Constitutional Law Prof Blog

District Court Halts Reprogramming Funds for Border Wall Construction

Steven D. Schwinn, John Marshall Law School

Judge Haywood S. Gilliam, Jr., (N.D. Cal.) issued a permanent injunction on Friday halting the Trump Administration's efforts to reprogram Defense Department funds to construct portions of a border wall. The ruling largely incorporates the court's reasoning from its earlier preliminary injunction.

The court declined to stay the injunction pending appeal. This means that the injunction will stay in place unless and until the Ninth Circuit vacates it.

The court ruled that Trump Administration officials "are enjoined from taking any action to construct a border barrier in the areas Defendants have identified as El Paso Sector 1, Yuma Sector 1, El Centro Sector, and Tucson Sectors 1-3 using funds reprogrammed by DoD under Sections 8005 and 9002 of the Department of Defense Appropriations Act, 2019."

At the same time, the court denied the plaintiffs' request for a declaratory judgment concerning the government's invocation of Sections 8005 and 9002 beyond those sectors, its invocation of Section 284 (but only because it didn't have to rule on this, see below), and its compliance with the National Environmental Policy Act.

The ruling does not stop the Administration from using other, valid sources of funding for the wall. Thus, the ruling does not stop the Administration from using $1.375 "for the construction of primary pedestrian fencing, including levee pedestrian fencing, in the Rio Grande Valley Sector" under the Consolidated Appropriations Act of 2019 (although that funding comes with its own statutory restrictions). It also does not stop the Administration from using "[a]bout $601 million from the Treasury Forfeiture Fund."

But those together don't come anywhere close to the $5.7 billion sought by the President in the CAA process. That's why this ruling is such a blow to the Administration's effort to build a border wall. 

Importantly, the ruling is not based on the President's use of "emergency" power or the President's determination of what's in the "national interest." Instead, the court ruled that the reprogramming violated other statutory provisions.

Here's a quick review of the relevant statutory issues:

Sections 2005, 2009, and 284

Under Section 284, "[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 [such] counterdrug activities." 10 U.S.C. Sec. 284. But the Administration didn't (and doesn't) intend to use appropriated funds under Section 284 for a border wall. Instead, as the court said, "every dollar of Section 284 support to DHS and its enforcement agency, CBP, [for construction of the wall] is attributable to reprogramming mechanisms."

One of those mechanisms is Section 8005 of the 2019 DOD Appropriations Act. That provision authorizes the Secretary of Defense to transfer up to $4 billion "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)." Under the provision, the transfer must be (1) either (a) DOD working capital funds or (b) "funds made available in this Act to the [DOD] for military functions (except military construction)," (2) first determined by the Secretary of Defense as necessary in the national interest, (3) for higher priority items than those for which originally appropriated, (4) based on unforeseen (5) military requirements, and (6) in  no case where the item for which funds are requested has been denied by Congress. 

The court ruled in its earlier order granting a preliminary injunction that the plaintiffs are likely to show that the funds were denied by Congress (because Congress considered, and denied, full funding for the wall); that the transfer is not based on "unforeseen military requirements" (because there was nothing "unforeseen" about this, as evidenced by "the Administration's multiple requests for funding for exactly that purpose dating back to at least early 2018"); and that the Administration's interpretation of Section 8005 would raise constitutional questions (because that interpretation would "authorize[] the Acting Secretary of Defense to essentially triple--or quintuple, when considering the recent additional $1.5 billion reprogramming--the amount Congress allocated to this account for these purposes, notwithstanding Congress's recent and clear actions in passing the CAA, and the relevant committees' express disapproval of the proposed reprogramming," and "reading Section 8005 to permit this massive redirection of funds under these circumstances likely would amount to an 'unbounded authorization for Defendants to rewrite the federal budget'" in violation of the separation of powers). 

In yesterday's order granting a permanent injunction, the court also rejected the Administration's effort to use Section 9002 of the DOD Appropriations Act of 2019 as a mechanism for reprogramming, because "Section 9002 authority . . . is subject to Section 8005's limitations."

Given that the government acknowledged that "all of the money they plan to spend on border barrier construction under Section 284 is money transferred into the relevant account under Sections 8005 and 9002 . . . the Court's ruling as to Sections 8005 and 9002 obviates the need to independently assess the lawfulness of Defendants' invocation of Section 284."

Section 2808

Section 2808 authorizes the Secretary of Defense to "undertake military construction projects, and may authorities the Secretaries of the military departments to undertake military construction projects, not otherwise authorized by law." 10 U.S.C. Sec. 2808. The provision requires that the President first declare a national emergency under the National Emergencies Act. The court previously ruled that "it is unclear how border barrier construction could reasonably constitute a 'military construction project' such that Defendants' invocation of Section 2808 would be lawful." The court incorporated that reasoning into its order granting a permanent injunction. 

NEPA

NEPA requires the government to undertake an environmental impact assessment of agency actions. The court ruled previously that DHS validly waived NEPA's requirements as to the wall, and that the actions therefore don't violate NEPA. It incorporated that reasoning on Friday. 

SCOTUS Remands Census Citizenship Case to Department of Commerce

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

In its highly anticipated opinion 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 Court held that given the "unusual circumstances" of the case, the matter should be remanded to the agency to provide a "reasoned explanation" for its decision pursuant to the Administrative Procedure Act (APA), thus affirming the district court on this point.

Chief Justice Roberts's opinion for the Court is relatively brief — 29 pages — but the brevity is undercut by the shifting alliances within the opinion's sections and the additional 58 pages of opinions concurring in part and dissenting in part. 

Recall the basic issue from oral argument: whether the challengers had standing, the actual enumeration requirements in the Constitution, Art. I, § 2, cl. 3, and Amend. XIV, § 2, and the nonconstitutional issues centering on the Administrative Procedure Act. The equal protection argument receded into the background on appeal, but has re-emerged in other proceedings.

After explaining the facts and procedural history, including the rather unusual question of whether the Secretary of Commerce, Wilbur Ross, should be deposed, the Court unanimously held the challengers had standing, rejecting the government's contrary contention: "we are satisfied that, in these circumstances, respondents have met their burden of showing that third parties will likely react in predictable ways to the citizenship question, even if they do so unlawfully and despite the requirement that the Government keep individual answers confidential."

A majority of the Court, Roberts joined by Thomas, Alito, Gorsuch, and Kavanaugh — held that the Enumeration Clause did not provide a basis to set aside the determination of Wilbur Ross. The majority held that the Constitution vests Congress with virtually unlimited discretion to conduct the census, and that Congress has delegated this broad authority to the Secretary of Commerce.  The majority stated that "history matters" so that "early understanding and long practice" of inquiring about citizenship on the census should control.

A notably different but numerically larger — 7 Justices — rejected the government's contention that the discretion given by Congress to the Secretary of Commerce is so broad as to be unreviewable. There is "law to apply" and the statute provides criteria for meaningful review.  Only Justices Alito and Gorsuch disagreed with this conclusion.

And yet another majority, the same majority as the holding for no claim under the Enumeration Clause — Roberts was joined by Thomas, Alito, Gorsuch, and Kavanaugh — rejected the claim "at the heart of this suit" that Secretary Ross "abused his discretion in deciding to reinstate the citizenship question." Essentially, this majority held that because the statute gives the Secretary to make policy choices and "the evidence before the Secretary hardly led ineluctably to just one reasonable course of action."

That same majority rejected the claim of violations of the APA by Secretary Ross in the collection of information and data, and even if he did so, it was harmless.

Finally, the Chief Justice's opinion for the Court — this time with a majority of Justices Ginsburg, Breyer, Sotomayor, and Kagan, considered the district judge's conclusion that the decision of the Secretary of Commerce, Wilbur Ross, rested on a pretextual basis. The Court's opinion reviewed the evidence presented to the district court:

That evidence showed that the Secretary was determined to reinstate a citizenship question from the time he entered office; instructed his staff to make it happen; waited while Commerce officials explored whether another agency would request census-based citizenship data; subsequently contacted the Attorney General himself to ask if DOJ would make the request; and adopted the Voting Rights Act rationale late in the process. In the District Court’s view, this evidence established that the Secretary had made up his mind to reinstate a citizenship question “well before” receiving DOJ’s request, and did so for reasons unknown but unrelated to the VRA.

After considering other evidence, the Court concluded:

Altogether, the evidence tells a story that does not match the explanation the Secretary gave for his decision. In the Secretary’s telling, Commerce was simply acting on a routine data request from another agency. Yet the materials before us indicate that Commerce went to great lengths to elicit the request from DOJ (or any other willing agency). And unlike a typical case in which an agency may have both stated and unstated reasons for a decision, here the VRA enforcement rationale—the sole stated reason—seems to have been contrived.

