illinois Criminal History Record Inquiry and the Department of Human Service's mental health system.

But for out-of-staters, the law only permits residents of states with substantially similar licensing requirements to apply for an Illinois concealed-carry license. The reason: Illinois authorities don't have access to criminal and mental health records of other states, so can't do the same kind of background check of their residents. At last count, there were just four such states; those states' residents can apply. Residents of all other states can't even apply for an Illinois concealed-carry license.

Residents of non-substantially-similar states sued, arguing that the law violated the Second Amendment, equal protection, and Article IV privileges and immunities. The court rejected those claims.

As to the Second Amendment, the court said that the law permissibly restricted out-of-staters' Second Amedment rights based on an "important and substantial" reason, enforcement of the criminal-history and mental-health standards, and that while it wasn't a perfect fit, it was close enough for intermediate scrutiny:

And the absence of historical support for a broad, unfettered right to carry a gun in public brings with it a legal consequence: the Second Amendment allows Illinois, in the name of important and substantial public-safety interests, to restrict the public carrying of firearms by those most likely to misuse them.

As to equal protection, the court noted that there's no discrimination against out-of-staters, because "Illinois's licensing standards are identical for all applicants--residents and non-residents the same." The court said that any discrimination between different states' non-residents was justified, because "Illinois has demonstrated that the substantial-similarity requirement relates directly to the State's important interest in promoting public safety by ensuring the ongoing eligibility of who carries a firearm in public. Intermediate scrutiny requires no more."

As to privileges and immunities, the court said concealed carry isn't a protected economic interest, and "we are equally unaware of a decision holding that a privilege of citizenship includes a right to engage in the public carry of a firearm, or, even more specifically, the right to carry a concealed firearm in another state." Moreover, the Clause "does not compel Illinois to afford nonresidents firearm privileges on terms more favorable than afforded to its own citizens." 

The court noted that non-residents can still carry and use their firearms in the state. Just not concealed carry.

Judge Manion dissented, arguing that the law was way too rough a cut (both overinclusive and underinclusive) to meet the state's interests. "Illinois has utterly failed to show that banning the residents of an overwhelming majority of the country from even applying for a license is a 'close fit' to its goal."

Trump Vetos WPA Resolution on Yemen

Steven D. Schwinn, John Marshall Law School

As expected, President Trump yesterday vetoed Congress's War Powers Act resolution calling for the removal of U.S. armed forces from hostilities in Yemen that haven't been authorized by Congress. We posted here, with additional links and resources, when the House passed it.

The president's veto message mostly objected to the resolution based on policy. But it contained some constitutional complaints, too:

Since 2015, the United States has provided limited support to member countries of the Saudi-led coalition, including intelligence sharing, logistics support, and, until recently, in-flight refueling of non-United States aircraft. All of this support is consistent with the applicable Arms Export Control Act authorities, statutory authorities that permit the Department of Defense to provide logistics support to foreign countries, and the President's constitutional power as Commander in Chief. . . .

S.J. Res. 7 is also dangerous. The Congress should not seek to prohibit certain tactical operations, such as in-flight refueling, or require military engagements to adhere to arbitrary timelines. Doing so would interfere with the President's constitutional authority as Commander in Chief of the Armed Forces, and could endanger our service members by impairing their ability to efficiently and effectively conduct military engagements and to withdraw in an orderly manner at the appropriate time.

Daily Read: Crawford and Simon on Due Process and Tax at SCOTUS

The United States Supreme Court heard oral arguments in North Carolina Dept of Revenue v. Kimberley Rice Kaestner 1992 Family Trust posing the question of whether a state's taxation of a trust based solely on the residence of a beneficiary violates due process.

Professors Bridget Crawford (pictured left) and Michelle Simon (pictured below) in their article in UCLA Law Review Discourse compellingly argue that the Court should hold that a state has no constitutional authority to impose a tax on trust income where the trust’s only connection with the forum state is the residence of a contingent beneficiary. In The Supreme Court, Due Process and State Income Taxation of Trusts they contend that "Kaestner Trust is the most important due process case involving trusts that the Court has decided in over sixty years; it bears directly on the fundamental meaning of due process."

