Friday, July 24, 2020
Federal Judge Enjoins Federal Agents Acting Against Journalists and Legal Observers in Portland, Oregon
In a Temporary Restraining Order and Opinion in Index Newspapers v. City of Portland, Judge Michael Simon enjoined the U.S. Department of Homeland Security ("DHS"); and the U.S. Marshals Service ("USMS") — the "Federal Defendants" — from arresting and otherwise interfering with journalists and legal observers who are documenting the troublesome and now widely reported events in Portland, Oregon, which have attracted Congressional attention.
Judge Simon's relatively brief TRO opinion, first finds that the plaintiffs have standing, and then applying the TRO criteria importantly finds that there is a likelihood the plaintiffs would prevail on the First Amendment claim. Judge Simon found both that there was sufficient circumstantial evidence of retaliatory intent against First Amendment rights and that plaintiffs had a right of access under Press-Enterprise Co. v. Superior Court (1986). Judge Simon found fault with many of the specific arguments of the federal defendants, including the unworkability of the remedy:
The Federal Defendants also argue that closure is essential because allowing some people to remain after a dispersal order is not practicable and is unworkable. This argument is belied by the fact that this precise remedy has been working for 21 days with the Portland Police Bureau. Indeed, after issuing the first TRO directed against the City, the Court specifically invited the City to move for amendment or modification if the original TRO was not working, or address any problems at the preliminary injunction phase. Instead, the City stipulated to a preliminary injunction that was nearly identical to the original TRO, with the addition of a clause relating to seized property. The fact that the City never asked for any modification and then stipulated to a preliminary injunction is compelling evidence that exempting journalists and legal observers is workable. When asked at oral argument why it could be workable for City police but not federal officers, counsel for the Federal Defendants responded that the current protests are chaotic. But as the Federal Defendants have emphatically argued, Portland has been subject to the protests nonstop for every night for more than 50 nights, and purportedly that is why the federal officers were sent to Portland. There is no evidence that the previous 21 nights were any less chaotic. Indeed, the Federal Defendants' describe chaotic events over the Fourth of July weekend through July 7th, including involving Portland police, and the previous TRO was issued on July 2nd and was in effect at that time. The workability of the previous TRO also shows that there is a less restrictive means than exclusion or force that is available.
The TRO is quite specific as to journalists as well as to legal observers, providing in paragraph 5, to "facilitate the Federal Defendants' identification of Legal Observers protected under this Order, the following shall be considered indicia of being a Legal Observer: wearing a green National Lawyers' Guild-issued or authorized Legal Observer hat (typically a green NLG hat) or wearing a blue ACLU-issued or authorized Legal Observer vest."
The TRO lasts for 14 days; the litigation will undoubtedly last much longer.
Thursday, July 9, 2020
Court Says Congress Can Subpoena Trump Financial Records, but Must Account for Separation of Powers Concerns
The Supreme Court ruled today that while Congress has authority to issue subpoenas for the President's personal financial records, courts that judge those subpoenas must take more careful account of the separation-of-powers considerations at play.
The ruling in Trump v. Mazars vacates the lower courts' rulings and remands the case for reconsideration in light of the balancing test that the Court sets out.
The ruling means that the congressional committees won't get President Trump's financial records yet, and maybe never. It all depends on whether Congress can meet the test set out in the Court's opinion. Either way, it almost certainly won't happen before the 2020 election.
The ruling, like Vance, is a short-term victory for President Trump, in that his records probably won't come out soon. But on the other hand, it's a decisive long-term defeat for the presidency (and victory for Congress), as the Court affirmed Congress's power to subpoena the President's personal records, even with a somewhat higher-than-normal requirement.
Chief Justice Roberts wrote for the Court, joined by Justices Ginsburg, Breyer, Sotomayor, Kagan, Gorsuch, and Kavanaugh. Justice Thomas dissented, and Justice Alito dissented. (If you're keeping count, that's the same line-up as in Vance.)
