Constitutional Law Prof Blog

Federal Judge Enjoins North Carolina's Voter-ID Law

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

In her opinion in North Carolina State Conference of the NAACP v. Cooper, Judge Loretta Biggs of the Middle District of North Carolina issued a preliminary injunction against North Carolina’s voter ID-requirements, known as S.B. 824.

Judge Biggs found that plaintiffs’ claim that SB 824 violated the Fourteenth Amendment’s Equal Protection Clause had a likelihood of success. Although the voter-ID law was facially neutral, Judge Biggs found that it enacted a racial classification. As she explained, in Village of Arlington Heights v. Metro. Housing Dev. Corp. (1977),

the Supreme Court set forth a non-exhaustive list of factors to guide this delicate investigation. Reviewing courts should consider: (1) the law’s historical background; (2) the specific sequence of events leading up to the law’s enactment, including any departures from normal legislative procedure; (3) the law’s legislative and administrative history; and (4) whether the law’s effect “bears more heavily on one race than another.” The Court further cautioned that, because legislative bodies are “[r]arely . . . motivated solely by a single concern,” a challenger need only demonstrate that “invidious discriminatory purpose was a motivating factor.” (emphasis added). “[T]he ultimate question,” then, is whether a law was enacted “because of,” and not “in spite of,” the discriminatory effect it would likely produce.

Applying the Arlington Heights factors, Judge Biggs found that the “historical background” of the law “weighs in favor of a finding of discriminatory intent with respect to S.B. 824’s enactment”:  “North Carolina has a sordid history of racial discrimination and voter suppression stretching back to the time of slavery, through the era of Jim Crow, and, crucially, continuing up to the present day.”

On the “sequence of events,” Judge Biggs found the record “mixed.” While the  “parliamentary requirements” were met, when “viewed with a wider lens, the circumstances surrounding S.B. 824 are unusual.” A majority of the Republican legislators who supported a previous bill on voter-ID declared unconstitutional by the Fourth Circuit “also voted for S.B. 824, and the same legislative leaders spearheaded both bills. "Further,she found it noteworthy that "those legislators were elected, at least in part, by way of district maps which were declared unconstitutional." Additionally, "after voters ratified the voter-ID amendment, S.B. 824 was enacted along (virtually) strict party lines and over the Governor’s veto.”

As to the legislative history, including statements, Judge Biggs considered the statements of legislators after the previous bill was declared unconstitutional as well as changes proposed or adopted, and “the decision not to include public-assistance IDs as an acceptable form of identification,” despite the Fourth Circuit’s criticism.  

Finally, Judge Biggs concluded that there was (or was likely to be) a racially disparate impact. Examining the specific provisions of the bill, including what types of identification were accepted and which were not:

the important metric for the Court’s purposes isn’t so much the variety of IDs as how readily they are possessed by North Carolinians of different backgrounds. In this sense, what is most striking about the state’s newly expanded list of IDs is that it continues to primarily include IDs which minority voters disproportionately lack, and leaves out those which minority voters are more likely to have.

One example was federal government identification, which was excluded. For Judge Biggs, these disparate types of identification mean not only that “minority voters will bear this effect more severely than their white counterparts,” but also that “a disproportionate number of African American and Hispanic” North Carolina citizens “could be deterred from voting or registering to vote because they lack, or believe they lack, acceptable identification and remain confused by or uninformed about S.B. 824’s exceptions.”

Thus, Judge Biggs found that the law was racially motivated. She further found that it was not supported by any of the proffered government interests.

Given that the Governor had vetoed this bill and the Fourth Circuit's decision holding a previous similar law unconstitutional, the prospects for an appeal will certainly be closely monitored.

Ninth Circuit Says Public Union Not Retrospectively Liable for Mandatory Dues

Steven D. Schwinn, UIC John Marshall Law School

The Ninth Circuit ruled last week in Danielson v. Inslee that a public sector union is not liable for mandatory union dues paid before the Supreme Court struck mandatory union fees in Janus. The ruling follows a similar one in the Seventh Circuit.

Recall that the Supreme Court ruled in 2018 in Janus v. AFSCME that public sector unions could not collect mandatory fair-share fees (fees used for collective bargaining activities) consistent with the First Amendment. The ruling overturned the 1977 case Abood v. Detroit Board of Education, which upheld mandatory fees against a First Amendment challenge.

After Janus, public sector unions stopped collecting the fees. But some public sector employees sued for pre-Janus fees paid. That's what happened in the Seventh Circuit, which led that court to hold that unions weren't on the hook for pre-Janus fees. And it's what happened in the Ninth Circuit, too.

