Constitutional Law Prof Blog

Daily Read: Prorogation of Parliament

For American law professors, trying to understand British law developments can be challenging.

The UK House of Commons Library issued an excellent explainer on prorogation in June: a briefing paper that explains what it means to "prorogue" Parliament, under what authority it is done, and what its consequences are, with historical and international context for prorogation, and relevance to the Brexit process.

Briefly, the Prerogative power

is  exercised by the Crown on the advice of the Privy Council. In practice this process has been a formality in the UK for more than a century: the Government of the day advises the Crown to prorogue and that request is acquiesced to.

Prorogation has both immediate and wider constitutional effects. The former effects are relevant to all circumstances in which Parliament is prorogued. The less immediate effects typically take on a greater significance when the period of prorogation is longer.

The paper can be downloaded at the House of Commons here.

 

Daily Read: 1619 Project

The 1619 Project is a unique and accessible look at slavery in the United States — starting in 1619 — and its aftermath.

The muli-faceted project, developed and curated by Nikole Hannah-Jones, appeared as the Sunday New York Times magazine (download here) and is also available as an interactive magazine website. Moreover, the Pulitzer Center’s education team has created curricula from over 30 visual and written pieces from historians, journalists, playwrights, poets, authors, and artists from the project, and although primarily aimed at secondary education, it nevertheless contains a wealth of ideas that could be useful in law school classrooms and scholarship. 

Not suprisingly, the law runs throughout the pieces in the Project. There is an incredible section profiling Howard University School of Law students with their families and ancestors. 

Missouri Federal Judge Finds State Representative Violated First Amendment by Twitter Blocking

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

In his opinion in Campbell v. Reisch, United States District Judge for the Western District of Missouri Brian Wimes found that a state representative violated the First Amendment rights of her constituent when she blocked him from commenting on her tweet on Twitter.

 Judge Wimes largely agreed with Knight First Amendment v. Trump, in which the Second Circuit, affirming the district court opinion, found that President Trump violated the First Amendment rights of those he blocked on Twitter.  Judge Wimes found that the plaintiff's speech was on a matter of public concern; Campbell was disputing a criticism by Representative Reisch arising from Reisch's criticism of her political opponent. Further, Judge Wimes found that the "interactive space" on the Twitter account is a designated public forum. Resich's blocking of the plaintiff because he disagreed with her was viewpoint discrimination prohibited by the First Amendment.

Judge Wimes' opinion considers the "color of state law" requirement under 42 U.S.C. §1983, like the state action requirement, met under this "fact intensive" analysis. The judge stated that the defendant controlled the interactive space of her twitter account in her "capacity as a state legislator." Further, she had " launched her Twitter account alongside her political campaign," her "handle references her elected district, and her Twitter account links to her campaign webpage," the  "image associated with Defendant’s Twitter account is a photo of her on the state house floor," and finally  she "used the Twitter account to tweet about her work as a public official."

Like Trump on Twitter, and the county legislator on Facebook in Davison v. Randall (& Loudoun County) decided by the Fourth Circuit, this opinion is another finding that elected officials cannot "curate" the comment sections on their social media posts. Although there is some authority to the contrary, the strong trend is a warning to warning to elected officials who attempt to silence their critics on social media. 

[image via]

Call for Papers: ACS Junior Scholars Public Law Workshop at AALS

Check it out: The American Constitution Society is seeking paper proposals for its Junior Scholars Public Law Workshop at the 2020 AALS. The deadline is October 18, 2019. Click the link below for more specifics.

Here's the call:

To further its mission of promoting the vitality of the U.S. Constitution and the fundamental values it expresses — individual rights and liberties, genuine equality, access to justice, democracy and the rule of law — ACS is pleased to announce a call for papers for a workshop on public law to be held on Friday, January 3, 2020, in connection with the 2020 AALS Annual Meeting in Washington, D.C. A committee composed of members of ACS’s Board of Academic Advisors will select approximately 10 papers, and each selected author will have the opportunity to discuss his/her paper, as well as the paper of another author, in depth with two experienced scholars from the ACS network, which includes Erwin Chemerinsky, Pamela Karlan, Bill Marshall, Reva Siegel, Mark Tushnet, and Adam Winkler, among others. Papers can be in any field related to public law, including but not limited to: constitutional law, administrative law, legislation, antidiscrimination law, criminal law, election law, environmental law, family law, federal courts, financial regulation, health law, public international law, social welfare law, and workplace law.

For more information: https://www.acslaw.org/get-involved/awards-and-competitions/junior-scholars-public-law-workshop/

Ninth Circuit Retains Injunction Against Trump Asylum Poilcy, but only in Ninth Circuit

UIC John Marshall Law School

The Ninth Circuit on Friday declined to stay a district court injunction against the Administration's "Asylum Eligibility and Procedural Modifications" rule, but limited the injunction to the Ninth Circuit.