We are presented, in other words, with an explanation for agency action that is incongruent with what the record reveals about the agency’s priorities and decisionmaking process. It is rare to review a record as extensive as the one before us when evaluating informal agency action— and it should be. But having done so for the sufficient reasons we have explained, we cannot ignore the disconnect between the decision made and the explanation given. Our review is deferential, but we are “not required to exhibit a naiveté from which ordinary citizens are free.” United States v. Stanchich, 550 F. 2d 1294, 1300 (CA2 1977) (Friendly, J.). The reasoned explanation requirement of administrative law, after all, is meant to ensure that agencies offer genuine justifications for important decisions, reasons that can be scrutinized by courts and the interested public. Accepting contrived reasons would defeat the purpose of the enterprise. If judicial review is to be more than an empty ritual, it must demand something better than the explanation offered for the action taken in this case.

In these unusual circumstances, the District Court was warranted in remanding to the agency . . . .

Thus the Court remanded the decision to the agency for further explanation.  To be sure, this conclusion and section seems inconsistent with the "abuse of discretion" section finding no "abuse of discretion."  And notably, Chief Justice Roberts is the only Justice supporting both of those conclusions.

Also notably, the Court's opinion does not comment on any of the recently revealed evidence or new proceedings - updates shortly.

 

SCOTUS Finds Partisan Gerrymandering Non-Justiciable Political Question

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

In its opinion in Rucho v. Common Cause, consolidated with Lamone v. Benisek, a sharply divided United States Supreme Court decided that the judicial branch has no role to play in challenges to redistricting based upon partisan gerrymandering.

Recall that Rucho involved the constitutionality of partisan gerrymandering in North Carolina. The major question raised by the arguments was whether the courts have any role in protecting voters from partisan gerrymandering; Recall also that in an almost 200 page opinion, the three judge court resolved the issues of justiciability and standing in favor of the plaintiffs and held that the redistricting violated equal protection. 
Recall that Lamone involved the constitutionality of partisan gerrymandering in Maryland. The oral argument centered the First Amendment, but equal protection doctrine did surface in the context of comparing racial gerrymandering which is analyzed under the Equal Protection Clause. 

And also recall that while the Court had previously taken on the issue of partisan gerrymandering, it dodged answering the ultimate question. Today, the Court's 5-4 decision makes that dodge permanent for all federal courts by holding that the questions is a nonjusticiable political question.

Writing for the Court, Chief Justice Roberts — joined by Justices Thomas, Alito, Gorsuch, and Kavanaugh — held that challenges to partisan gerrymandering involve a political question because they lack “judicially discoverable and manageable standards for resolving them, citing Baker v. Carr (1962).  The majority then rejects all the "tests" (quotation marks in original) for resolving the issue. (Recall that Chief Justice Roberts's expressed skepticism about developing standards in the oral arguments on an earlier partisan redistricting case, Gill v. Whitford, calling the political science of redistricting "gobbledygook").  It is not that there is no relief, the majority concludes.  While partisan gerrymandering is "incompatible with democratic principles," as the Court had previously stated in Arizona State Legislature v. Arizona Independent Redistricting Comm’n (2015), and the majority opinion "does not condone excessive partisan gerrymandering," the remedy is in the state courts. Or Congress might pass a law to address the matter, citing as an example the Fairness and Independence in Redistricting Act Bill, although the Court does not express a view on this or other pending proposals.

In dissent, Justice Kagan — joined by Justices Ginsburg, Breyer, and Sotomayor — begins by stating "For the first time ever, this Court refuses to remedy a constitutional violation because it thinks it is beyond its judicial capabilities."  Kagan's impassioned dissent, as long as the majority opinion, and parts of which she read from the bench (a rare practice for her), explains that democracy is at stake and if "left unchecked, gerrymanders like the ones here may irreparably damage our system of government.  The dissenting opinion suggests that the majority has not paid sufficient attention to the constitutional harms at the core of these cases, and discusses the cases, concluding that no one thinks this is how democracy should work, and that in the past the Court has recognized the infringement to individual rights partisan gerrymandering inflicts.  As for standards, the four dissenters argue that courts have developed a framework for analyzing claims of partisan gerrymandering, including the workable standard the three judge courts in Rucho and Lamone used.  As for state courts, Kagan's opinion asks "what do those courts know that this Court cannot? If they can develop and apply neutral and manageable standards to identify unconstitutional gerrymanders, why couldn't we?"

Given that former-Justice Kennedy had a central role in arguing for a First Amendment right to challenge partisan gerrymandering, his retirement and replacement by Justice Kavanaugh made the majority for an opinion that Chief Justice Roberts had seemingly long wanted.

 

Court Strikes State Residency Requirement for Liquor Store Licenses

Steven D. Schwinn, John Marshall Law School

The Supreme Court ruled today in Tennessee Wine and Spirits Retailers Ass'n v. Thomas that Tennessee's 2-year durational-residency requirement for retail liquor store license applicants violates the dormant Commerce Clause and is not saved by the Twenty-first Amendment.

The 7-2 ruling, authored by Justice Alito, is a strong endorsement of the Court's dormant Commerce Clause jurisprudence, which sets limits on states' economic protectionism and discrimination against interstate commerce.

Justice Alito, joined by Chief Justice Roberts and Justices Ginsburg, Breyer, Sotomayor, Kagan, and Kavanaugh, wrote first that the residency requirement violated the dormant Commerce Clause. The Court said that while "[i]n recent years, some Members of the Court have authored vigorous and thoughtful critiques of" the dormant Commerce Clause,

the proposition that the Commerce Clause by its own force restricts state protectionism is deeply rooted in our case law. And without the dormant Commerce Clause, we would be left with a constitutional scheme that those who framed and ratified the Constitution would surely find surprising.

The Court went on to say that Tennessee's 2-year durational-residency requirement "plainly favors Tennesseans over nonresidents" in violation of the doctrine.

As to the Twenty-first Amendment, the Court said that despite "the ostensibly broad text of Section 2 . . . we have looked to history for guidance, and history has taught us that the thrust of Section 2 is to 'constitutionaliz[e]' the basic structure of federal-state alcohol regulatory authority that prevailed prior to the adoption of the Eighteenth Amendment." Under that reading, the Court said that "as recognized during that period, the Commerce Clause did not permit the States to impose protectionist measures clothed as police-power regulations."

In short, "Section 2 cannot be given an interpretation that overrides all previously adopted constitutional provisions," including the dormant Commerce Clause, and therefore Tennessee's residency requirement isn't saved by the Twenty-first Amendment.

Justice Gorsuch, joined by Justice Thomas, dissented. Justice Gorsuch argued that the plain text of the Twenty-first Amendment, the history, and early Court interpretations all point toward permitting state residency requirements:

But through it all, one thing has always held true: States may impose residency requirements on those who seek to sell alcohol within their borders to ensure that retailers comply with local laws and norms. In fact, States have enacted residency requirements for at least 150 years, and the Tennessee law at issue before us has stood since 1939. Today and for the first time, the Court claims to have discovered a duty and power to strike down laws like these as unconstitutional.

Auer Deference, Limited, Hangs On (but Chevron may soon go)

Steven D. Schwinn, John Marshall Law School

In a closely watched administrative law and separation-of-powers case, Kisor v. Wilkie, the Court today declined to overrule Auer v. Robbins, which says that courts should defer to agencies' interpretations of their own ambiguous regulations. At the same time, however, the Court sharply limited its application. As a result, Auer deference hangs on, but in a more (perhaps much more) limited form.

And although the case didn't raise Chevron deference (which says that courts defer to agencies' interpretation of applicable federal law), signs suggest that it's next on the chopping block.

The Court split sharply over whether to overrule Auer. Justice Kagan, joined by Chief Justice Roberts and Justices Ginsburg, Breyer, and Sotomayor on this point, wrote to keep it in place, but limit it. Justice Gorsuch, joined by Justices Thomas, Alito, and Kavanaugh, wrote to overrule it.

Writing for the Court, Justice Kagan wrote that Auer deference depends on a preceding two-step, thus limiting it in future applications. "First and foremost, a court should not afford Auer deference unless the regulation is genuinely ambiguous. If uncertain does not exist, there is no plausible reason for deference." Next, "[i]f genuine ambiguity remains, moreover, the agency's reading must still be 'reasonable.' In other words, it must come within the zone of ambiguity the court has identified after employing all its interpretive tools. . . ." Even then,

[s]till, we are not done--for not every reasonable agency reading of a genuinely ambiguous rule should receive Auer deference. We have recognized in applying Auer that a court must make an independent inquiry into whether the character and context of the agency interpretation entitles it to controlling weight. . . .