The Ninth Circuit held that the union could invoke a good-faith defense against the plaintiffs' claims, relying on the pre-Janus state of the law to continue to collect mandatory fair-share fees. As to the strong hints from the Court even before 2018 that fair-share fees were on the chopping block, the Ninth Circuit said,

Although some justices had signaled their disagreement with Abood in the years leading up to Janus, Abood remained binding authority until it was overruled. We agree with our sister circuit that "[t]he Rule of Law requires that parties abide by, and be able to rely on, what the law is, rather than what the readers of tea-leaves predict that it might be in the future."

The Supreme Court has admonished the circuit courts not to presume the overruling of its precedents, irrespective of hints in its decisions that a shift may be on the horizon.

Ninth Circuit Refuses to Stay Injunction Against Trump's Immigration Health-Care Requirement

Steven D. Schwinn, UIC John Marshall Law School

The Ninth Circuit last week refused to grant an emergency temporary stay of a district judge's temporary injunction against enforcement of President Trump's October 4 Proclamation that restricts entry into the United States by aliens "who will financial burden the United States healthcare system." The ruling means that the lower court's injunction stays in place, and the government cannot enforce the Proclamation. The court expedited review of the government's motion for a stay pending appeal, however, and will hear oral argument on January 9.

President Trump's proclamation, titled "Presidential Proclamation on the Suspension of Entry of Immigrants Who Will Financially Burden the United States," requires aliens to show proof of approved health insurance before getting a visa or otherwise entering the United States. Plaintiffs sued, arguing that the Proclamation exceeded the President's authority under law, that the President therefore engaged in impermissible lawmaking in violation of the separation of powers, and that the law impermissibly delegated lawmaking authority to the President in violation of the nondelegation doctrine. The district court agreed and issued a temporary injunction against enforcement of the Proclamation.

The Ninth Circuit most recently denied the government's request for an emergency temporary stay. The court wrote,

Here, the status quo would be disrupted by granting the temporary stay request. Therefore, we deny the request for a temporary stay. The Proclamation has not yet gone into effect. The changes it would make to American immigration policy are major and unprecedented; the harms the government alleges it will suffer pending review of the motion for stay pending appeal are long-term rather than immediate. Our ruling is based solely on the absence of a sufficient exigency to justify changing the status quo, particularly during the few weeks before scheduled oral argument on the merits of the emergency motion; we do not consider the merits of the dispute in any respect.

The court went on to expedite briefing and oral argument on the government's motion for a stay pending appeal.

Judge Bress dissented, arguing that "the district court's decision is clearly wrong as a matter of law." According to Judge Bress, "[i]n the supposed name of the separation of powers, the district court struck down part of a longstanding congressional statute, invalidated a presidential proclamation, and purported to grant worldwide relief to persons not before the court. And it did so based on the nondelegation doctrine--among the most brittle limbs in American constitutional law--and a reading of 8 U.S.C. Sec. 1184(f) that the Supreme Court expressly rejected in Trump v. Hawaii.

Ninth Circuit Says State Waives Immunity from Non-Abrogated Federal Claims When it Removes

Steven D. Schwinn, UIC John Marshall Law School

The Ninth Circuit ruled this week in Walden v. State of Nevada that a state waives its Eleventh Amendment immunity when it removes a case based on federal claims from state to federal court, even when Congress hasn't abrogated immunity for those federal claims. The ruling means that the state of Nevada must defend a federal Fair Labor Standards Act case in federal court, after it removed the case from state court.

The ruling extends Supreme Court and circuit precedent to extend waiver by removal.

The case arose when correctional officers sued the state in state court for FLSA violations. The state removed to federal court and moved to dismiss based on state sovereign immunity.

The Ninth Circuit held that by removing, the state waived its Eleventh Amendment immunity. The court noted that the Supreme Court ruled in Lapides v. Board of Regents that a state waives Eleventh Amendment immunity when it removes a case involving state-law claims over which it previously waived immunity in state court. It further noted that circuit law extended Lapides to certain federal law claims--those involving federal law where Congress validly abrogated state sovereign immunity.

Walden extends the principle one step further, to a federal claim (the FLSA) where Congress did not abrogate state sovereign immunity. "Even though [circuit law] expressly left open the question whether removing a State defendant remains immunized from certain federal claims like those under the FLSA, [the] strong preference for a straightforward, easy-to-administer rule supports our holding that removal waives Eleventh Amendment immunity for all federal claims."

SCOTUS to Hear Ministerial Exception Cases

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

The United States Supreme Court granted certiorari to two Ninth Circuit cases and consolidated them: Our Lady of Guadalupe School v. Morrisey-Berru and St. James School v. Biel. 

Both cases involve an application of the First Amendment's "ministerial exception" first accepted by the Court in 2012 in Hosana-Tabor Evangelical Lutheran Church and School v. EEOC.  In the unanimous decision in Hosanna-Tabor, the Court found that the school teacher Cheryl Perich was tantamount to a minister. Thus, under both Religion Clauses of the First Amendment, as a "minister" her employment relations with her church school employer were eligible for a "ministerial exception" to the otherwise applicable employment laws, in that case the Americans with Disabilities Act. 