The ruling allows the district court to develop a more complete record that would support a nationwide injunction. But at the same time, the motions panel also set a briefing schedule and put the case on the December 2019 argument calendar.

In all, this means (1) that the administration cannot enforce its new asylum rule in the Ninth Circuit (but it can enforce it elsewhere, at least for now), (2) that the district court can nevertheless develop a record that would support a nationwide preliminary injunction, and issue such an injunction, even as the appeal is pending at the Ninth Circuit, and (3) the case will go to the Ninth Circuit on the merits later this year.

The court started by noting that the Administration has "not made the required 'strong showing' that they are likely to succeed" on its claim that the district court erroneously concluded that the asylum policy likely violated the Administrative Procedure Act. It went on to say, though, that the record before the district court didn't justify a nationwide injunction:

Here, the district court failed to discuss whether a nationwide injunction is necessary to remedy Plaintiffs' alleged harm. Instead, in conclusory fashion, the district courts stated that nationwide relief is warranted simply because district courts have the authority to impose such relief in some cases and because such relief has been applied in the immigration context. The district court clearly erred by failing to consider whether nationwide relief is necessary to remedy Plaintiffs' alleged harms. And, based on the limited record before us, we do not believe a nationwide injunction is justified.

Judge Tashima dissented, arguing that the majority impermissibly parsed the district court record to reconsider the nationwide injunction, and that the briefing and argument order is in tension with the district court potentially developing a record that permits a nationwide injunction.

The order comes as the practice of issuing nationwide injunctions, in general, is under increased scrutiny. The Ninth Circuit's approach here is cautious with regard to a nationwide injunction, but at the same time it leaves open plenty of room for the district court to develop a more complete record that would support such an injunction. And the panel held no punches when it said that the Administration hasn't made the "strong showing" required to stay the district court's injunction.

SCOTUS Theater Event NYC August 18

Theatrical Performance featuring readings from

Rucho v. Common Cause

Department of Commerce v. New York

&

Flowers v. Mississippi

A panel discussion afterwards with Ari Ezra Waldman,  Perry Grossman  &  Ruthann Robson

 

More info and benefit tix here

Check it Out: Blackman and Tillman on Wall Funding, Emoluments, and Courts' Equitable Jurisdiction

Check out Josh Blackman and Seth Barrett Tillman's piece at The Volokh Conspiracy on why the federal courts lack equitable jurisdiction in the border wall funding case and the emoluments challenge. In short: The plaintiffs don't state a cause of action (that would have been available under the equitable jurisdiction of the High Court of Chancery in England in 1789).

Blackman and Tillman elaborate on the argument (and others) in this amicus brief, in the Fourth Circuit emoluments case.

Here's from Volokh:

In order to invoke a federal court's equitable jurisdiction, Plaintiffs cannot simply assert in a conclusory fashion that the conduct of federal officers is ultra vires, and, on that basis, seek equitable relief. "Equity" cannot be used as a magic talisman to transform the plaintiffs into private attorneys general who can sue the government merely for acting illegally. Rather, in order to invoke the equitable jurisdiction of the federal courts, plaintiffs must put forward a prima facie equitable cause of action.

***

A plaintiff's mere request for equitable or injunctive relief does not invoke a federal court's equitable jurisdiction.

***

[Otherwise, plaintiffs' approach] would open the courthouse door to every plaintiff with Article III standing, who asserts that a federal official engaged in illegal conduct.

Ninth Circuit Rejects Challenge to Electioneering Disclosure Requirement

Steven D. Schwinn, John Marshall Law School

The Ninth Circuit ruled yesterday in National Association for Gun Rights, Inc. v. Mangan that Montana's electioneering disclosure requirements did not violate the First Amendment. The ruling keeps the requirements in place.

The Supreme Court has upheld disclosure requirements against First Amendment challenges, and so this ruling is really unremarkable. But at the same time it represents one in the next set of First Amendment challenges to campaign finance laws designed to spur this new Court to strike even more ways that government tries to regulate money in politics.

The case arose when the National Association for Gun Rights sought to spend more than $250 on an "electioneering communication." Montana law requires that any such organization register as a political committee. And such registration, in turn, subjects the group to requirements to disclosure expenditures.

The Association argued that the state's definition of electioneering communication was facially overbroad and unconstitutional as applied to it. In particular, the Association said that the First Amendment permits states to require disclosure only of express advocacy for or against a specific candidate, not the kind of general information that it sought to distribute.

The Ninth Circuit rejected the challenge. The court said that disclosure requirements are valid, even as to non-express-advocacy communications, because, under "exacting scrutiny," they are designed to promote the state's interests in transparency and discouraging circumvention of its electioneering laws.

D.C. Circuit Says Diversity Visa Case Not Moot (even after Trump v. Hawaii)

Steven D. Schwinn, John Marshall Law School

The D.C. Circuit ruled today in Almaqrami v. Pompeo that plaintiffs' claim against the government for denying them "diversity visas" was not moot, even though the plaintiffs are from countries covered by President Trump's travel ban, upheld under Trump v. Hawaii. The ruling sends the case back to the district court for a decision on the merits. By the plaintiffs' own reckoning, however, even a win (alone) wouldn't guarantee their admittance to the United States.