The Court first rejected the President's sweeping claim that tried to shoe-horn executive privilege into the case: "We decline to transplant that protection root and branch to cases involving nonprivileged, private information, which by definition does not implicate sensitive Executive Branch deliberations."
The Court then acknowledged that Congress has very broad, but still defined, powers of investigation and subpoena, even against the President, and even for the President's personal papers. But the Court said that because these subpoenas sought personal information of the President (as the single head of the Executive Branch), they raised especial separation-of-powers concerns that the lower courts failed sufficiently to account for:
The House's approach fails to take adequate account of the significant separation of powers issues raised by congressional subpoenas for the President's information. . . .
Without limits on its subpoena powers, Congress could "exert an imperious controul" over the Executive Branch and aggrandize itself at the President's expense, just as the Framers feared.
The Court set out a non-exhaustive list of things that courts should look for in judging congressional subpoenas for a President's personal information:
First, courts should carefully assess whether the asserted legislative purpose warrants the significant step of involving the President and his papers. Congress may not rely on the President's information if other sources could reasonably provide Congress the information it needs in light of its particular legislative objective. . . .
Second, to narrow the scope of possible conflict between the branches, courts should insist on a subpoena no broader than reasonably necessary to support Congress's legislative objective. . . .
Third, courts should be attentive to the nature of the evidence offered by Congress to establish that a subpoena advances a valid legislative purpose. The more detailed and substantial the evidence of Congress's legislative purpose, the better. . . .
Fourth, courts should be careful to assess the burdens imposed on the President by a subpoena. . . .
Other considerations may be pertinent as well; one case every two centuries does not afford enough experience for an exhaustive list.
The Court vacated the lower courts' opinions and remanded for reconsideration under these factors.
Justice Thomas argued that "Congress has no power to issue a legislative subpoena for private, nonofficial documents--whether they belong to the President or not," unless Congress is investigating an impeachment.
Justice Alito dissented, too, arguing that the bar for Congress should be set higher than the Court's setting, and that "the considerations outlined by the Court can[not] be properly satisfied [on remand] unless the House is required to show more than it has put forward to date."
The Supreme Court ruled today that a state grand jury is not categorically prohibited from issuing a subpoena for the President's taxes and financial records. But the ruling leaves open the possibility that the President could argue that the subpoena violates state law, or that a particular subpoena, including this one, violates the separation of powers.
Because of that last bit, the ruling means that the grand jury probably won't get its hands on President Trump's taxes anytime soon. That's because the President is almost sure to pitch these arguments in state or federal court, and the litigation will likely take some time. That means that the ruling is likely a short-term win for the President.
But at the same time, the ruling is a dramatic loss for the presidency. That's because the Court unconditionally rejected the President's sweeping and categorical claim of absolute immunity against state criminal processes. President Trump overargued this, as did the DOJ, and the Court reined him in.
Chief Justice Roberts wrote the opinion, joined by Justices Ginsburg, Breyer, Sotomayor, and Kagan. Justice Kavanaugh wrote an opinion concurring in the judgment, joined by Justice Gorsuch. Justice Thomas dissented, and Justice Alito dissented.
The Court held that Presidents long lacked immunity from federal criminal subpoenas, going all the way back to the Burr trial. It ruled that there's nothing different about a state criminal subpoena that would categorically immunize the President (as the president argued), or even raise the bar for a presidential subpoena (as DOJ argued). In particular, the Court rejected the President's claims that a state grand jury subpoena could divert the President's attention, stigmatize the President (and undermine his leadership), and harass the President in violation of federalism principles. It similarly rejected DOJ's similar reasons for a higher bar for presidential subpoenas.
The Court nevertheless left open the possibility that the President (like anybody else) could challenge a state grand jury subpoena under state law, like law that bans bad faith subpoenas or those that create an undue burden. It also left open the possibility that the President could challenge a specific subpoena on the basis that a particular subpoena unduly interfered with his duties as President. (The problem in this case was that the President claimed a categorical immunity from state subpoenas.) The President will probably take up these claims now, leading to yet another round of litigation, and probably preventing the grand jury from getting the documents and records anytime soon.