But who is a "ministerial" employee subject to the exemption from employment laws?

Chief Justice Roberts' opinion for the Court in Hosanna-Tabor declined to provide a test for deciding whether or not an employee was within the ministerial exception. However, the Court did extensively analyze Cheryl Perich's employment. And the lower courts have been struggling with how to analogize to the Court's conclusions regarding the "called teacher" Perich.

In the unpublished and very brief panel opinion in Morrisey-Berru, the court stated that the Court in Hosanna-Tabor considered four factors in analyzing whether the exception applied:

• (1) whether the employer held the employee out as a minister by bestowing a formal religious title;
• (2) whether the employee’s title reflected ministerial substance and training;
• (3) whether the employee held herself out as a minister; and
• (4) whether the employee’s job duties included “important religious functions.”

Applying those factors, the Ninth Circuit panel stated:

Considering the totality of the circumstances in this case, we conclude that the district court erred in concluding that Morrissey-Berru was a “minister” for purposes of the ministerial exception. Unlike the employee in Hosanna-Tabor, Morrissey-Berru’s formal title of “Teacher” was secular. Aside from taking a single course on the history of the Catholic church, Morrissey-Berru did not have any religious credential, training, or ministerial background. Morrissey-Berru also did not hold herself out to the public as a religious leader or minister.

Morrissey-Berru did have significant religious responsibilities as a teacher at the School. She committed to incorporate Catholic values and teachings into her curriculum, as evidenced by several of the employment agreements she signed, led her students in daily prayer, was in charge of liturgy planning for a monthly Mass, and directed and produced a performance by her students during the School’s Easter celebration every year. However, an employee’s duties alone are not dispositive under Hosanna-Tabor’s framework. See Biel v. St. James Sch. (9th Cir. 2018). Therefore, on balance, we conclude that the ministerial exception does not bar Morrissey-Berru’s ADEA claim.

Biel, relied upon in Morrisey-Berru's unpublished opinion, was much more contentious. Reversing the district court, the Ninth Circuit panel's opinion in Biel similarly considered four factors from Hosanna-Tabor and applying them to the school teacher Kristen Biel concluded that she was not a ministerial employee. For the panel in Biel, she

by contrast, has none of Perich’s credentials, training, or ministerial background. There was no religious component to her liberal studies degree or teaching credential. St. James had no religious requirements for her position. And, even after she began working there, her training consisted of only a half-day conference whose religious substance was limited. Unlike Perich, who joined the Lutheran teaching ministry as a calling, Biel appears to have taken on teaching work wherever she could find it: tutoring companies, multiple public schools, another Catholic school, and even a Lutheran school.

***

Also in contrast to Perich, nothing in the record indicates that Biel considered herself a minister or presented herself as one to the community. She described herself as a teacher and claimed no benefits available only to ministers.

Only with respect to the fourth consideration in Hosanna-Tabor do Biel and Perich have anything in common: they both taught religion in the classroom. Biel taught lessons on the Catholic faith four days a week. She also incorporated religious themes and symbols into her overall classroom environment and curriculum, as the school required. We do not, however, read Hosanna-Tabor to indicate that the ministerial exception applies based on this shared characteristic alone. If it did, most of the analysis in Hosanna-Tabor would be irrelevant dicta, given that Perich’s role in teaching religion was only one of the four characteristics the Court relied upon in reaching the conclusion that she fell within the ministerial exception.

And even Biel’s role in teaching religion was not equivalent to Perich’s.. . .

The panel's opinion in Biel was not unanimous. A dissenting judge would have held that Biel was a minister in large part because her teaching duties at a Catholic school included religious teachings; the judge was "struck by the importance of her stewardship of the Catholic faith to the children in her class. Biel’s Grade 5 Teacher title may not have explicitly announced her role in ministry, but the substance reflected in her title demonstrates that she was a Catholic school educator with a distinctly religious purpose."

The petition for rehearing en banc was denied, but with a lengthy dissenting opinion  by Judge R. Nelson joined by an addition eight Ninth Circuit Judges - - - that's nine Judges dissenting.  Judge Nelson's opinion argues that the panel opinion in Biel (as well as the opinion in Morrisey-Berru) had taken the narrowest possible interpretation of Hosanna-Tabor, so narrow as to have "excised the ministerial exception, slicing through constitutional muscle and now cutting deep into core constitutional bone." For the dissenting judges, 

In turning a blind eye to St. James’s religious liberties protected by both Religion Clauses, we exhibit the very hostility toward religion our Founders prohibited and the Supreme Court has repeatedly instructed us to avoid.