The plaintiffs, nationals of Iran and Yemen, won the 2017 diversity visa lottery. But they were denied visas pursuant to a State Department Guidance Memo, instructing consular officers about how to evaluate diversity visa applications in light of Trump v. Int'l Refugee Assistance Project (the Court's earlier ruling allowing President Trump's executive order (2) to take effect while the Court considered appeals of the preliminary injunctions against the travel ban). They sued, arguing that the relevant section of the Immigration and Nationality Act authorized the President to restrict only entry, not visas, and that their denial violated the INA provision that bans discrimination by nationality.

Just before the end of Fiscal Year 2017, the district court ordered State to "hold those [unused diversity] visa numbers to process [p]laintiffs' visa applications in the event the Supreme Court finds [EO-2] to be unlawful." (Recall that the President replaced EO-2 with the (third) version of the travel ban that ultimately went to the Court.)

After the Court upheld the travel ban in Trump v. Hawaii, the government moved to dismiss the case as moot, arguing that EO-2 and the guidance memo under which the consular officers denied the plaintiffs visas were now expired, and that the district court's order was conditioned on the Court ruling that EO-2 was unlawful (which didn't happen).

The district court accepted this argument and dismissed the case as moot, but the D.C. Circuit reversed.

The D.C. Circuit ruled that because the district court issued its order before the end of Fiscal Year 2017, it could still grant relief to the plaintiffs (by ordering State to grant the visas). As to that language that seems to condition relief on the Court striking the travel ban (which of course it didn't), the D.C. Circuit said that the district court's order could be read to mean (1) that State must hold unused diversity visas to enable a later court judgment and (2) that a specific judgment would issue if the Court ruled a certain way. (1) allows the district court to order State to issue the visas; (2) would've required it.

Moreover, the court said that the plaintiffs could still get the relief they sought. That's because the district court might agree with them that the travel ban only applied to entry, not visas, and that the INA prohibits discrimination in issuing visas by nationality--even under Trump v. Hawaii. The court didn't opine on those questions, however; instead, it sent the case back to the district court for a ruling on them.

A win in the district court (or on appeal) could mean that the plaintiffs get their visas, and even get consideration under exceptions to the travel ban. But actual entry will require more: a decision that they meet an exception to the travel ban.

Call for Papers: Barry Con Law Scholars Forum

The Barry University School of Law American Constitution Society Student Chapter and Law Review and the Texas A&M University School of Law just issued a Call For Papers for their 2020 Constitutional Law Scholars Forum.

The full call is here.

The Forum is on Friday, February 28, 2020, in Orlando. The proposal deadline is December 1, 2019.

District Court Rules Brewer's Government Shutdown Claim Moot

Steven D. Schwinn, John Marshall Law School

Judge Christopher R. Cooper (D.D.C.) dismissed as moot a case by Atlas Brew Works arguing that the government's inability to approve its beer label during the government shutdown earlier this year violated its First Amendment right to free speech. In particular, Judge Cooper ruled that Atlas's claim didn't meet the mootness exception for cases that are "capable of repetition but evading review."

The case, Atlas Brew Works v. Barr, arose during the government shutdown, when, because of a lack of appropriated funds, the Alcohol and Tobacco Tax and Trade Bureau (in Treasury) couldn't approve Atlas's pending application for a label, as required by the Federal Alcohol Administration Act. (The FAA requires Bureau approval of a label before a brewer can distribute its beer in interstate commerce. It provides criminal penalties for violators.) Atlas filed suit, arguing that the government's failure to approve its pending label infringed on its right to free speech, because the lack of approval meant that it couldn't legally distribute its seasonal beer, which, without an approved label, would go stale. (Atlas put it this way: "[i]t cannot be denied the right to speak for lack of meeting an impossible condition.") Atlas sought a temporary restraining order and preliminary injunction preventing the Justice Department from enforcing the FAA's criminal sanctions against it.

Once the shutdown ended, the government moved to dismiss the case as moot. Yesterday, the court agreed.

The court ruled first that Atlas's claim couldn't survive as a challenge to the government's policy, because, in short, there's no ongoing policy behind the shutdown that would infringe on Atlas's free speech.

The court ruled next that Atlas's claim was not capable of repetition but evading review. Judge Cooper explained:

To recap the boxes that must be checked for this dispute to recur: a lapse in appropriations must happen; the lapse must affect the Treasury Department; the lapse must last long enough to actually cause a shutdown; Treasury must respond to the shutdown by shuttering the [beer-label approval process under the FAA]; and Atlas must have a [label] application pending at the time the shutdown begins or file one shortly thereafter. In the Court's view, the combination of these contingencies takes this case beyond the limits of the capable-of-repetition exception to mootness.