Constitutional Law Prof Blog

D.C. Circuit Says House Committee Minority Can Sue to Get GSA Info

Steven D. Schwinn, University of Illinois Chicago Law School

The D.C. Circuit ruled this week that members of a House committee have standing to sue to enforce their statutory right to obtain information from executive agencies, in this case the General Services Administration.

The ruling means that the plaintiff-House members can pursue their claim to get the information, but it does not say that they'll win. In any event, the case is likely to become moot under President Biden, when the administration seems much more likely to comply with the request. (The ruling is likely to embolden minority Republican House members to ask for information from the Biden Administration.)

The case, Maloney v. Murphy, arose when Democratic members of the House Oversight Committee, then in a minority, sought information from the GSA related to the Agency's lease with a Trump corporation for the Old Post Office. The members invoked 5 U.S.C. Sec. 2954, which authorizes seven members of the House Oversight Committee or five members of the Senate Homeland Security and Governmental Affairs Committee to request and obtain information from any executive agency. The statute functionally allows a minority group of lawmakers on those committees to obtain information from an executive agency, even if the full committee does not seek that same information. 

GSA balked, and the members sued. The district court granted the GSA's motion to dismiss for lack of standing, but the D.C. Circuit reversed.

The court said that the plaintiffs suffered a cognizable informational injury--that the GSA deprived them of information to which they were entitled, and that their lawsuit would redress that injury. 

The court went on to say that the injury was "personal," and not "institutional," and therefore the individual lawmakers had standing. (A personal injury is a direct harm to a person, or in this case a lawmaker; the harmed individual, even if a lawmaker, has standing to sue. An institutional injury, in contract, is a generalized harm to the institution, in this case the Committee; the Committee would have standing, but not an individual lawmaker.) The court explained:

The Requestors do not assert an injury to institutional powers of functions that "damages all Members of Congress and both Houses of Congress equally." The injury they claim--the denial of information to which they as individual legislators are statutorily entitled--befell them and only them. Section 2954 vested them specifically and particularly with the right to obtain information. The 34 other members of the Committee who never sought the information suffered no deprivation when it was withheld. Neither did the nearly 400 other Members of the House who were not on the Committee suffer any informational injury. Nor was the House (or Senate) itself harmed because the statutory right does not belong to those institutions.

Judge Ginsburg dissented:

The Plaintiff-Members here allege harm to the House rather than to themselves personally. Their theory of injury is that the General Services Administration (GSA), by refusing their request for certain documents, hindered their efforts to oversee the Executive and potentially to pass remedial legislation. The Complaint is clear and consistent on this point: The Plaintiff-Members were harmed through the "impedance of the oversight and legislative responsibilities that have been delegated to them by Congress . . . ."

Court Rebuffs Census Challenge

Steven D. Schwinn, University of Illinois Chicago Law School

The Supreme Court ruled today that the case challenging President Trump's plan to report reapportionment numbers to Congress without accounting for unauthorized aliens was not ripe for judicial review and that the plaintiffs lacked standing to challenge the plan. The Court said nothing about the merits of the case, although its practical effect allows the President to move forward.

The ruling means that the Commerce Secretary can go ahead and report the numbers of unauthorized aliens along with a total head-count to the President, and that the President can go ahead and report apportionment numbers to Congress based on total numbers minus unauthorized aliens.

This is unprecedented. Apportionment has never discounted for unauthorized aliens.

At the same time, it's not at all clear as a practical matter if or how the President will be able to implement this. And even if he does, the plaintiffs can come back and sue later, when they may meet a more friendly Court. (Justices Kavanaugh and Barrett seemed sympathetic to the plaintiffs' arguments during oral argument on the case. They could join Justices Breyer, Sotomayor, and Kagan to rule against the President.)

The case arose when President Trump issued a memo this summer directing the Secretary of Commerce to report two sets of numbers to the President: (1) a raw census total head count; and (2) the number of unauthorized aliens in the country. President Trump wrote that he'd certify apportionment numbers to Congress based on the total head count minus the number of unauthorized aliens in the country. 

This would cause some states (with large populations of unauthorized aliens) to lose representation in Congress. It could also allow some states and local jurisdictions to lose vast amounts of federal funds, which are tied to census numbers. 