With the Court's grant of certiorari in Biel and Morrisey-Berru, perhaps there will be more clarity regarding the factors of Hosanna-Tabor and how they should be applied to teachers in private schools run by religious organizations. 

The facts of Biel may strike many as particularly sympathetic: Kristen Biel was diagnosed with breast cancer and terminated when she said she would have to take some time off work when she underwent chemotherapy. St. James's principal, Sister Mary Margaret, told Biel it was not "fair" "to have two teachers for the children during the school year.” If she had worked for a nonreligious school, Biel would have been protected by the Americans with Disabilities Act.

The Court is set to decide whether Biel and seemingly almost every teacher at a private school operated by a religious organization should be excluded from the employment protections afforded other workers.

[image "Chalk Lessons, or the Black-board in the Sunday School. A Practical Guide for Superintendents and Teachers" by Frank Beard (1896), via]

Fourth Circuit Allows Census Undercount Claim to Move Forward

Steven D. Schwinn, UIC John Marshall Law School

The Fourth Circuit ruled in NAACP v. Bureau of the Census that a lower court erred in dismissing the plaintiffs' claims that the "methods and means" that the Census Bureau adopted for the 2020 Census would under-count African Americans. The court ordered the district court to allow the plaintiffs to file an amended complaint. The ruling said nothing about the merits.

The case involves the NAACP's claims under the Enumeration Clause and the Administrative Procedure Act that the Census Bureau's planned methodology for the 2020 Census will disproportionately undercount African Americans. The plaintiffs filed their initial complaint alleging certain deficiencies in the Bureau's approach and methodology. The district court dismissed the Enumeration Clause claim as unripe; it dismissed the APA claim on jurisdictional grounds. Just days after the district court ruled, the Bureau issued its "Operational Plan" for the 2020 Census. The court granted the plaintiffs' motion to amend their complaint as to the APA, but denied it as to the Enumeration Clause, holding that this claim was still unripe. (The court held that the plaintiffs' claims wouldn't become ripe until after the 2020 Census.) The court then dismissed the case.

The Fourth Circuit reversed as to the Enumeration Clause. It held that "at the latest" the case was ripe "when the defendants announced that the Operational Plan was final and the plaintiffs sought leave to file an amended complaint." Moreover, it said that "delayed adjudication would result in hardship to the plaintiffs."

The court remanded the case with instructions to allow the plaintiffs to file an amended complaint as to the Enumeration Clause claim (but not as to the APA). It noted, however, that "we do not express any view regarding" the merits.

Fifth Circuit Strikes ACA's Individual Mandate, Remands for the Reconsideration of Rest of the Act

Steven D. Schwinn, UIC John Marshall Law School

The Fifth Circuit yesterday ruled that the Affordable Care Act's individual mandate is unconstitutional. At the same time, the court remanded to the district court to reconsider whether the individual mandate is severable from the rest of the Act (and therefore whether other portions of the Act can stand) and to consider the government's new request for relief.

We posted on the district court's ruling here.

The ruling is a big victory for opponents of the ACA, especially the individual mandate. But whether the case also strikes other portions of the ACA, and how far the ruling sweeps, are still undetermined.

The three-judge panel ruled that the individual mandate cannot stand as an exercise of Congress's taxing power, because Congress set the tax penalty at $0. With no revenue potential, the provision cannot be a tax:

Now that the shared responsibility payment amount is set at zero, the provision's savings construction [the NFIB ruling that the individual mandate is a valid exercise of Congress's taxing power] is no longer available. The four central attributes that once saved the statute because it could be read as a tax no longer exist. Most fundamentally, the provision no longer yields the "essential feature of any tax" because it does not produce "at least some revenue for the Government." Because the provision no longer produces revenue, it necessarily lacks the three other characteristics that once rendered the provision a tax. The shared-responsibility payment is no longer "paid into the Treasure by taxpayer[s] when they file their tax returns" because the payment is no longer paid by anyone. The payment amount is no longer "determined by such familiar factors as taxable income, number of dependents, and joint filing status." The amount is zero for everyone, without regard to any of these factors. The IRS no longer collects the payment "in the same manner as taxes" because the IRS cannot collect it at all.

The court went on to say that the district court failed to consider carefully enough whether the individual mandate is severable from the rest of the Act--that is, whether other provisions of the ACA can stand without the individual mandate. (The government switched its position on appeal and argued that the mandate is inseverable.) The district court previously ruled that it wasn't severable, and thus struck the entire Act, including the guaranteed-issue and community-rating provisions, but also including every other provision (like the provision that says young people can stay on their parents' insurance until age 26). But the Fifth Circuit held that the district court's analysis wasn't sufficient, and remanded to the court "to employ a finer-toothed comb . . . and conduct a more searching inquiry into which provisions of the ACA Congress intended to be inseverable from the individual mandate."

