Constitutional Law Prof Blog

Seventh Circuit Rebuffs Appeal by Republicans, State Legislation in Wisconsin Voting Case

Steven D. Schwinn, University of Illinois Chicago Law School

The Seventh Circuit flatly rejected an appeal by the Wisconsin legislature and the state and national Republican Party of a lower court's order that the state extend voting deadlines in light of Covid-19. The ruling leaves the extended deadlines in place and ends the case, unless the intervenors can persuade the full Seventh Circuit or the Supreme Court to step in.

The case arose when the Democratic National Committee and others sued the state, arguing that its statutory voting deadlines violated the right to vote. The district court agreed, and ordered extended deadlines.

State executive officials declined to appeal. But the RNC, state Republicans, and the state legislature moved to intervene to defend the state's statutory deadlines (and to oppose the district court's order extending them), and brought this appeal.

The Seventh Circuit's ruling says that these parties don't have standing to appeal. The court said that the state and national Republican parties don't have standing, because neither group contended that the district court's ruling would affect their members, and because neither group suffered an injury itself.

Legislative standing was a little different. The court acknowledged that a legislature can litigate in federal court when it seeks to vindicate a legislative interest. But here the court said there was none. "All the legislators' votes were counted; all of the statutes they passed appear in the state's code."

The legislature argued that state law authorized it to defend against challenges to state statutes. But the court observed that the state supreme court previously ruled that this provision violated the state constitution, which "commits to the executive branch of government [and not the legislative branch] the protection of the state's interest in litigation."

The court gave the putative appellants a week to show cause why the court shouldn't dismiss the case.

How Could a Justice Amy Coney Barrett Affect the Affordable Care Act?

Looking for a plain-English explainer on how a Justice Amy Coney Barrett could affect the Affordable Care Act, or Obamacare, in a case scheduled for oral argument on November 10? Here you go:

 

 

President Trump Announces Nomination of Judge Amy Coney Barrett

Here's SCOTUSblog's resource page:

    https://www.scotusblog.com/category/special-features/nomination-of-amy-coney-barrett-to-the-supreme-court/

Here's the Seventh Circuit opinions website, which allows you to search opinions by author:

    http://media.ca7.uscourts.gov/opinion.html

District Court Halts Administration's Plan to Rush Census

Steven D. Schwinn, University of Illinois Chicago Law School

Judge Lucy H. Koh (N.D. Cal.) ruled this week that the Trump Administration's late summer plan to rush census data collection likely violated the Administrative Procedure Act. The ruling halts the implementation of the plan.

The ruling is a blow to the Trump Administration and its latest effort to alter or manipulate census data.

The case arose when the Census Bureau first suspended census operations and then pushed back internal deadlines for census data collection and analysis because of collection problems related to COVID-19. (For one, the Bureau couldn't keep census data doorknockers on the payroll: they kept quitting out of fear of contracting COVID.) The Bureau also announced that it wouldn't be able to meet statutory deadlines for reporting census data. The Bureau said that under its regular deadlines the census would be incomplete and inaccurate.

But then in early August, the Bureau abruptly reversed course and issued the "Replan." The Replan "accelerate[d] the completion of data collection and apportionment counts by our statutory deadline of December 31, 2020 . . . ."

The problem was that the Bureau itself--and the Bureau's unanimous Scientific Advisory Committee, and the GAO, and the Commerce Department's Inspector General--concluded that the Replan increased the risks of an incomplete and inaccurate 2020 census.

Plaintiff organizations and local jurisdictions sued, arguing that the Replan violated the APA and the Enumeration Clause and sought to halt its implementation. The court ruled that the case was justiciable, that the plaintiffs had standing, and that the Replan likely violated the APA. (It did not rule on the Enumeration Clause, because it didn't have to. The APA ruling was enough to say that it likely violated the law.) As to the APA claim, the court wrote:

[T]he Court agreed that Plaintiffs are likely to succeed on the merits of their APA arbitrary and capricious claim for five reasons: (1) Defendants failed to consider important aspects of the problem, including their constitutional and statutory obligations to produce an accurate census; (2) Defendants offered an explanation that runs counter to the evidence before them; (3) Defendants failed to consider alternatives; (4) Defendants failed to articulate a satisfactory explanation for the Replan; and (5) Defendants failed to consider reliance interests.

 

Justice Ginsburg Lies in State at Capitol

Justice Ruth Bader Ginsburg today became the first woman to lie in state at the Capitol. Here's the NYT report, with live updates.

 

D.C. Circuit Says House Has Standing to Challenge Trump's Reprogramming Funds for Wall

The D.C. Circuit ruled today that the House of Representatives has standing to challenge President Trump's reprogramming of federal funds to build a border wall.

The ruling is a setback for the Trump Administration and its efforts to build the wall (or at least more of it than Congress authorized through federal funding). But the ruling only says that the House has standing--not that it wins. The case now goes back to the district court for further proceedings, unless the administration seeks en banc or Supreme Court review.

The court said that the House has standing to challenge the reprogramming under the Appropriations Clause, but not under the Administrative Procedure Act. That shouldn't matter much to the future of the case, though: the lower court will still rule whether the Trump administration violated the law (the Constitution) in reprogramming funds.

Aside from allowing this case to move forward, the ruling is also significant because it says that a single house of Congress has standing to challenge executive action in violation of the Appropriations Clause. Appropriations, of course, require both houses of Congress. But the court said that a single house nevertheless suffered sufficient injury to satisfy Article III standing requirements when the executive branch reprograms federal funds in alleged violation of the Appropriations Clause. Here's what the court wrote on that point:

More specifically, by spending funds that the House refused to allow, the Executive Branch has defied an express constitutional prohibition that protects each congressional chamber's unilateral authority to prevent expenditures. It is therefore "an institutional plaintiff asserting an institutional injury" that is both concrete and particularized, belonging to the House and the House alone.

To put it simply, the Appropriations Clause requires two keys to unlock the Treasury, and the House holds one of those keys. The Executive Branch has, in a word, snatched the House's key out of its hands. That is the injury over which the House is suing.

. . . 

[U]nder the defendants' standing paradigm [requiring Congress to sue, not just a single house], the Executive Branch can freely spend Treasury funds as it wishes unless and until a veto-proof majority of both houses of Congress forbids it. Even that might not be enough: Under defendants' standing theory, if the Executive Branch ignored that congressional override, the House would remain just as disabled to sue to protect its own institutional interests. That turns the constitutional order upside down.