Justice Kavanaugh, joined by Justice Gorsuch, concurred in the judgment but wrote separately to underscore that there may be state law or constitutional problems with this particular subpoena, depending on how the courts balance out the competing interests of the state courts and the President.
Justice Thomas dissented, agreeing with the majority that the President isn't categorically immune from the grand jury's issuance of the subpoena, but that he might be immune from the enforcement of it.
Justice Alito dissented, too, agreeing that the President isn't categorically immune, but arguing for a heightened standard, given the nature of the Presidency and the federalism system.
Wednesday, July 8, 2020
The Supreme Court today upheld the Trump Administration's rules substantially broadening the religious exemption and expanding it to those with a "moral" objection to the Affordable Care Act's contraception guarantee.
The ruling in Little Sisters v. Pennsylvania means that a dramatically expanded group of employers--those with a religious objection or moral objection to contraception--get an automatic free pass on the requirement that employers provide their female employees with health-insurance coverage that includes contraceptives. Covered employers need not file for an self-certified exemption or accommodation; they just have to, well, not provide coverage.
This could mean that between 70,500 and 126,400 women would lose access to contraceptive services under their employer-provided health insurance plans. (This is the Administration's estimate.)
The Court's ruling leaves open another challenge to the rules, however, and the plaintiffs could raise the argument on remand, that is, that the rules are arbitrary and capricious under the Administrative Procedure Act.
Justice Thomas wrote for the Court, joined by Chief Justice Roberts, Alito, Gorsuch, and Kavanaugh. The Court ruled that the Departments had statutory authority to adopt the rules under 42 U.S.C. Sec. 300gg-13(a)(4), which provides that "with respect to women," group health plans must "at a minimum, provide . . . such additional preventive care and screenings not described in paragraph (1) as provided for in comprehensive guidelines supported by [HRSA]." The Court said that the "as provided for" clause "grants sweeping authority to HRSA to craft a set of standards defining the preventive care that applicable health plans must cover," leaving the HRSA with "virtually unbridled discretion to decide what counts as preventive care and screenings." The Court held that this authority included the power "to identify and create exemptions" like the ones in the challenged rules.
The Court also held that the Departments complied with the procedural requirements in the Administrative Procedure Act in adopting the rules.
The Court expressly declined to say whether RFRA compelled the exemptions in the rules, as the Administration argued. Still, the Court did say that the Departments were within their powers to consider RFRA in writing the rules, and even that "[i]t is clear from the face of the statute that the contraceptive mandate is capable of violating RFRA."
Justice Alito concurred in full, joined by Justice Gorsuch. Justice Alito argued that the Court should have resolved the RFRA question in favor of the Administration--that is, that RFRA compelled the rules. According to Justice Alito, this would have meant that the rules were not impermissibly arbitrary and capricious under the APA, and thus foreclosed that argument on remand.
Justice Kagan, joined by Justice Breyer, concurred in the judgment. Justice Kagan argued that HRSA had statutory authority to exempt certain employers from the contraceptive guarantee, but (different than the Court) because the HRSA was entitled to Chevron deference in its interpretation of the ambiguous statutory language. She also argued that the rules could be arbitrary and capricious--an issue for the lower court on remand.
Justice Ginsburg dissented, joined by Justice Sotomayor. Justice Ginsburg pointed to an earlier provision in the Act that specifies that group health plans and health insurance issuers "shall" cover specified services. She argued that this provision mandates who is required to provide specified services--and that it doesn't include any exemptions. (She argued that the section that the Court relied on only went to what services must be provided, not who must provide them. And yet the rules provide exemptions for who must provide services.) She also argued that the rules weren't compelled by the Free Exercise Clause or RFRA.