The court also directed the lower court to consider the government's new request for relief. The government switched positions on appeal and argued that, while the individual mandate is inseverable, the court should enjoin enforcement only as to the plaintiff states and only as to those provisions that injure the plaintiffs.

In short, while yesterday's ruling struck the individual mandate, it's not yet clear exactly how far that ruling will extend to also strike other provisions of the ACA, how far it will extend geographically, and how far it will extend beyond the plaintiffs in this case.

Judge King dissented, arguing that the plaintiffs lacked standing, and that (in any event) the individual mandate was constitutional.

D.C. Circuit Rebuffs Vaping Industry's Free Speech Challenges to Tobacco Control Act

Steven D. Schwinn, UIC John Marshall Law School

The D.C. Circuit this week rejected First Amendment challenges by the vaping industry to two key provisions of the Tobacco Control Act. The ruling affirms the FDA's authority to require premarket review of vaping products and to ban the distribution of free samples of vaping products.

The case tests two provisions of the TCA. The first provision requires FDA premarket review of all new tobacco products, including e-cigarettes. The Act has three pathways for premarket review, depending on the type of tobacco product. Products designed for recreational use (like traditional cigarettes) get the easiest path of review; products marketed as safer than existing tobacco products ("modified risk" products) get a mid-level path; and products marketed as smoking cessation products get the most demanding path for review. The second provision bans the distribution of free samples.

Plaintiffs, a vaping manufacturer and a vaping industry group, argued that the two provisions violated the First Amendment. In particular, they claimed that the FDA uses a manufacturer's own claims about its product to designate an appropriate premarket review pathway (the modified risk pathway in this case), in violation of free speech. They contend that the ban on free samples impermissibly restricts their free expression. The D.C. Circuit flatly rejected the claims.

As to the premarket review requirement, the court cited circuit precedent that "explicitly approves the use of a product's marketing and labeling to discern to which regulatory regime a product is subject, and to treat it as unlawful insofar as it is marketed under a different guise." But in any event, the court also held that the requirement met Central Hudson's commercial speech test: "[E]ven if we were to scrutinize the FDA's reliance on new tobacco product descriptors as a burden on the Industry's commercial speech, the modified risk product pathway clears First Amendment scrutiny because it is reasonably tailored to advance the substantial government interest in protecting the public health and preventing youth addiction."

As to the ban on free samples, the court explained that this provision regulates conduct, not speech, and that the conduct has no obvious expressive value. The court rejected the plaintiffs' argument that free samples are "the most effective and efficient means of obtaining product-specific information when trying to switch away from deadly cigarettes":

The Industry thus appears to be urging us to afford constitutional protection to the informational value of customers' experience trying out vaping, including the experience of sampling the available flavors and sensations.

This extraordinary argument, if accepted, would extent First Amendment protection to every commercial transaction on the ground that it "communicates" to the customer "information" about a product or service. Even if we could bridge the gap between the opportunity to use a product and the expression of an "idea," the Supreme Court has long rejected the "view that an apparently limitless variety of conduct can be labeled 'speech' whenever the person engaging in the conduct intends thereby to express an idea." 

But even if the free-sample ban imposed an incidental burden on speech, the court held that "the restriction itself applies to conduct and is imposed 'for reasons unrelated to the communication of ideas.'"

District Judge finds First Amendment Problem with Arkansas "Misrepresentation" of Foods Statute

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

In an opinion in Turtle Island Foods SPC d/b/a Tofurky Co. v. Soman, Judge Kristine Baker of the Eastern District of Arkansas considered a First Amendment challenge to >Arkansas Code §§ 2-1-305(2), (5), (6), (8), (9), and (10). The provisions prohibit misbranding or misrepresenting agricultural products; central to the issue was subsection 6 which prohibits

Representing the agricultural product as meat or a meat product when the agricultural product is not derived from harvested livestock, poultry, or cervids.

Judge Baker considered seven labels for products she referred to as “Veggie Burger,” “Deli Slices,” “Chorizo Style Sausage,” “Slow Roasted Chick’n,” “Original Sausage Kielbasa,” “Hot Dogs,” and “Vegetarian Ham Roast.” These products were not derived from "harvested livestock, poultry, or cervids" and were vegetarian.

After finding that Tofurky had standing and that abstention was not appropriate, Judge Baker analyzed the merits of the First Amendment claim. The parties agreed and the court found that the well-established four prong Central Hudson test, Central Hudson Gas & Elec. Corp. v. Public Service Comm’n of New York (1980), for commercial speech governed:

• (1) whether the commercial speech at issue concerns unlawful activity or is misleading;
• (2) whether the governmental interest is substantial;
• (3) whether the challenged regulation directly advances the government’s asserted interest; and
• (4) whether the regulation is no more extensive than necessary to further the government’s interest.