To begin with, the regulatory interpretation must be one actually made by the agency. . . .

Next, the agency's interpretation must in some way implicate its substantive expertise. . . .

Finally, an agency's reading of a rule must reflect "fair and considered judgment" to receive Auer deference. . . .

The Court also held that under stare decisis principles, Auer should stay in place.

Chief Justice Roberts joined much, but not all, of the Court's opinion (the portions specifying the limits of Auer deference and upholding Auer under stare decisis) and wrote separately "to suggest that the distance between the majority and JUSTICE GORSUCH is not as great as it may initially appear." Importantly, he also wrote that nothing in today's ruling says anything about the continued validity of Chevron deference: "Issues surrounding judicial deference to agency interpretations of their own regulations are distinct from those raised in connection with judicial deference to agency interpretations of statutes enacted by Congress. [Chevron.]"

Justice Gorsuch, joined by Justices Alito, Thomas, and Kavanaugh, would have overruled Auer. (Indeed, Justice Gorssuch read the majority's ruling to more-or-less do that.)

The four conventional progressives differed sharply from four conventional conservatives (minus Chief Justice Roberts) over the history and reasons for Auer deference, whether Auer deference violates the Administrative Procedure Act, and whether it violates the separation of powers. (On this last point, four conservatives (again, minus Chief Justice Roberts) argued that Auer deference meant that executive agencies were exercising the judicial power, in violation of the separation of powers. The four progressives disagreed.) This means that there's 4-4 split on the Court over these questions, with Chief Justice Roberts declining to join either side (but nevertheless voting to uphold Auer under stare decisis).

Justice Kavanaugh, joined by Justice Alito, wrote separately to agree with Chief Justice Roberts that "the distance between the majority and JUSTICE GORSUCH is not as great as it may initially appear," and that this case doesn't touch on Chevron deference.

CFP: The Nineteenth Amendment at AALS

Call for Papers for
Section on Constitutional Law Program
at the 2020 AALS Annual Meeting

 

The Section on Constitutional Law is pleased to announce a Call for Papers from which one or two additional presenters will be selected to participate in the Section’s program with Professors Steven Calabresi and Reva Siegel and Dean Julie Suk at the AALS 2020 Annual Meeting in Washington, DC.

Form and length of submission: The panel is titled “The Nineteenth Amendment at 100 – Its Contribution and Legacy,” and will explore the Nineteenth Amendment’s role in constitutional interpretation both inside and outside of the courts in the century after suffrage. The Section welcomes relevant submissions. Submissions may take the form of abstracts or more complete drafts, but preference will be given to more developed projects.

Submission method and due date: Submissions should be anonymized. They should include a cover page with the author’s name and contact information. The cover page should be the only part of the submission that includes any identifying information for the author. Submissions should be sent electronically to Professor Lou Virelli at [email protected]. The due date for submissions is Friday, August 30, 2019.

Submission review: Papers will be selected after review by members of the Executive Committee of the Section. The Committee’s review will consider scholarly excellence, as well as new and diverse perspectives on the interpretation of the Nineteenth Amendment. The author(s) of the selected paper(s) will be notified by Friday, September 13, 2019. The Call for Papers presenters will be responsible for paying their conference registration fee and hotel and travel expenses.
Inquiries or questions: All inquiries should be submitted to Lou Virelli at Stetson University College of Law.

Court Strikes Law Criminalizing Possession of Firearm in Connection with "Crime of Violence"

Steven D. Schwinn, John Marshall Law School

The Supreme Court ruled today that a federal criminal law that enhances criminal penalties for using, carrying, or possessing a firearm in connection with any federal "crime of violence or drug trafficking crime" was unconstitutionally vague. The ruling strikes the law.

The case, United States v. Davis, tested the federal law that enhances penalties (over and above a defendant's base conviction) for using, carrying, or possessing a firearm "in furtherance of" any federal "crime of violence or drug trafficking crime." The statute then defines "crime of violence" in two subparts, an "elements clause" and a "residual clause." Under the act, a crime of violence is "an offense that is a felony" and

(A) has as an element the use, the attempted use, or threatened use of physical force against the person or property of another, or

(B) that by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.

The Court ruled the residual clause, (B), unconstitutionally vague.

Justice Gorsuch wrote for the Court, joined by Justices Ginsburg, Breyer, Sotomayor, and Kagan. He started by noting that the vagueness doctrine is designed to protect due process and the separation of powers:

In our constitutional order, a vague law is no law at all. Only the people's elected representatives in Congress have the power to write new federal criminal laws. And when Congress exercises that power, it has to write statutes that give ordinary people fair warning about what the law demands of them. Vague laws transgress both of those constitutional requirements. They hand off the legislature's responsibility for defining criminal behavior to unelected prosecutors and judges, and they leave people with no sure way to know what consequences will attach to their conduct. When Congress passes a vague law, the role of the courts under our Constitution is not to fashion a new, clearer law to take its place, but to treat the law as a nullity and invite Congress to try again.

Justice Gorsuch compared the residual clause to similar language that the Court ruled unconstitutionally vague in Johnson v. United States (defining "violent felony" as a "serious potential risk of physical injury to another") and Sessions v. Dimaya (defining "crimes of violence" for many federal statutes). He rejected the government's argument that the courts should interpret the residual clause on a case-by-case basis (to determine in any individual case whether the crime fit the definition), concluding that reading the act's text, context, and history, the act "simply cannot support the government's newly minted case-specific theory." He also rejected the government's constitutional avoidance argument, "doubt[ing] [that] the canon could play a proper role in this case even if the government's reading were 'possible.'" That's because "no one before us has identified a case in which this Court has invoked the canon to expand the reach of a criminal statute in order to save it."

Justice Kavanaugh dissented, joined by Chief Justice Roberts and Justice Thomas and Alito. Justice Kavanaugh distinguished Johnson and Dimaya, arguing that "[t]hose cases involved statutes that imposed additional penalties based on prior convictions," while "[t]his case involves a statute that focuses on the defendant's current conduct during the charged crime." "The statute here operates entirely in the present[, and] [u]nder our precedents, this statute therefore is not unconstitutionally vague." He also pointed to the statute's impact on crime rates, and many years of application of it:

[One] cannot dismiss the effects of state and federal laws that impose steep punishments on those who commit violence crimes with firearms.

Yet today, after 33 years and tens of thousands of federal prosecutions, the Court suddenly finds a key provision of Section 924(c) to be unconstitutional because it is supposedly too vague. That is a surprising conclusion for the Court to reach about a federal law that has been applied so often for so long with so little problem. The Court's decision today will make it harder to prosecute violent gun crimes in the future. The Court's decision also will likely mean that thousands of inmates who committed violent gun crimes will be released far earlier than Congress specified when enacting Section 924(c). The inmates who will be released early are not nonviolent offenders. They are not drug offenders. They are offenders who committed violent crimes with firearms, often brutally violent crimes.

A decision to strike down a 33-year-old, often-prosecuted federal criminal law because it is all of a sudden unconstitutionally vague is an extraordinary event in this Court. The Constitution's separation of powers authorizes this Court to declare Acts of Congress unconstitutional. That is an awesome power. We exercise that power of judicial review in justiciable cases to, among other things, ensure that Congress acts within constitutional limits and abides by the separation of powers. But when we overstep our role in the name of enforcing limits on Congress, we do not uphold the separation of powers, we transgress the separation of powers.

Chief Justice Roberts did not join the portion of Justice Kavanaugh's dissent that argues that the statute is saved under the unconstitutional avoidance canon.

SCOTUS Declares Lanham Act Provision Barring "Immoral" or "Scandulous" Trademarks Violates First Amendment

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

In its opinion in Iancu v. Brunetti the United States Supreme Court held that 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, violates the First Amendment.

Recall from the oral argument its centerpiece was the applicability of the Court's recent decision in Matal v. Tam (2017) which held that the disparagement provision in Section 2(a) of the Lanham Act, 15 U.S.C. § 1052(a) violated the First Amendment.  Justice Kagan's relatively brief — 11 pages — opinion for the Court begins with a citation to Tam and then states, "We hold that this provision infringes the First Amendment for the same reason: It too disfavors certain ideas."

At issue in Brunetti was a fashion line, which as Kagan explains:

uses the trademark FUCT. According to Brunetti, the mark (which functions as the clothing’s brand name) is pronounced as four letters, one after the other: F-U-C-T. But you might read it differently and, if so, you would hardly be alone. See Tr. of Oral Arg. 5 (describing the brand name as “the equivalent of [the] past participle form of a well-known word of profanity”). That common perception caused difficulties for Brunetti when he tried to register his mark with the U. S. Patent and Trademark Office (PTO).