Writing for the Court, Alito's opinion — joined by Chief Justice Roberts and Justices Thomas, Breyer, Kagan, Gorsuch, and Kavanaugh — held that although the teachers in these cases were not actually "ministers" by title and did not have as much as religious training as the teacher in Hosanna-Tabor, they are encompassed in the same exception from enforcement of anti-discrimination laws. The Court stated that the First Amendment protects a religious institution's independence on matters of "faith and doctrine" without interference from secular authorities, including selection of its "ministers." But who should qualify as a "minister" subject to this exemption? Recall that the factors of Hosanna-Tabor figured in the oral argument (and recall also that they figured in the Ninth Circuit's opinions). But here, the Court stated that while there may be factors, "What matters, at bottom, is what an employee does," rather than what the employee is titled. Moreover, the "religious institution's explanation of the role of such employees in the life of the religion" is important. Indeed, the religious institution's "explanation" seems determinative. The Court rejected a "rigid formula" for determining whether an employee is within the ministerial exception, concluding instead that:
When a school with a religious mission entrusts a teacher with the responsibility of educating and forming students in the faith, judicial intervention into disputes between the school and the teacher threatens the school’s independence in a way that the First Amendment does not allow.
The brief concurring opinion by Thomas, joined by Gorsuch, argues that the Court should go further and essentially make the implicit more explicit: the Court should decline to ever weigh in "on the theological question of which positions qualify as 'ministerial.' "
Sotomayor dissenting opinion, joined by Ginsburg, begins:
Two employers fired their employees allegedly because one had breast cancer and the other was elderly. Purporting to rely on this Court’s decision in Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC (2012), the majority shields those employers from disability and age-discrimination claims. In the Court’s view, because the employees taught short religion modules at Catholic elementary schools, they were “ministers” of the Catholic faith and thus could be fired for any reason, whether religious or nonreligious, benign or bigoted, without legal recourse. The Court reaches this result even though the teachers taught primarily secular subjects, lacked substantial religious titles and training, and were not even required to be Catholic. In foreclosing the teachers’ claims, the Court skews the facts, ignores the applicable standard of review, and collapses Hosanna-Tabor’s careful analysis into a single consideration: whether a church thinks its employees play an important religious role. Because that simplistic approach has no basis in law and strips thousands of school- teachers of their legal protections, I respectfully dissent.
For the dissent, the Court's conclusion has "grave consequences," noting that it is estimated that over 100,000 secular teachers employed by religiously-affiliated schools are now without employment protections. Further, it contrasts Esponiza v. Montana Dept of Revenue, decided this Term, in which the Court "lamented a perceived 'discrimination against religion,'" but here "it swings the pendulum in the extreme opposite direction, permitting religious entities to discriminate widely and with impunity for reasons wholly divorced from religious beliefs." The dissent concludes with a hope that the Court will be "deft" enough to "cabin the consequences" of this ministerial exception, but given the current composition of the Court, that hope seems a narrow one.
Monday, July 6, 2020
A unanimous Supreme Court today upheld a state law that punishes "faithless electors." The ruling means that states can continue to impose fines on individuals appointed to vote in the Electoral College who pledge their vote to one candidate, but actually vote for another. In a companion case (in a brief per curiam opinion), the Court held that a state could remove and replace a faithless elector with an elector who would vote for the winner of the state's popular vote.
The case, Chiafalo v. Washington, arose when three Washington electors who pledged to support Hillary Clinton in the 2016 presidential election actually voted for someone else. (They hoped that they could encourage other electors to do the same, and deny Donald Trump the presidency.) The state imposed a $1000 fine for each "faithless elector" for violating their pledge to support the candidate who won the state's popular vote.
The pledge wasn't a problem. The Court in 1952 upheld a pledge requirement, and a state's power to appoint only those electors who would vote for the candidate of the winning political party. But that case, Ray v. Blair, didn't answer the question whether a state could punish a faithless elector.
Today's ruling says yes.