Arkansas argued that the first prong regarding misleading speech was not satisfied and thus the speech did not warrant First Amendment protection, but Judge Baker found that taken as a whole the labels were not misleading:

It is true, as the State contends, that these labels use some words traditionally associated with animal-based meat. However, the simple use of a word frequently used in relation to animal-based meats does not make use of that word in a different context inherently misleading. This understanding rings particularly true since the labels also make disclosures to inform consumers as to the plant-based nature of the products contained therein.

The “Veggie Burger” label has the word “veggie” modifying the word “burger” and includes the words “all vegan” in the middle of the package. Further, the “Veggie Burger” label features the words “white quinoa” next to a picture of the burger. The “Deli Slices” label also includes the words “all vegan” in the middle of the label, features the words “plant-based” next to a picture of the product, and describes the product as “smoked ham style.” (emphasis added). The “Chorizo Style Sausage” label includes the words “all vegan” and states that the product was “made with pasture raised plants.” The “Slow Roasted Chick’n” label has the words “all vegan” right next to the product’s name and describes the product as “plant-based” in the bottom left corner. The “Original Sausage Kielbasa” label includes the words “all vegan” next to the word “sausage” and identifies the product as “Polish-style wheat gluten and tofu sausages.” The “Hot Dogs” label has the words “all vegan” next to the word “dogs” and “plant-based” under the word “dogs.” The “Vegetarian Ham Roast” has the word “vegetarian” modifying the words “ham roast.” Each of these labels also feature the letter “V” in a circle on the front of the packaging, a common indicator that a food product is vegan or vegetarian. Finally, each of these labels feature the company name “Tofurky,” which clearly contains the word “tofu” in a play on the word “turkey.”

Applying the other prongs of Central Hudson, Judge Baker found that while the state had an interest in preventing misleading labels, the statute did not substantially further that interest (given that these labels were not misleading), and that a ban on these descriptions was more extensive than necessary.

Thus, Judge Baker issued a preliminary injunction, finding that the factors for a preliminary injunction had been met.

[image via]

 

District Court Permanently Halts One Source of Reprogrammed Funds for Border Wall

Steven D. Schwinn, UIC John Marshall Law School

Judge David Briones (W.D. Tex.) permanently enjoined the government from using one particular source of reprogrammed funds to build the border wall. The ruling follows an earlier one in which the court ruled that the particular reprogramming violated the Consolidated Appropriations Act of 2019. (We posted on that earlier ruling here.)

Recall that Judge Briones ruled in October that the government's attempt to reprogram Defense Department funds for "military construction projects" under 10 U.S.C. Sec. 2808 violated the CAA. Judge Briones then invited the parties to suggest an appropriate remedy. Yesterday's ruling grants that remedy.

Judge Briones held that the permanent injunction factors favored the plaintiffs. The court therefore issued a permanent injunction against the agency-head defendants to prevent them from reprogramming these particular funds.

The ruling (like the court's October ruling) doesn't halt reprogramming under Section 284, however. (The court noted that the Supreme Court this summer stayed a lower court ruling that halted Section 284 reprogramming.) All this means that the government can't reprogram under Section 2808 (unless and until it appeals and wins), but it can reprogram under Section 284.

SCOTUS Grants Certiorari in First Amendment Challenge to Delaware Constitution's Judicial Appointment Provision

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

The United States Supreme Court granted certiorari in Adams v. Carney, Governor of Delaware in which the Third Circuit held several sections of the Delaware Constitution regarding the selection of judges violated the First Amendment.

Centrally, the Delaware Constitution, Art IV §3 seeks to achieve a partisan balance in the judiciary and provides that appointments to the state judiciary "shall at all times be subject to the following limitations":

First, three of the five Justices of the Supreme Court in office at the same time, shall be of one major political party, and two of said Justices shall be of the other major political party.

Second, at any time when the total number of Judges of the Superior Court shall be an even number not more than one-half of the members of all such offices shall be of the same political party; and at any time when the number of such offices shall be an odd number, then not more than a bare majority of the members of all such offices shall be of the same major political party, the remaining members of such offices shall be of the other major political party.

Third, at any time when the total number of the offices of the Justices of the Supreme Court, the Judges of the Superior Court, the Chancellor and all the Vice-Chancellors shall be an even number, not more than one-half of the members of all such offices shall be of the same major political party; and at any time when the total number of such offices shall be an odd number, then not more than a bare majority of the members of all such offices shall be of the same major political party; the remaining members of the Courts above enumerated shall be of the other major political party.

In its opinion, the Third Circuit panel found that this political balancing violated the First Amendment, concluding that it was not within the protections for political policymakers of Elrod v. Burns (1976) and Branti v. Finkel (1980).  The Third Circuit found that even assuming that "judicial political balance is a vital Delaware interest," Delaware failed to demonstrate that this goal could not be realized using less restrictive means of infringing on the plaintiff's associational interests. 