Justice Kagan's opinion for the Court found the "immoral or scandalous" ban to be viewpoint-based with a viewpoint-discriminatory application. Kagan provides some examples of the inconsistencies, including the PTO refusing to register a trademark "Madonna" for wine while allowing "Praise the Lord" for a game.  Further, the Court stated, the "immoral or scandalous" bar is "overly broad."

Justices Thomas, Ginsburg, Alito, Gorsuch, and Kavanaugh joined in Kagan's opinion. But Alito wrote very briefly separately, disavowing the label of "moral relativism" that might be applied to the Court's opinion and making clear that Congress could adopt a more narrow statute. The other Justices wrote separate opinions concurring in part and dissenting in part.

The major dissenting opinion, by Justice Sotomayor concurring in part and dissenting in part, focuses on the "scandalous" provision, arguing that the Court's opinion means that the United States will have no choice but to begin registering marks "containing the most vulgar, profane, or obscene words and images imaginable." Sotomayor's opinion, joined by Breyer, and echoed in Chief Justice Roberts's opinion also dissenting in part, is longer than the Court's opinion, and argues that the Court should have accepted the narrowing construction of "scandalous" — "interpreting it to regulate only obscenity, vulgarity, and profanity" — which would save it from unconstitutionality. Sotomayor also discusses the special context of trademarks, which while not government speech, do have a type of governmental involvement.  It is not that the speech is being prohibited, but only that the Lanham Act prohibited registration of the trademark.

[image: Kagan and Sotomayor, via]

Industry Group Has Standing to Appeal FOIA Ruling

Steven D. Schwinn, John Marshall Law School

The Supreme Court ruled today in Food Marketing Institute v. Argus Leader Media that an industry group had standing to appeal a lower court's FOIA ruling that would have required government disclosure of information that would have harmed the group's members.

The case arose when Argus Leader Media filed a FOIA request with the USDA for the names and addresses of all retail grocery stores that participate in the national food-stamp program, SNAP, along with each store's annual SNAP redemption data from 2005 to 2010. USDA declined to provide the redemption data, citing FOIA's Exemption 4, which protects "confidential" commercial information. The district court ruled against the agency under the circuit's "substantial harm" test to determine whether information is "confidential." (Under the test, information is protected if its disclosure would create a substantial harm to the competitive position of the person or firm from whom the information was obtained (the participating grocery stores).) USDA declined to appeal, so the Food Marketing Institute stepped in to challenge the ruling.

The Court today ruled that the Institute had standing to appeal. The Court held that disclosure of the requested information would "likely cause some financial injury" to its members, and that a favorable Court ruling would redress that injury. As to Argus's claim that a judicial ruling would simply restore the government's discretion to withhold the data (and thus that redressability was speculative, not a sure thing), the Court said that "the government has represented unequivocally that, consistent with its longstanding policy and past assurances of confidentiality to retailers, it 'will not disclosure' the contested data unless to do so by the district court's order."

The Court went on to abandon the "substantial harm" test (thus lowering the bar on Exemption 4 and making it easier for an agency to withhold information under that Exemption) and to rule in favor of the Institute:

At least where commercial or financial information is both customarily and actually treated as private by its owner and provided to the government under an assurance of privacy, the information is "confidential" within the meaning of Exemption 4. Because the store-level SNAP data at issue here is confidential under that construction, the judgment of the court of appeals is reversed and the case is remanded for further proceedings consistent with this opinion.

SCOTUS Expands Takings Clause Challenges in Closely Divided Opinion

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

In its opinion in Knick v. Township of Scott, Pennsylvania, a closely divided United States Supreme Court held that a person alleging that their property has been taken by state or local governments may sue in federal court without seeking compensation from state courts, overruling Williamson County Regional Planning Comm'n v. Hamilton Bank of Johnson City (1985).

The case was reargued in February 2019 after Justice Kavanaugh joined the Court and his vote made a difference: the majority opinion by Chief Justice Roberts is joined by Justices Thomas, Alito, Gorsuch, and Kavanaugh.  Justice Kagan wrote the dissenting opinion, joined by Justices Ginsburg, Breyer, and Sotomayor.

The facts involve a regulatory taking challenge by the owner of land in rural Pennsylvania which includes a "family cemetery" in the Township of Scott, which had passed an ordinance requiring cemeteries be kept open to the public in daylight hours.  The land owner Rose Mary Knick challenged the ordinance as a taking in state court seeking only declarative and injunctive relief, but not "just compensation."  She thereafter went to federal court, which dismissed her action under the doctrine of Williamson County, which required seeking "inverse condemnation" (and thus "just compensation") in state court, and the Third Circuit affirmed.

Writing for the five Justice majority, Chief Justice Roberts holds that the Fifth Amendment's Taking Clause is violated when the taking occurs and the property owner must be able to bring an action in federal court at that time. The effective establishment of an "exhaustion requirement" in Williamson County  relegates the Takings Clause to a "poor relation" among the Bill of Rights protections, which the majority finds must be remedied by eliminating the requirement to go to state court and therefore "restoring takings claims to the full-fledged constitutional status the Framers envisioned when they included the Clause among other protections in the Bill of Rights."  Chief Justice Roberts's majority opinion explains the bad precedent of Williamson County as resulting from the particular procedural facts under which the "Court may not have adequately tested the logic" of the state-litigation requirement and did not anticipate the "preclusion trap" which later resulted (in which the state court findings would be given preclusive effect by the federal court).  The Court's opinion concludes that Williamson County should be overruled despite stare decisis given these "shaky foundations," adding that the state-litigation requirement has been subject to criticism and has "proved to be unworkable in practice."

Writing the dissenting opinion for four Justices, Justice Kagan argues that it is not simply Williamson County that is being overruled, but rejects longstanding understandings of the Takings Clause. For the dissenters, the text of the Takings Clause is vital: the Clause states that private property shall not be taken for public use without just compensation. Thus, unlike other constitutional rights which the majority also discusses, Kagan argues that a Takings Clause violation has two necessary elements: "First, the government must take the property. Second, it must deny the property owner just compensation." The failure of the majority to recognize the distinctive aspects of the Takings Clause is is the basis of two of Kagan's four critiques of the Court's opinion. The third critique is based on the Court's reinterpretation of precedent, including under the Williamson County rule, which Justice Kagan states is "with a theory so, well, inventive that it appears in neither the petitioner’s nor her 15-plus amici’s briefs." This is an interesting nod to the amicus briefs filed on behalf of Knick which include briefs from Washington Legal Foundation and Congressman Steve King. Lastly, under the federal Tucker Act, involving claims against the federal government seeking just compensation for a taking. 

Perhaps most importantly, Justice Kagan's dissent argues that the consequence of the majority's decision will be to "channel a mass of quintessentially local cases involving complex state-law issues into federal courts." Kagan's opinion highlights the regulatory takings problems (as opposed to the less complex actual taking of property):

This case highlights the difficulty. The ultimate constitutional question here is: Did Scott Township’s cemetery ordinance “go[ ] too far” (in Justice Holmes’s phrase), so as to effect a taking of Rose Mary Knick’s property? Pennsylvania Coal Co. v. Mahon, 260 U. S. 393, 415 (1922). But to answer that question, it is first necessary to address an issue about background state law. In the Township’s view, the ordinance did little more than codify Pennsylvania common law, which (the Township says) has long required property owners to make land containing human remains open to the public. See Brief for Respondents 48; Brief for Cemetery Law Scholars as Amici Curiae 6–26. If the Township is right on that state-law question, Knick’s constitutional claim will fail: The ordinance, on that ac- count, didn’t go far at all. But Knick contends that no common law rule of that kind exists in Pennsylvania. See Reply Brief 22. And if she is right, her takings claim may yet have legs. But is she? Or is the Township? I confess: I don’t know. Nor, I would venture, do my colleagues on the federal bench. But under today’s decision, it will be the Federal District Court for the Middle District of Pennsylvania that will have to resolve this question of local cemetery law.

Justice Kagan also points out that this is the second time in a month that a five member majority [and indeed, the same five member majority] of the Court has overruled "longstanding precedent," quoting from Justice Breyer's dissent in Franchise Tax Bd. of California v. Hyatt.  She writes that "the entire idea of stare decisis is that judges do not get to reverse a decision simply because they never liked it in the first place."

[image via]

 

 

SCOTUS Finds State Cannot Tax Trust Beneficiary's "Income" Consistent With Due Process

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

In its opinion in North Carolina Dept of Revenue v. Kimberley Rice Kaestner 1992 Family Trust the United States Supreme Court unanimously held that a state's taxation of a trust based solely on the residence of a beneficiary — even where the beneficiary did not receive any income — violates due process.