Crawford and Simon also provide a useful primer on the law and facts relevant to the issues of due process.  They state that for some "lawyers and lucky individuals," a  "list of common verbal triads includes the words 'grantor, trustee, and beneficiary,'" which will be just as familiar as other words that "seem to roll off the tongue naturally in threes" such as tic-tac-toe, snap, crackle, pop; Larry, Curly, and Moe; and peas porridge hot.  However, if one is not one of those "lucky individuals" and perhaps is even a bit shy of trusts and taxation, the article proves itself a patient and trustworthy guide.

The article's well-earned conclusion states:

Justice Harry Blackmun famously said that he knew he was “in the doghouse” with the Chief Justice if he received an assignment to write the opinion in a tax case. But Kaestner Trust is no dog of a case. It broadly implicates basic principles of due process. There are many reasons to allow each state to implement its own tax (and strong arguments in favor of a more uniform approach), but it would be fundamentally unfair to require a trust to pay income tax to a jurisdiction solely on the basis of the residence of a discretionary trust beneficiary who does not actually receive any trust distributions. Once the beneficiary receives trust income, it is reasonable in all respects to subject that income to taxation. The Court’s decision in Kaestner Trust will have lasting impact on the future of due process jurisprudence.

Ultimately, trusts are creatures of legal fiction. They exist because the law tolerates the idea that it is possible to split legal and equitable title to property. Trusts are not the inevitable consequence of some right to control property; their existence reflects the acceptance of the story of split ownership. In the case of trust law, fiction is already strange enough. State income taxation should hew close enough to material reality that a trust is taxed only when the trust has some meaningful connection with the jurisdiction. An accident of fate—such as where a wholly discretionary beneficiary decides to live—should not trigger income taxation.

[footnotes omitted].

A must-read for ConLawProfs seeking to understand Kaestner Trust and for whichever Justice (and clerks) assigned to write the opinion.

Daily Read: Mueller Report and Redactions

As many wait for the Mueller Report now promised for Thursday, questions regarding the redactions mount. Two articles are worth a read.

 Jenessa Calvo-Friedman, writing from the ACLU perspective, argues that The American Public Deserves to See the Mueller Report With as Few Redactions as Possible and outlines the types of possible redactions and arguing that there should be as few redactions as possible.   She concludes that in any event, Congress must see the report without any redaction.

Professor Rick Hasen provides a list for looking at the redacted report, The Seven Things to Look for When Reading the Redacted Mueller Report, with number seven being the ultimate and most difficult:

To what extent does it look like Barr is trying to protect Trump and Trump’s family, such as Donald Trump Jr.? Despite his expected redactions, has Barr made it possible to evaluate Mueller’s reasoning or the evidence collected?

 

SCOTUS Hears Oral Argument on Scandalous or Immoral Trademarks

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

The United States Supreme Court hear oral arguments in Iancu v. Brunetti,  a First Amendment facial challenge to Section 2(a) of the Lanham Act, 15 U.S.C. § 1052(a), which prohibits the Patent and Trademark Office from registering  “immoral” or “scandalous” trademarks. 

Recall that Brunetti's apparel line, named "fuct," was denied a trademark and a divided Federal Circuit Court panel held the provision unconstitutional.  Recall also that the United States Supreme Court in Matal v. Tam (2017) held that the disparagement provision in Section 2(a) of the Lanham Act, 15 U.S.C. § 1052(a) violated the First Amendment, but despite the unanimous conclusion there were fractured rationales.

Indeed, whether or not Tam resolved the issue in Brunetti was a centerpiece of the oral argument, with Justice Sotomayor essentially asking the Deputy Solicitor General, Malcolm Stewart, to distinguish Tam within the first few minutes.  Moreover, some of the unresolved issues in Tam — including the actual role of trademark registration, how trademark registration differs from direct prohibition, whether there could be any content (or viewpoint) basis on which to deny a trademark, and how the trademark program differs from other programs such as municipal advertising or government grants  — reappeared in the Brunetti argument.

The Justices seemed troubled by any argument that the Patent and Trademark Office (PTO) could reject a trademark on the basis that a majority or "substantial segment" of people might find it objectionable, especially given changing morals and issues about which segments of the population (as Justice Ginsburg asked, would this include a composite of 20 year olds).