And while the Third Circuit found that the plaintiff, a retired Delaware attorney who belonged to neither major party. lacked standing to challenge the Delaware constitutional provisions regarding Family Court and the Court of Common Pleas.  The United States Supreme Court, however, has directed briefing on the issue of Article III standing, presumably pertinent to the other provisions.

[image via]

 

District Court Rules State Transportation Authority Immune from Federal Whistleblower Claim

Steven D. Schwinn, UIC John Marshall Law School

Judge Randolph D. Moss (D.D.C.) ruled this week that the Washington Metropolitan Area Transit Authority enjoyed Eleventh Amendment immunity from a former employee's suit under the National Transit Systems Security Act. In so ruling, Judge Moss held that the NTSSA wasn't included in the state-sovereign-immunity-waiver provision in the Civil Rights Remedies Equalization Act. The ruling dismisses the case.

The case arose when a former WMATA employee sued the Authority for violating the NTSSA. That Act, a whistleblower-protection act, prohibits public transportation agencies from "discharg[ing]" or otherwise "discriminat[ing] against an employee" based "in whole or in part" on the employee's "lawful, good faith" provision of information relating to conduct that "the employee reasonably believes constitutes a violation of any Federal law, rule, or regulation relating to public safety or security" to "a person with supervisory authority over the employee."

WMATA, a creature of a compact between Maryland, Virginia, and D.C., moved to dismiss on state sovereign immunity grounds.

The plaintiff countered that WMATA waived its Eleventh Amendment immunity under the Civil Rights Remedies Equalization Act. The CRREA provides that

[a] State shall not be immune under the Eleventh Amendment . . . from suit in Federal court for a violation of section 504 of the Rehabilitation Act of 1973, title IX of the Education Amendments of 1972, the Age Discrimination Act of 1975, title VI of the Civil Rights Act of 1964, or the provisions of any other Federal statute prohibiting discrimination by recipients of Federal financial assistance.

The plaintiff argued that the NTSSA fell within the catch-all provision, because it specifically prohibits discrimination. He claimed that WMATA therefore waived immunity under the CRREA.

The court rejected this argument. The court acknowledged that the NTSSA banned "discrimination," but said that the discrimination outlawed in the NTSSA was not the same type of discrimination covered in CRREA, and that it therefore didn't fall within the CRREA's catch-all:

Each of the enumerated statutes [in the CRREA] prohibits class-based discrimination--that is, discrimination based on a personal characteristic, such as race, national origin, age, sex, or disability. Each is fairly described as a civil rights statute--the presumptive target of the Civil Rights Remedies Equalization Act. And each ensures that the benefits of federally funded programs are equally available to all, regardless of their race, national origin, sex, or disability. The NTSSA, in contrast, is a public safety statute, designed to ensure that employees of public transportation agencies and their contractors and subcontractors are not dissuaded from flagging potential violations of federal safety or security rules . . . . Although the NTSSA uses the word "discriminate," it does so in [a] very different manner than the CRREA and the enumerated statutes.

Second Circuit Says Deutsche Bank Must Turn Over Trump Financial Records to House Committees

Steven D. Schwinn, UIC John Marshall Law School

The Second Circuit ruled that Deutsche Bank and Capital One have to comply with subpoenas issued by the House Financial Services and Permanent Select Committee on Intelligence for financial records related to President Trump and his businesses. The court denied a preliminary injunction to halt the disclosures. While the ruling is technically preliminary, the court noted that it's effectively a ruling on the merits.

The ruling is yet another blow to President Trump and his continuing quest to keep his financial records secret. (We posted most recently here, on the Supreme Court's stay of a D.C. Circuit mandate to Mazars to release his financial records.) It's also yet another candidate for Supreme Court review.

After the Committees subpoenaed the banks, President Trump, his three oldest children, and some of their organizations sued the banks and the Committees seeking to halt the disclosure. The plaintiffs raised statutory and constitutional claims, although the court noted that President Trump specifically identified himself only as a private citizen.

The court held that the plaintiffs weren't likely to succeed on any of their claims. As to the first statutory claim, the court held that the Right to Financial Privacy Act did not prohibit the disclosures, because the RFPA doesn't apply to Congress. As to the second statutory claim, the court ruled that 26 U.S.C. Sec. 6103 and its several relevant subsections didn't bar the Committees from seeking the records from the banks.