Recall our discussion of the view from Professors Bridget Crawford and Michelle Simon 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," and their discussion of the facts and merits of the case.  They urged the Supreme Court to affirm the conclusion of the North Carolina Supreme Court that the state lacked the power to tax consistent with due process and that's what the Court did.

Justice Sotomayor's succinct 16 page opinion is a model of clarity and analysis. The Court's conclusion clearly rests on the fact that there was no actual income or entitlement to distribution of any income from the trust managed by an out-of-state trustee:

We hold that the presence of in-state beneficiaries alone does not empower a State to tax trust income that has not been distributed to the beneficiaries where the beneficiaries have no right to demand that income and are uncertain ever to receive it. In limiting our holding to the specific facts presented, we do not imply approval or disapproval of trust taxes that are premised on the residence of beneficiaries whose relationship to trust assets differs from that of the beneficiaries here.

The opinion sets out the doctrine:

The Due Process Clause provides that “[n]o State shall . . . deprive any person of life, liberty, or property, without due process of law.” The Clause “centrally concerns the fundamental fairness of governmental activity.”

In the context of state taxation, the Due Process Clause limits States to imposing only taxes that “bea[r] fiscal relation to protection, opportunities and benefits given by the state.” The power to tax is, of course, “essential to the very existence of government,” but the legitimacy of that power requires drawing a line between taxation and mere unjustified “confiscation.” That boundary turns on the “[t]he simple but controlling question . . . whether the state has given anything for which it can ask return.”

The Court applies a two-step analysis to decide if a state tax abides by the Due Process Clause. First, and most relevant here, there must be “‘some definite link, some minimum connection, between a state and the person, property or transaction it seeks to tax.’ ” Second, “the ‘income attributed to the State for tax purposes must be rationally related to “values connected with the taxing State.”’”

To determine whether a State has the requisite “minimum connection” with the object of its tax, this Court borrows from the familiar test of International Shoe Co. v. Washington (1945). A State has the power to impose a tax only when the taxed entity has “certain minimum contacts” with the State such that the tax “does not offend ‘traditional notions of fair play and substantial justice.’” The “minimum contacts” inquiry is “flexible” and focuses on the reasonableness of the government’s action. Ultimately, only those who derive “benefits and protection” from associating with a State should have obligations to the State in question.

[citations omitted]. 

Applying this doctrine to a trust involving an instate resident — whether beneficiary, settlor, or trustee—the Court stated that the

Due Process Clause demands attention to the particular relationship between the resident and the trust assets that the State seeks to tax. Because each individual fulfills different functions in the creation and continuation of the trust, the specific features of that relationship sufficient to sustain a tax may vary depending on whether the resident is a settlor, beneficiary, or trustee. When a tax is premised on the in- state residence of a beneficiary, the Constitution requires that the resident have some degree of possession, control, or enjoyment of the trust property or a right to receive that property before the State can tax the asset.  Otherwise, the State’s relationship to the object of its tax is too attenuated to create the “minimum connection” that the Constitution requires.

Here, where the only instate resident was a beneficiary who did not receive any income and did not have a right to demand any distribution, the "minimum connection" was not sufficient.

Justice Alito wrote a brief concurring opinion, joined by Chief Justice Roberts and Justice Gorsuch, to stress that "the opinion of the Court merely applies our existing precedent and that its decision not to answer questions not presented by the facts of this case does not open for reconsideration any points resolved by our prior decisions" and the "Court's discussion of the peculiarities of this trust does not change the governing standard, nor does it alter the reasoning applied in our earlier cases."

SCOTUS Finds Batson Equal Protection Violation in Flowers v. Mississippi

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

In its opinion in Flowers v. Mississippi, the Court reversed the decision of a divided Mississippi Supreme Court that there was not a violation of the Equal Protection Clause in the selection of jurors under Batson v. Kentucky (1986).

The Court's opinion by Justice Kavanaugh, and joined by Chief Justice Roberts, and Justices Ginsburg, Breyer, Alito, Sotomayor, and Kagan, stressed the "extraordinary facts" of Flowers and stated the decision sought to simply "enforce and reinforce Batson by applying it" here. Indeed, the jury selection at issue was in the sixth trial of Flowers all prosecuted by the same lead prosecutor.  The Mississippi Supreme Court had reversed one conviction for prosecutorial misconduct, had reversed two other convictions for Batson violations, and two other trials had resulted in "hung juries."  The Court concluded that four "critical facts, taken together" led to the conclusion:

• First, in the six trials combined, the State employed its peremptory challenges to strike 41 of the 42 black prospective jurors that it could have struck—a statistic that the State acknowledged at oral argument in this Court. 
• Second, in the most recent trial, the sixth trial, the State exercised peremptory strikes against five of the six black prospective jurors.
• Third, at the sixth trial, in an apparent effort to find pretextual reasons to strike black prospective jurors, the State engaged in dramatically disparate questioning of black and white prospective jurors.
• Fourth, the State then struck at least one black prospective juror, Carolyn Wright, who was similarly situated to white prospective jurors who were not struck by the State.

The Court's opinion rehearsed the Equal Protection Clause doctrine that led to Batson, starting as far back as Strauder v. West Virginia (1880).  The Court relied on its most recent Batson case, also a capital case, Foster v. Chatman (2016), and outlined the types of evidence relevant in a Batson challenge. It then discussed the evidence in detail as guided by the "critical facts" above. While the Court's opinion repeated that the case was "extraordinary" and that it was the combination of facts, Justice Alito wrote separately to stress the "unique combinations of circumstances present" as his reason for joining the Court's opinion.

Justice Thomas dissented in an opinion joined in large part by Justice Gorsuch. In Parts I-III of Thomas's dissenting opinion, joined by Gorsuch, Thomas starts by recounting the crime alleged and then argues that there was "no evidence whatsoever of purposeful race discrimination by the State in selecting the jury during the trial below."  Further: "Each of the five challenged strikes was amply justified on race- neutral grounds timely offered by the State at the Batson hearing. None of the struck black jurors was remotely comparable to the seated white jurors. And nothing else about the State’s conduct at jury selection—whether trivial mistakes of fact or supposed disparate questioning— provides any evidence of purposeful discrimination based on race."  As in the Court's opinion, the dissenting opinion then discusses the facts, drawing different conclusion. Yet these conclusions exist in the shade of Part IV of Thomas's dissenting opinion — the portion Gorusch did not join — criticizing Batson as disregarding limitations on standing and "giving a windfall to a convicted criminal" who "suffered no injury."  Thomas concludes by stating that the "State is perfectly free to convict Curtis Flowers again" and that while the "Court's  opinion might boost its self-esteem, it also needlessly prolongs the suffering of four victims’ families." As the only Black Justice on the Court, Thomas's rejection of Batson is sure to prompt discussion.

 

Nadler Preps to Sue McGahn, Citing Hicks Testimony, Testing Executive Privilege

Steven D. Schwinn, John Marshall Law School

House Judiciary Chair Jerry Nadler is preparing to sue former White House Counsel Don McGahn over McGahn's refusal to testify based on a White House invocation of absolute executive privilege, according to Politico. 

According to Politico's story, Nadler says that Hope Hicks's "blanket refusal to tell lawmakers about her tenure in the West Wing is the real-life illustration Democrats needed to show a judge just how extreme the White House's blockade on witness testimony has become."

We posted on Nadler's dispute with Counsel to the President Pat Cipollone over "absolute executive privilege" in McGahn's case here.

Cipollone asserted the same "absolute executive privilege" over Hicks's testimony this week. Cipollone wrote to Nadler in advance of Hicks's scheduled testimony:

Ms. Hicks is absolutely immune from compelled congressional testimony with respect to matters occurring during her service as senior adviser to the President. . . . That immunity arises from the President's position as head of the Executive Branch and from Ms. Hicks's former position as a senior adviser to the President. "Subjecting a senior presidential advisor to the congressional subpoena power would be akin to requiring the President himself to appear before Congress on matters relating to the performance of his constitutionally assigned functions."

As the Department has recognized, "[w]hile a senior presidential adviser, like other executive officials, could rely on executive privilege to decline to answer specific questions at a hearing, the privilege is insufficient to ameliorate several threats that compelled testimony poses to the independence and candor of executive councils." . . .

Because of this constitutional immunity, and in order to protect the prerogatives of the Office of President, the President has directed Ms. Hicks not to answer questions before the Committee relating to the time of her service as a senior adviser to the President. . . .