Some of those states sued, arguing that President Trump's memo violated the Constitution and federal law, both of which mandate apportionment based on "the whole number of persons in each State, excluding Indians not taxed." 

The Court ruled that the plaintiffs lacked standing, and that the case wasn't ripe for judicial review. In an unsigned opinion, six justices ruled that the plaintiffs' claimed harms--loss of representation and federal funds--weren't certain enough to justify judicial intervention. "At present, this case is riddled with contingencies and speculation that impede judicial review." The Court noted that the President's memo was contingent ("to the extent practicable," for example), and that it's not even clear that the Secretary can compile the data by the statutory deadline. Moreover, it noted that federal funds may not even be affected: "According to the Government, federal funds are tied to data derived from the census, but not necessarily to the apportionment counts addressed by the memorandum."

Justice Breyer wrote a sharp and lengthy dissent, joined by Justices Sotomayor and Kagan. He argued that the plaintiffs had standing and that the case was ripe for review under settled Court precedent, and that the President's memo violated the Constitution and federal law.

Court Rebuffs Religious School Challenge to State School Closing Order

Steven D. Schwinn, University of Illinois Chicago Law School

The Supreme Court yesterday rejected a religious private school's challenge to Kentucky's school-closing order, at least for now, given that the order is set to expire shortly. But the move allows the religious school to renew its challenge should the order come back into effect in January.

The action differs from another Court action earlier this week, remanding a case that challenges Colorado's capacity restrictions as applied to religious services. In the Colorado case, the Court's action, taken together with its earlier ruling in a New York case, will probably end the state's restrictions--even though the state had already revoked its restriction (in light of the New York case). In other words, the Court seemed to stretch to effectively strike Colorado's restrictions. In the Kentucky case, in contrast, the Court declined to intervene because the restriction is set to expire soon. In other words, the Court stayed its hand, even though the restriction was in place at the time of the ruling, because it would soon expire. 

The case tests Kentucky's school-closing order--an order that applies to all schools (secular and religious) in the state. A religious school challenged the order, arguing that it violated the Free Exercise Clause, because a companion order permitted other in-person activities (restaurants, bars, gyms, movie theaters, indoor weddings, bowling alleys, and gaming halls) to remain open. (This, even though the order treated all schools alike.) A district court issued a preliminary injunction against the school closing order, but the Sixth Circuit stayed the injunction pending appeal (so that the order remained valid as the religious school appealed). The Supreme Court denied the religious school's petition to vacate the stay, largely or entirely because it's set to expire soon.

The Court said "[u]nder all circumstances, especially the timing and the impending expiration of the Order, we deny the application without prejudice to the applicants or other parties seeking a new preliminary injunction if the Governor issues a school-closing order that applies in the new year."

Justices Alito and Gorsuch wrote separate dissents, but joined each other's. Justice Alito argued that the Court should've granted relief, because "timing is in no way the applicants' fault." Justice Gorsuch wrote that the Sixth Circuit failed to consider the school-closing order alongside the business-closing order--and therefore failed to compare the closed religious school to open businesses---in evaluating whether the two orders together discriminated against religion. He also argued that the Sixth Circuit failed to consider a "hybrid" claim, that the school-closing order also violated the fundamental right of parents "to direct the education of their children."

Court Strikes Colorado Covid Restriction on Church

Steven D. Schwinn, University of Illinois Chicago Law School

The Supreme Court effectively struck Colorado's previous Covid-19 capacity restriction as applied to a rural Colorado church and its pastor. The Court vacated a lower court's ruling that upheld the restriction and remanded the case with instructions to reconsider it in light of the Court's ruling last month in Roman Catholic Diocese of Brooklyn v. Cuomo.

The ruling means that the lower court will almost certainly strike Colorado's previous restriction as applied to the church. But because the case tests the previous restriction, it'll have no immediate effect on the plaintiffs or the state.

Today's ruling in High Plains Harvest Church v. Polis comes less than a month after the Court struck New York's Covid-19 capacity restrictions as to the plaintiffs in Roman Catholic Diocese. Today's ruling contains no analysis; it simply vacates the lower court ruling and remands the case in light of that earlier ruling.

High Plains tests Colorado's restriction "dial," which previously treated houses of worship more favorably than comparable "indoor events" and "restaurants," but less favorable than certain "critical" businesses. But after the Court ruled in Roman Catholic Diocese--and specifically in order to comply with that ruling--the state changed its dial and removed specific numeric capacity limitations on churches.