Justice Breyer was particularly interested in whether the PTO could reject racist trademarks. For Breyer, certain racial slurs  are "stored in a different place in the brain. It leads to retention of the word. There are lots of physiological effect with very few words."  While Malcolm Stewart stated that he thought racial slurs were taken off the table by Tam, in his rebuttal he stated that " with respect to the single-most offensive racial slur, the PTO is currently holding in abeyance applications that incorporate that word" pending the possibility that the present decision could leave open the possibility that that word might be viewed as scandalous.

While many of the other hypotheticals involved profanity, obscenity, or "dirty words" (FCC v. Pacifica), Justice Breyer's concern will surely be addressed by at least one opinion when the decision is rendered in Brunetti.

Daily Read: Federal Judge Carlton Reeves on Attacks on the Judiciary

United States District Judge for the Southern District of Mississippi Carlton Reeves in a speech at the University of Virginia School of Law addressed the critiques of the judiciary and the lack of diversity in judicial appointments.  Judge Reeves recounts a history of the federal bench and equality, with some progress in diversifying the bench, but naming the present state of affairs as the "third great assault on our judiciary."

The written version of the speech includes footnotes, including references to presidential tweets.  In speaking about "this Administration’s judicial nominations, especially those confirmed with the advice and consent of the Senate," Judge Reeves noted:

Of the Article III judges confirmed under the current Administration, 90% have been white. Just one of those judges is black. Just two are Hispanic. It’s not just  about racial diversity. Barely 25% of this Administration’s confirmed judges are women. None have been black or Latina. Achieving complete gender equality on the federal bench would require us to confirm  only 23 women a  year. How hard could that be?  . . . . Think:  in a country where they  make up  just 30% of the population, non-Hispanic white men make  up nearly 70% of this Administration’s confirmed judicial appointees. That’s not what America looks like. That’s not even what the legal profession looks like.

In addition to commenting on the lack of diversity on the United States Supreme Court ("We have as many justices who have graduated from Georgetown Prep as we have Justices who have lived as a non-white person") and the duty of judges to diversify their own hiring of law clerks, Judge Reeves spoke to access to justice issues:

Courts must do more than denounce and diversify. For the attack on the judiciary aims to close the courthouse doors to those who most need justice by shrinking the size, resources, and jurisdiction of courts. Over the last 30 years,while the U.S. population has increased by over 30%; Congress has increased the number of Article III judges by just 3%. Meanwhile, there are continued attempts to close the doors to our own courtrooms. I think of heightened pleading standards, the rise of mandatory arbitration, and judges who proclaim that “prisoner civil rights cases should be eliminated from federal dockets.” Defending the judiciary requires judges to demand, not diminish, the resources they need to find truth. We must expand the reach and power of our courts, offering justice to all who claim the promise of America.

The speech is worth listening to in full:

District Court Tosses Challenge to Capital Post-Conviction Counsel Regs

Steven D. Schwinn, John Marshall Law School

Judge Reggie B. Walton (D.D.C.) ruled that plaintiffs lacked standing to challenge federal regulations that specified a process for certification of state capital counsel in post-conviction proceedings. The ruling means that the regs stay on the books, unless and until a plaintiff who can demonstrate a concrete harm brings a challenge. 

Judge Walton's ruling follows a 2016 Ninth Circuit ruling by similar plaintiffs against the same regs.

The case tests DOJ's 2013 regs to certify state's mechanism for providing counsel to indigent prisoners in state postconviction proceedings. Under the Antiterrorism and Effective Death Penalty Act of 1996, if a state provides a mechanism for counsel, and gets it certified by DOJ, then (1) the capital prisoner gets an automatic stay from execution while postconviction and federal habeas proceedings are pending, (2) the statute of limitations for filing a federal habeas petition is shortened from one year to six months from the date of final judgment of the state courts on direct appeal, and (3) federal courts have to give priority status to the habeas case and resolve it within time periods set by statute.

DOJ implemented regs in 2013 to set standards and a process for DOJ certification of a state mechanism. (Again, certification would trigger the three things above, including the compressed time to file a federal habeas petition.) The regs allow the AG to "determine the date on which the state established its mechanism." And they include a retroactivity provision: "The certification is effective as to the date the Attorney General finds the state established its adequate mechanism; as this date can be in the past, a certification decision may be applied retroactively." 