Hicks nevertheless testified in a closed hearing this week. (The full transcript is here.) But White House attorneys repeatedly asserted absolute executive privilege in support of Hicks's refusal to answer a host of questions. Here's the first exchange between Nadler and a White House attorney:

Nadler: It's a matter of public record. Why would you object?

Purpura: Mr. Chairman, as we explained in Mr. Cipllone's letter yesterday, as a matter of longstanding executive branch precedent in the Department of Justice practice and advice, as a former senior adviser to the President, Ms. Hicks may not be compelled to speak about events that occurred during her service as a senior adviser to the President. That question touched upon that area.

Nadler: With all due respect, that is absolute nonsense as a matter of law. . . .

According to Politico, Nadler thinks that Hicks's refusal to answer such basic and silly questions as whether an Israel-Egypt war broke out while she worked in government vividly illustrates how extreme the White House's "absolute executive privilege" is--and provides good fodder for the House's lawsuit against McGahn.

Meanwhile, Republicans on the House Oversight Committee issued a Minority Report on the Committee's resolution recommending that the House find AG William Barr and Commerce Secretary Wilbur Ross in contempt for failing to comply with a Committee subpoena for documents related to the addition of the citizenship question on the census. Among other points, the Report argues that the Committee wrongly inferred that the White House waived executive privilege:

As a "fundamental" privilege rooted in constitutional separation of powers, executive privilege ought to be afforded serious consideration. In addition, because an executive privilege waiver should not be lightly inferred, the Committee should be careful in imputing a waiver for failure to comply with Committee Rule 16(c). The Committee's contempt citation errs in concluding unilaterally that executive privilege can be waived when the President does not invoke executive privilege in accordance with Committee rules.

Nondelegation Standard Hangs On (but maybe not for long)

Steven D. Schwinn, John Marshall Law School

The Supreme Court today rejected a nondelegation challenge to a provision in the federal Sex Offender Registration and Notification Act that authorized the Attorney General to "specify the applicability" of the registration requirement under the Act to pre-Act offenders. We last posted on the case--an analysis of the oral arguments--here.

The ruling leaves the nondelegation standard in place, but perhaps not for long. There are three clear votes (Chief Justice Roberts and Justices Thomas and Gorsuch), and probably a fourth (Justice Alito), to reevaluate and tighten up the standard. If Justice Kavanaugh, who was recused from today's ruling, joins those four, the Court will likely take a new approach to nondelegation in coming Terms, and sharply restrict Congress's authority to delegate powers to executive agencies. Depending on the approach, this could take down any number of federal statutes that give discretion to executive agencies.

In short: We still have an "intelligible principle" approach to the nondelegation doctrine, which permits Congress to delegate broad authority and discretion to executive agencies. But that's likely to change soon.

The case, Gundy v. United States, tested SORNA's delegation to the AG as a violation of the separation of powers. In short, Gundy argued that Congress ceded away too much law-making authority to the Executive Branch when it authorized the AG to "specify the applicability" of the Act's registration requirement to pre-Act offenders.

The Court ruled 5-3 (Justice Kavanaugh recused) to uphold the delegation.

Justice Kagan wrote the plurality opinion, joined by Justices Ginsburg, Breyer, and Sotomayor. The plurality said that SORNA's delegation to the AG satisfied the long-standing nondelegation doctrine test--that a congressional act that delegates authority to the Executive Branch with "intelligible principles" does not violate the separation of powers. Justice Kagan wrote that SORNA's delegation provided "intelligible principles," because it only delegated to the AG the power to determine when (but not if) SORNA's registration requirement would apply to pre-Act offenders. She argued that Congress authorized this flexibility because of the possible logistical issues for some pre-Act offenders (those who have been released from prison, e.g.) to register. She wrote that this understanding of the delegation is confirmed by the Act's test and legislative history, and by the Court's interpretation of the delegation in Reynolds v. United States.

Justice Alito concurred in the result, but wrote separately to say that he'd be willing to consider the "intelligible principle" approach to the nondelegation doctrine in an appropriate case.

Justice Gorsuch dissented, joined by Chief Justice Roberts and Justice Thomas. Justice Gorsuch argued that the "intelligible principle" approach to the nondelegation doctrine allows too much congressional delegation to the Executive Branch and violates the separation of powers.

SCOTUS Decides Large Cross on Public Land in Maryland Does Not Violate Establishment Clause

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

In its fractured opinions in The American Legion v. American Humanist Association (consolidated with Maryland-National Park and Planning Commission v. American Humanist Association), a majority of the Court concluded that a 32 foot high "Latin Cross" situated on a traffic island taking up one-third of an acre at the busy intersection of Maryland Route 450 and U.S. Route 1 in Bladensburg, Md., originally erected in 1919 to honor the dead of World War I, does not violate the Establishment Clause.

Recall that during oral argument, one question was whether the cross should be evaluated by applying Lemon v. Kurtzman (1971) or whether it should be deemed more of a "passive monument" under Van Orden v. Perry (2005). Recall also that in the Fourth Circuit decision finding the cross violated the Establishment Clause, the majority found that the passive monument rule of the plurality in Van Orden v. Perry was not conclusive and stressed that the well-established Lemon test remained a "useful guidepost." 

Writing for the majority, Justice Alito's opinion was joined by the Chief Justice, and Justices Breyer, Kagan, and Kavanaugh. However, two portions of Justice Alito's opinion garnered only a plurality: Kagan did not join sections §IIA and §IID, the first essentially involving a critique of Lemon's usefulness and the second relying upon the divided town counsel prayer case of Town of Greece  to conclude that "categories of monuments, symbols, and practices with a longstanding history" are constitutional.  Breyer — who wrote an important concurring opinion in the passive monument case of Van Orden — wrote a separate concurring opinion in which Kagan joined. Justice Thomas concurred in the judgment, again arguing that the Establishment Clause is not incorporated as against the states. Justice Gorsuch also wrote a separate concurring opinion, arguing that the plaintiffs had no standing based on their status as "offended observers" and contending Lemon should be "shelved" and was a "misadventure." While joining Justice Alito's opinion in full, Kavanaugh also concurred separately to reprise a critique of Lemon as inconsistent with by the Court's decisions in five categories of Establishment Clause cases.  Ginsburg wrote a dissenting opinion, joined by Sotomayor.

So what does the majority "hold"? Alito's opinion for the majority concludes that this specific cross "carries special significance in commemorating World War I," which it had at the time of its erection and "acquired additional layers of historical meaning in subsequent years" and has become "part of the community." Certainly, "the cross originated as a Christian symbol and retains that meaning in many contexts," but this "does not change the fact that the symbol took on added secular meaning when used in World War I memorials." Alito's opinion specifically rejected arguments that the cross "disrespected" Jewish or Black veterans, and specifically mentions that "one of the local leaders responsible" for the cross was a "Jewish veteran" and that the memorial includes the names of black and white soldiers. Recall that this had been broached in the oral argument, with Justice Alito asking counsel: "And do you think that the -- that the situation of -- of African Americans in Prince George's County at that time was worse -- was better than the situation for Jews?" 

Justice Ginsburg, dissenting in a 21 page opinion including an appendix of images (including the headstones in a military cemetery, right) joined by Sotomayor, disputed the cross as a secular symbol. "Just as the Star of David is not suitable to honor Christians who died serving their country, so a cross is not suitable to honor those of other faiths who died defending their nation."  Disputing the contention that the Latin cross is a well-established secular symbol commemorating World War I military casualties, Ginsburg relates disputes in the War Department in 1919, arguing that everyone involved "saw the Latin cross as a Christian symbol, not a universal or secular one." A true secular symbol was the "mass-produced Spirit of the American Doughboy statute," of which there was one in Prince George's county, the cross being an "aberration" even at the time.  Ginsburg confronts the slippery slope argument that a contrary decision would eliminate all commemorative crosses by arguing that the in the context of a cemetery, individual markers are acceptable because they convey individuality rather than government endorsement, and that in this case, the solution could be a transfer of the cross to private rather than government property.

The decision leaves lower courts and advocates in the same doctrinal landscape that they inhabited before, although with an even clearer message that longstanding religious monuments with religious symbols, no matter how imposing, will be upheld under the Establishment Clause.

SCOTUS Upholds Virginia's Ban on Uranium Mining

Steven D. Schwinn, John Marshall Law School

The Supreme Court today upheld Virginia's ban on uranium mining against a federal preemption challenge by a mining company. The ruling says that the federal Atomic Energy Act does not preempt Virginia's ban.