As to the constitutional claim, the court rejected the plaintiffs' contention that the Committees exceeded their power to investigate in issuing the subpoenas. The court noted the breadth of the subpoenas, but nevertheless held that the Committees had a valid legislative purpose (not focusing on possible illegalities committed by the President, but instead "on the existence of such activity in the banking industry, the adequacy of regulation by relevant agencies, and the need for legislation") and that the "public need" to investigate for that purpose "overbalances any private rights affected." On this balancing, the court wrote,

"[T]he weight to be ascribed to" the public need for the investigations the Committees are pursuing is of the highest order. The legislative purposes of the investigations concern national security and the integrity of elections, as detailed above. By contrast, the privacy interests concern private financial documents related to businesses, possibly enhanced by the risk that disclosure might distract the President in the performance of his official duties.

The court went on to hold that the subpoenas were sufficiently tailored to the Committees' legitimate purposes.

The court identified one request, however, that "might reveal sensitive personal details having no relationship to the Committees' legislative purposes," and others "that have such an attenuated relationship to the Committees' legislative purposes that they need not be disclosed." The court remanded to the district court and specified a procedure by which the court could exclude certain "sensitive documents."

As to all other documents not identified for exclusion or possible exclusion, however, the court ordered the banks to "promptly transmit[] to the Committees in daily batches as they are assembled, beginning seven days from the date of this opinion."

The court rejected the amicus government's separation-of-powers argument, holding that this case isn't about the separation of powers (because it involves a congressional request from a third party for information of the President in his personal capacity).

Judge Livingston dissented. She agreed with the majority that the plaintiffs lacked a likelihood of success on the merits of their statutory claims. But she disagreed about how to treat the constitutional claims. She argued that the case raises serious separation-of-powers concerns, and that the current record simply isn't well enough developed to evaluate those concerns. So she argued for a full remand, "directing the district court promptly to implement a procedure by which the Plaintiffs may lodge their objections to disclosure with regard to specific portions of the assembled material and so that the Committees can clearly articulate, also with regard to specific categories of information, the legislative purpose that supports disclosure and the pertinence of such information to that purpose."

SCOTUS Hears Oral Argument in NY Rifle v. City of NY on Second Amendment

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

The Court heard oral argument in New York State Rifle & Pistol Association Inc. v. City of New York, New York regarding a New York City regulation that allows a person having a "premises license" — one the most restricted type of licenses —  for handguns to “transport her/his handgun(s) directly to and from an authorized small arms range/shooting club, unloaded, in a locked container, the ammunition to be carried separately,”  but further defines an "authorized" range/shooting club as limited to facilities located in New York City.  Recall that  the Second Circuit unanimously upheld the regulation.

There is a substantial mootness question here: the City of New York changed the regulation to allow for transport to another residence and a range or shooting club, whether or not those secondary places are within the City. Additionally, the state of New York amended its law to provide for the legality of transport. The Court had previously rejected a filed "Suggestion of Mootness" and instructed the parties to address the issue at oral argument.

Arguing for the NYSRPA, a state gun-rights organization, Paul Clement broached the subject of mootness in his introduction and Justice Ginsburg asked him "So what's left of this case? The Petitioners have gotten all the relief that they sought." While Clement argued they were entitled to an injunction, the mootness issue resurfaced again and again. Arguing for the United States, supporting the gun rights organization, Principal Deputy Solicitor General Jeffrey Wall contended the named plaintiffs could be entitled to damages and thus the case was not moot. On behalf of the City of New York, Richard Dearing argued that "changes in state and city law have given Petitioners everything they asked for and, indeed, more than that," and that rather than view the City's actions "skeptically," it is a "good thing and not a cause for concern when the government responds to litigation by resolving matters through the democratic process." As to any damages claim that might be added in the future by petitioners, Dearing argued that this would be a unique support for the courts exercising Article III power.

On the merits, an underlying argument concerns the level of scrutiny suitable for evaluating the law. The Second Circuit panel tracked the analytic structure articulated previously by the Second Circuit in New York State Rifle & Pistol Ass'n v. Cuomo, decided in 2015. The Second Circuit concluded that intermediate scrutiny was the appropriate standard based on its analysis of two factors: "(1) ‘how close the law comes to the core of the Second Amendment right’ and (2) ‘the severity of the law’s burden on the right.' "  The level of scrutiny to be applied to gun regulations was a question left open by the Court's decisions in District of Columbia v. Heller (2008) and McDonald v. City of Chicago (2010). Yet the oral argument did not delve deeply into this issue. Wall argued that the Second Circuit had applied a "watered-down form of scrutiny" and the correct standard is simply that the "text, history, and tradition" mandate "real protection" for the Second Amendment, seemingly always strict scrutiny.

Justice Kavanuagh, like Justice Thomas, had no questions, and whether or not the Court will dismiss the case as moot is difficult to predict, although it would seem to be a likely outcome. Note also that the Court's legitimacy should it reach the merits in this case will certainly be questioned; an amicus brief by several Senators has made that point and attracted attention.