Under the plain language of AEDPA and the regs, the AG's determination of the certification date--especially a retroactive determination--could throw a serious curve ball at capital attorneys and prisoners in the postconviction pipeline, by suddenly (or even retroactively) shortening their deadline. Even without formal certification (yet), attorneys that represent capital prisoners in postconviction cases have to adjust their practices in accepting new clients.

So when Texas applied for certification, but before it received certification, the Texas Defender Service and individual prisoners sued to halt and set aside the regs. But the court dismissed the case for lack of standing, and lack of ripeness.

Applying Havens Realty Corp. v. Coleman, the court held that

because "TDS's mission is to establish a fair and just criminal justice system in Texas" and a significant aspect of TDS's work includes "represent[ing] death-sentenced prisoners in post[]conviction proceedings in federal court," the 2013 Regulations--particularly the provision allowing for the potential retroactive application of certification--is "'at loggerheads' with [TDS's] mission-driven activities."

But "TDS's position that it has been 'forced to expend substantial resources to prepare its comments [to Texas's petition]' and that its staff 'divert[ed] their attention from their ordinary responsibilities,' fails to satisfy the second prong of injury-in-fact under Havens because TDS has not shown that preparing comments to advocate against Texas's certification was an 'operational cost[] beyond those normally expended to carry out its advocacy mission.'"

As to the individual plaintiffs, the court held that the 2013 regs weren't aimed at them, and that their rights therefore could only "be affected indirectly, if the sentencing state requests certification and if the Attorney General finds that the state's capital-counsel mechanism comports with" the Act and regs. "The 2013 Regulations therefore do not have the coercive impact necessary to confer standing on the individual plaintiffs to bring their preenforcement challenge to the 2013 Regulations."

The court also ruled that the plaintiffs' claims weren't ripe for review.

D.C. Circuit Says Prisoner's Equitable Claims are not Moot, Even After Transfer

Steven D. Schwinn, John Marshall Law School

The D.C. Circuit ruled that a federal prisoner's civil rights claims didn't become moot simply because he was transferred to another prison. The ruling goes against the general principle that a prisoner's "transfer or release from a prison moots any claim he might have had for equitable relief arising out of the conditions of confinement in that prison." According to the D.C. Circuit, that's because this prisoner alleged that he had been subject to the practices in different facilities, and because he alleged a policy or practice of violating regulations that would apply to him in any facility.

The case, Reid v. Hurwitz, arose when federal prisoner Gordon Reid alleged that federal prison officials failed to deliver his magazine subscriptions and deprived him of outside exercise during his repeated stays in the special housing unit, and deprived him of meaningful access to administrative remedies. Importantly, he alleged that with each violation, prison officials cited "BOP policy." Reid sought declaratory, injunctive, and mandamus relief.

The district court dismissed the case, citing the "normal" rule that a prisoner's claims for equitable relief become moot when he or she leaves the prison. But the D.C. Circuit reversed, holding that Reid's harms are "capable of repetition but evading review." The court wrote that Reid alleged that he was in the SHU in different facilities, that he suffered the same harms in different SHUs, and that prison officials gave the same explanation: "policy." Add those up, and you get "capable of repetition but evading review." Here's the court:

The BOP's argument ignores that Reid's complaint identifies not only single instances but also BOP's alleged policy or practice or violating its own regulations to the detriment of Reid. In particular, Reid has alleged three key facts. First, he has been housed at eight different SHUs since 2008. Second, he has suffered a uniform set of deprivations at each SHU that contradict BOP's written regulations. Third, each time he has suffered a deprivation, he alleges that BOP officials justify the deprivations based on "BOP policy." Having been placed in a SHU in myriad different BOP institutions, subject each time to a restriction allegedly imposed under a purported BOP policy or practice contravening BOP regulations, Reid has proffered a logical theory that the challenged actions reasonably will recur despite his current transfer out of the SHU.

***

Both the District Court and the government on appeal have failed to grapple with Reid's claim that he was repeatedly subjected to deprivations in the SHU due to an ongoing policy or practice of the BOP.

At the same time, the court acknowledged that there may be several other reasons for the district court to dismiss the case on remand.

Judge Katsas dissented, arguing that "[w]e should reject Reid's conclusory allegation that BOP has implemented unlawful nationwide policies. And without such unifying policies, the specific disputes alleged here are not capable of repetition."