The case, Virginia Uranium, Inc. v. Warren, arose when Virginia Uranium sought to mine raw uranium ore from a site near Coles Hill, Virginia. The problem: Virginia law prohibits uranium mining in the Commonwealth. So Virginia Uranium sued, arguing that the ban was preempted under the federal AEA.

The Court ruled 6-3 that the AEA did not preempt the Commonwealth's ban. Justice Gorsuch wrote the lead opinion, joined by Justices Thomas and Kavanaugh. He wrote that the AEA, by its plain terms, regulated milling and waste disposal, but not mining. So the AEA doesn't field-preempt Virginia's ban, and it doesn't obstacle-preempt Virginia's ban. Justice Gorsuch emphasized a textual approach, because, he argued, considering state legislative purposes (in a field preemption analysis) and congressional purposes (in an obstacle preemption analysis) would be fraught with difficulties and uncertainties.

Justice Ginsburg wrote a concurring opinion, joined by Justices Sotomayor and Kagan. She agreed with Justice Gorsuch, but argued that "his discussion of the perils of inquiring into legislative motive sweeps well beyond the confines of this case, and therefore seems to me inappropriate in an opinion speaking for the Court, rather than for individual members of the Court." Moreover, "Virginia Uranium's obstacle preemption arguments fail under existing doctrine, so there is little reason to question, as Justice Gorsuch does, whether that doctrine should be retained."

Chief Justice Roberts dissented, joined by Justices Breyer and Alito. He argued that Virginia sought an end-run around the AEA by banning mining (which the AEA doesn't regulate), but for the purpose of banning milling and waste (which the AEA does regulate).

Thus, the question before us is whether, consistent with the AEA and our precedents, the Commonwealth may purport to regulate a non-preempted field (mining safety) with the purpose and effect of indirectly regulating a preempted field (milling and [waste]). That should have made for an easy case.

Under our AEA precedents, a state law is preempted not only when it "conflicts with federal law," but also when its purpose is to regulate within a preempted field.

SCOTUS Finds Virginia House Lacks Standing to Appeal Racial Gerrymandering

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

In its divided opinion in Virginia House of Delegates v. Bethune-Hill, the Court concluded that the Virginia House of Delegates, one of two chambers in the state legislature, did not have standing to appeal the judgment of the three judge district court that eleven districts in its 2011 redistricting plan were racially gerrymandered and violated the Equal Protection Clause.

Recall that in its previous appearance before the United States Supreme Court, Virginia's 2011 redistricting plan caused the Court to clarify the standard for deciding whether racial considerations in reapportionment violate the Equal Protection Clause. In Bethune-Hill v. Virginia State Board of Elections (2017), the Court affirmed the three-judge court's decision as to one of the districts as constitutionally considering race, but remanded the determination of the constitutional status of the other eleven districts.  It was on this remand that the three-judge court found that these other eleven districts also violated the Equal Protection Clause. 

Recall also that at oral argument, the questions of standing to appeal were intermixed with the factually-intense merits, so that details about the processes leading to the actual redistricting map and its impacts complexified the arguments.

The Court did not reach the merits, but decided the case on lack of standing to appeal. As Justice Ginsburg, writing for the majority, phrased it, after the 2018 three-judge court decision, Virginia decided it "would rather stop than fight on," and Virginia did not appeal. However, the Virginia House of Delegates did pursue an appeal.  Ginsburg — joined by Justices Thomas, Sotomayor, Kagan, and Gorsuch — held that the House of Delegates did not have standing to appeal.

The majority held that the House of Delegates had no standing to represent the interests of the State of Virginia. A State has the authority to designate the entities to represent it and in the case of Virginia it has given this authority exclusively to the state Attorney General.

Further, the majority held that the Virginia House of Delegates did not have standing in its own right, as it did not have a distinct injury. "Just as individual members of Congress do not have standing to assert the institutional interests of the legislature, "a single House of a bicameral legislature lacks capacity to assert interests belonging to the legislature as a whole." The Court also rejected specific injury to the House of Delegates because redrawing district lines would harm it.

Justice Alito, writing the dissenting opinion joined by Chief Justice Roberts, and Justices Breyer and Kavanaugh, argued that the House of delegates did experience specific injury in fact, given that a representative represents a specific set of constituents with specific interests and this would be changed by redistricting. 

The contentious redistricting in Virginia (as well as other states) is not brought any closer to resolution by the Court's decision, but it does mean that Virginia's choice to end this round of the litigation must be a unitary one. 

image: map of Virginia circa 1612 via

High Court Affirms Separate Sovereigns Doctrine

Steven D. Schwinn, John Marshall Law School

The Supreme Court today upheld the "separate sovereigns" doctrine that permits, consistent with double jeopardy, the prosecution of the same person for the same criminal act under state and federal law.

The ruling means that both a state government and the federal government can prosecute the same person for the same crime without running afoul of the Fifth Amendment's prohibition on double jeopardy.

It also means that those subject to federal prosecution in the Mueller investigation can be prosecuted under state law. That's significant, because President Trump can't pardon someone for a violation of state law.

The ruling, Gamble v. United States, grew out of a federal felony-in-possession charge against Terance Gamble after he had been convicted of felony in possession under Alabama law. Gamble argued that the federal charge violated double jeopardy. The Court disagreed.

Justice Alito wrote for the Court, including Chief Justice Roberts and Justices Thomas, Breyer, Sotomayor, Kagan, and Kavanaugh. Justice Alito made it simple:

We start with the text of the Fifth Amendment. Although the dual-sovereignty rule is often dubbed an "exception" to the double jeopardy right, it is not an exception at all. On the contrary, it follows from the text that defines that right in the first place. "[T]he language of the Clause . . . protects individuals from being twice put in jeopardy 'for the same offence,' not the same conduct or actions," as Justice Scalia wrote in a soon-vindicated dissent. And the term "'[o]ffense was commonly understood in 1791 to mean 'transgression,' that is, 'the Violation or Breaking of a Law.'" As originally understood, then, an "offence" is defined by a law, and each law is defined by a sovereign. So where there are two sovereigns, there are two laws, and two "offences."

The Court rejected Gamble's claim that the dual sovereignty doctrine contradicts the common-law rights that the Double Jeopardy Clause was originally understood to protect:

The English cases are a muddle. Treatises offer spotty support. And early state and federal cases are by turns equivocal and downright harmful to Gamble's position. All told, this evidence does not establish that those who ratified the Fifth Amendment took it to bar successive prosecutions under different sovereigns' laws--much less do so with enough force to break a chain of precedent linking dozens of cases over 170 years.

The Court also rejected his claim that "the Double Jeopardy Clause's incorporation against the states washed away any theoretical foundation for the dual-sovereignty rule," because "the premises of the dual-sovereignty doctrine have survived incorporation intact." "Incorporation meant that the States were now required to abide by this Court's interpretation of the Double Jeopardy Clause. But that interpretation has long included the dual-sovereignty doctrine, and there is no logical reason why incorporation should change it."

Justice Thomas wrote a concurring opinion and argued that "the Court's typical formulation of the stare decisis standard does not comport with our judicial duty under Article III because it elevates demonstrably erroneous decisions--meaning decisions outside the realm of permissible interpretation--over the text of the Constitution and other duly enacted federal law." Justice Thomas argued that the Court's strong application of stare decisis to "demonstrably erroneous precedent" means that the Court is making the law, and impermissibly encroaching on the role of Congress in violation of the separation of powers. If there were any doubt, he singled out precedents under substantive due process as examples of "demonstrably erroneous precedent."

Justice Ginsburg dissented, arguing that "[t]he United States and its constituent States, unlike foreign nations, are 'kindred systems,' 'parts of ONE WHOLE'" and that "[w]ithin that 'WHOLE,' the Federal and State Governments should be disabled from accomplishing together 'what neither government [could] do alone--prosecute an ordinary citizen twice for the same offense.'"

Justice Gorsuch also dissented, arguing that "this 'separate sovereigns exception' to the bar against double jeopardy finds no meaningful support in the text of the Constitution, its original public meaning, structure, or history."

SCOTUS: No State Action in First Amendment Challenge to Public Access Channel

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

In its divided opinion in Manhattan Community Access Corporation v. Halleck, a majority of the United States Supreme Court held that the actions of a private nonprofit corporation operating a public access television channel did not constitute sufficient state action warranting application of the First Amendment.

Recall that in the Second Circuit's divided opinion (2018), the majority concluded that the "public access TV channels in Manhattan are public forums and the MCAC's employees were sufficiently alleged to be state actors taking action barred by the First Amendment to prevent dismissal" of the complaint, thus reversing the district judge. Importantly, the public access channels are part of  Time Warner's cable system and Time Warner is a private company.  At the heart of the First Amendment claim are allegations that the Manhattan Community Access Corporation, known as Manhattan Neighborhood Network, MNN, suspended the plaintiffs, Halleck and Melendez, from airing programs over the MNN public access channels because of disapproval of the content.  During oral argument the Justices grappled with the question of doctrines: whether general constitutional state action doctrine applied or whether public forum doctrine under the First Amendment applied or whether there is a convergence of the two doctrines. 