Justice Kagan wrote for the Court. She noted first that the appointment power in Article II, Section 1, authorizes each state to appoint electors "in such Manner as the Legislature thereof may direct." This power to appoint "includes a power to condition [the] appointment--that is, to say what the elector must do for the appointment to take effect," including requiring the elector to pledge to cast a vote in the Electoral College that reflects the popular vote in the state. Then: "And nothing in the Constitution expressly prohibits States from taking away presidential electors' voting discretion as Washington does." In short, "a law penalizing faithless voting (like a law merely barring that practice) is an exercise of the State's power to impose conditions on the appointment of electors."
The Court also wrote that the practice of punishing a faithless elector is consistent with "long settled and established practice." "Washington's law, penalizing a pledge's breach, is only another in the same vein. It reflects a tradition more than two centuries old. In that practice, electors are not free agents; they are to vote for the candidate whom the State's voters have chosen."
Justice Thomas concurred, joined by Justice Gorsuch. Justice Thomas argued that the question isn't answered by Article II (or anything else in the Constitution), and so gets its answer from the federalism formula in the Tenth Amendment: "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."
In its opinion in Barr v. American Association of Political Consultants the United States Supreme Court held a provision of the Telephone Consumer Protection Act of 1991 (the “TCPA”), 47 U.S.C. § 227(b)(1)(A), exempting certain calls from the prohibition of robocalls violated the First Amendment.
Recall from our discussion when certiorari was granted that the federal law prohibits calls to cell phones by use of an automated dialing system or an artificial or prerecorded voice ("robocalls") subject to three statutory exemptions including one added in 2015 for automated calls that relate to the collection of debts owed to or guaranteed by the federal government including mortgages and student loans. Recall also from our oral argument preview that the case involves the tension between marketplace of ideas and privacy.
The challengers, political consultants and similar entities, argued that this exemption violated the First Amendment as a content regulation that could not survive strict scrutiny and further that the exemption could not be severed from the TCPA. To win, the challengers had to prevail on both arguments. However, a majority of the Justices found that while the exemption violated the First Amendment, it could be severed and so the prohibition in the TCPA applicable to the challengers remained valid.
As the plurality opinion expresses it:
Six Members of the Court today conclude that Congress has impermissibly favored debt-collection speech over political and other speech, in violation of the First Amendment. Applying traditional severability principles, seven Members of the Court conclude that the entire 1991 robocall restriction should not be invalidated, but rather that the 2015 government-debt exception must be invalidated and severed from the remainder of the statute. As a result, plaintiffs still may not make political robocalls to cell phones, but their speech is now treated equally with debt-collection speech. The judgment of the U. S. Court of Appeals for the Fourth Circuit is affirmed.
Despite this seeming overwhelming agreement, there is no majority opinion and the opinions demonstrate a perhaps needless fragmentation of the Justices and complication of precedent.
- Kavanaugh's plurality opinion garnered support from Chief Justice Roberts and Justice Alito, with Thomas joining on the First Amendment issue applying strict scrutiny to a content-based regulation, but not on the severability issue (Part III).
- Sotomayor wrote a brief solo concurring opinion, concluding that although the First Amendment standard should be the more relaxed intermediate scrutiny, the standard was not satisfied. She agreed that severability of the exemption was proper.
- Breyer, joined by Ginsburg and Kagan, agreed that the provision was severable, but dissented on the First Amendment issue, finding that strict scrutiny should not apply and that the robocall exemption survived intermediate-type scrutiny ("The speech-related harm at issue here — and any related effect of the marketplace of ideas — is modest").
- Gorsuch, joined in part by Thomas, agreed that the exemption violated the First Amendment, but argued that it was no severable, or more accurately that severability should not be the issue. He argued that severing and voiding the government-debt exemption does nothing to address the injury the challengers claimed and it harms strangers to this lawsuit. The opinion calls for a reconsideration of "severability doctrine" as a whole, citing in a footnote Thomas's partial dissent in Selia Law just last week.
Thus while the outcome is clear, its ultimate basis is muddied.