Writing for the majority, Justice Kavanaugh, joined by C.J. Roberts, and Justices Thomas, Alito, and Gorsuch, concluded that general constitutional state action doctrine was the threshold — and determinative — issue.  The Court rearticulated the applicable state action doctrine governing when a private entity can qualify as a state actor as limited to a few circumstances:

(i) when the private entity performs a traditional, exclusive public function (citing Jackson v. Metropolitan Edison Co. (1982));

(ii) when the government compels the private entity to take a particular action (citing Blum v. Yarestsky (1982);

(iii) when the government acts jointly with the private entity (citing Lugar v. Edmondson Oil Co. (1982)).

Interestingly, neither the majority nor dissenting opinion cited Edmonson v. Leesville Concrete Co. (1991), in which a six-Justice majority articulated a test for meeting the state action threshold when there was a private actor involved. 

Justice Kavanaugh's opinion focused on the first circumstance, and stressed that the requirement means that the government must have traditionally and exclusively performed the function.  Given that the relevant function was defined as the "operation of public access channels on a cable system," the Court had little difficulty in concluding that the requirement was not met under a "commonsense principle":

Providing some kind of forum for speech is not an activity that only governmental entities have traditionally performed. Therefore, a private entity who provides a forum for speech is not transformed by that fact alone into a state actor. After all, private property owners and private lessees often open their property for speech. Grocery stores put up community bulletin boards. Comedy clubs host open mic nights.

The majority further rejected the plaintiffs' argument that state action was present because New York City designated MNN to operate the public access channels and New York state heavily regulates public access channels. The majority stated, however, that even where there is a contract or monopoly, the private actor is not converted into a private actor into a state actor "unless the private entity is performing a traditional, exclusive government function."

The majority also rejected the plaintiffs' argument that the public access channels are the "property" of the state of New York rather than the property of the cable network (Time Warner) or of MNN itself. The majority found, however, that "nothing in the franchise agreements" suggests that the city "possesses any property interest" in Time Warner's cable system or in the public access channels operated by Time Warner.  The government could have decided to operate the public access channels itself, in which case that might be different, but that did not happen here.

Dissenting, Justice Sotomayor, joined by Justices Ginsburg, Breyer, and Kagan, argued that the majority misconstrued the case before the Court and this case is actually "about an organization appointed to administer a constitutional public forum" and not simply "about a private property owner that simply opened up its property to others." For the dissenting Justices, when MNN accepted the contractual agency relationship, it "stepped into the City's shoes and thus qualifies as a state actor, subject to the First Amendment like any other."  The dissent argued that MNN was not simply a private actor that "simply sets up shop against a regulatory backdrop," but that it occupies its role because it was asked by New York City to do so, and was deputized by the city to administer the public access channels.  The dissent also argued that the requirement that the private actor be performing a traditional and exclusive function only applies when the "private actor ventures of its own accord into territory shared (or regulated) by the government." Otherwise, the doctor hired to provide medical care to state prisoners would not be a state actor, unlike the Court's unanimous holding in West v. Atkins (1988), because "Nobody thinks that orthopedics is a function 'traditionally exclusively reserved to the State.'"

The Court's divided opinion reveals an established political rift in state action doctrine and theory.  In the penultimate paragraph in Justice Kavanaugh's opinion for the majority, he writes:

It is sometimes said that the bigger the government, the smaller the individual. Consistent with the text of the Constitution, the state-action doctrine enforces a critical boundary between the government and the individual, and thereby protects a robust sphere of individual liberty. Expanding the state-action doctrine beyond its traditional boundaries would expand governmental control while restricting individual liberty and private enterprise. We decline to do so in this case.

On the other hand, Justice Sotomayor for the four dissenting Justices concludes:

This is not a case about bigger governments and smaller individuals; it is a case about principals and agents. New York City opened up a public forum on public- access channels in which it has a property interest. It asked MNN to run that public forum, and MNN accepted the job. That makes MNN subject to the First Amendment, just as if the City had decided to run the public forum itself.

While the majority emphasizes that its decision is narrow and factbound, that does not make it any less misguided. It is crucial that the Court does not continue to ignore the reality, fully recognized by our precedents, that private actors who have been delegated constitutional responsibilities like this one should be accountable to the Constitution’s demands. I respectfully dissent.

Thus, while the decision seems narrow, it could be a harbinger of a narrowing of state action doctrine to release private entities that contract with the state from constitutional constraints unless the entities are performing a traditional and exclusive function of the government, even if the entities are "in the shoes" of the state.

Justice Department Argues that Congress Can't Get Trump's Tax Returns

Steven D. Schwinn, John Marshall Law School

The Office of Legal Counsel late yesterday issued an opinion giving its reasons why the Treasury Department doesn't have to comply with House Ways and Means Committee Chair Richard Neal's request, authorized by federal law, for President Trump's tax returns. We last posted on the controversy here.

The opinion is the culmination of breathtaking efforts by the Trump Administration to protect President Trump's tax returns from the Committee. Why breathtaking? Because federal law says that Treasury "shall furnish" (as in must furnish) the returns upon the request of the Committee Chair.

26 U.S.C. Sec. 6103 says that Treasury "shall furnish" tax-return information "[u]pon written request from the chairman of the Committee on Ways and Means of the House of Representatives." Chair Neal issued the requisite written request, stating that he sought the returns in order to investigate how the IRS audits presidents' tax returns. So far, Treasury declined to turn them over, saying that Chair Neal's request lacks a "legitimate legislative purpose," and that the Office of Legal Counsel would soon elaborate. Yesterday's opinion is that elaboration.

OLC's opinion riffs on Treasury's well worn claim--that Neal's request for the returns doesn't serve a "legitimate legislative purpose," and therefore Treasury can ignore the mandatory language (quoted above) in federal law.

In short, the opinion says that while Chair Neal claimed that he sought the returns to investigate how the IRS conducts audits of presidents (a legitimate legislative purpose), Chair Neal's real reason for requesting the returns is to release them to the public--and that's not a legitimate legislative purpose. The opinion draws on statements by Neal and other Democrats in the prior Congress suggesting that they'd like to publicize President Trump's tax returns when they gain a majority in the House. The memo says that this creates a mismatch between Chair Neal's stated reason for requesting the returns (to investigate how the IRS conducts audits) and his real reason (simply to publicize the President's returns).

The opinion cites several reasons why OLC believes that Chair Neal's stated reasons aren't his real reasons. First, OLC says that Chair Neal didn't also request other information, like IRS audit procedures. Next, it says that Chair Neal requested six years of the President's returns, even though "only the last two years correspond to his time in office." Third, OLC argues that the request focuses on just one taxpayer, President Trump, and not other Presidents and Vice-Presidents. OLC also notes that "the Chairman's request appeared to be 'perfectly tailored' to accomplish the Chairman's long-standing and avowed goal, namely 'to obtain and expose the President's tax returns.'"

Given that the courts are quite deferential to Congress in determining the scope of its own investigation authority, you might wonder where the administration gets off second-guessing Congress's motives. That is: Why does the administration think it can be less deferential to Congress regarding Congress's reasons for conducting an investigation? Here's part of the reason:

Allowing a congressional committee to dictate when Treasury must keep tax information confidential and when it must disclose such information would impermissibly intrude on executive power by ceding control to the Committee over ensuring that section 6103 is implemented in a manner consistent with the constitutional limitations.

Here's the rest:

Separated from the democratic process, the federal courts are not well equipped to second-guess the action of the political branches by close scrutiny of their motivations. . . .

These same limitations do not apply to the Executive Branch, which operates as a politically accountable check on the Legislative Branch. The Founders separated the President from the Congress, giving him "a separate political consistency, to which he alone was responsible," and "the means to resist legislative encroachment" upon his duty to executive the laws. The head of the Executive Branch, who is elected separately from Congress, ultimately must answer to the people for the manner in which he exercises his authority. The separation of powers would be dramatically impaired were the Executive required to implement the laws by accepting the legitimacy of any reason proffered by Congress, even in the face of clear evidence to the contrary. In order to prevent the "special danger . . . of congressional usurpation of Executive Branch functions," we believe that Treasury must determine, for itself, whether the Committee's stated reason reflects its true one or is merely a pretext.

Next step: Look for the Committee to seek to enforce Chair Neal's request in court.