Justice Kagan wrote a dissent, joined by Justices Breyer and Sotomayor. She argued that the Court needn't consider the case, because it's moot. 

The state in Catholic Diocese also removed its restriction before that case came to the Court. The difference in High Plains is that Colorado removed its restrictions specifically in response to the Court's ruling in Catholic Diocese. In other words, Colorado is far less likely to reverse its decision, creating a capable-of-repetition-but-evading-review exception to mootness. This suggests that the Court is either loosening up its mootness exception doctrine, or (more likely) reaching for cases to expand religious freedom under the Free Exercise Clause.

Court Says RFRA Authorizes Money Damages Against Fed Officials in their Individual Capacities

Steven D. Schwinn, University of Illinois Chicago Law School

The Supreme Court ruled on Friday that the Religious Freedom Restoration Act authorizes plaintiffs, when appropriate, to obtain monetary damages against federal officials in their individual capacities. 

The case, Tanzin v. Tanvir, tested the limits of RFRA's remedies. The plaintiffs are Muslims who sued federal officers under RFRA for putting them on the No Fly list in retaliation for refusing to act as informants against their religious communities. The plaintiffs sued for injunctive relief and monetary damages under RFRA's remedies provision. The government argued that RFRA didn't authorize monetary damages against federal officials.

The Supreme Court disagreed. Justice Thomas wrote for a unanimous Court (except Justice Barrett, who did not participate). He noted that RFRA's remedies provision says that a person may sue and "obtain appropriate relief against a government," and that RFRA defines "government" to include "a branch, department, agency, instrumentality, and official (or other person acting under color of law) of the United States." Justice Thomas wrote that "official" means an actual person (and not just an office), and that the "acting under color of law" language drew on language from 42 U.S.C. Sec. 1983. That provision authorizes monetary damages against state officials in their individual capacities for violations of the federal Constitution and law. "Because RFRA uses the same terminology as Section 1983 in the very same field of civil rights law, 'it is reasonable to believe that the terminology bears a consistent meaning.'"

Justice Thomas went on to write that monetary damages are "appropriate relief," because "damages have long been awarded as appropriate relief" in suits against government officials. He said that monetary damages were particularly appropriate in a case like this, where only monetary damages could remedy a violation.

He rejected the government's argument that this reading would raise separation-of-powers concerns. "But this exact remedy has coexisted with our constitutional system since the dawn of the Republic. To be sure, there may be policy reasons why Congress may wish to shield Government employees from personal liability, and Congress is free to do so. But there is no constitutional reason why we must do so in its stead."

Court Upholds State Pharmacy Reimbursement Regulation Against ERISA Preemption Claim

Steven D. Schwinn, University of Illinois Chicago Law School

The Supreme Court on Friday upheld Arkansas's law regulating the price that pharmacy benefit managers reimburse pharmacies for the cost of drugs covered by drug-prescription plans against an ERISA preemption challenge. The ruling leaves Arkansas's law in place.

The case, Rutledge v. Pharmaceutical Care Management Association, tested Arkansas's Act 900. That Act requires pharmacy benefit managers (PBMs, who act as intermediaries between prescription-drug plans and pharmacies that use them) to reimburse pharmacies (under the PBMs' maximum allowable cost schedules) at or above the rate that pharmacies paid to buy the drug from a wholesaler. The law was designed to ensure that pharmacies, particularly rural and independent pharmacies, could cover their costs and stay in business.

A national trade association of PBMs sued, arguing that the provision was preempted by the federal Employee Retirement Income Security Act. ERISA pre-empts "any and all State laws insofar as they may not or hereafter relate to any employee benefit plan" covered by ERISA.

The Supreme Court disagreed. Justice Sotomayor wrote for a unanimous Court (except Justice Barrett, who did not participate) that "ERISA does not pre-empt state rate regulations that merely increase costs or alter incentives for ERISA plans without forcing plans to adopt any particular scheme of substantive coverage." She said that Act 900, which is "merely a form of cost regulation," is just such a plan. Moreover, she said that Act 900 doesn't "refer to" ERISA, because it doesn't "act[] immediately and exclusively upon ERISA plans or where the existence of ERISA plans is essential to the law's operation." In short, "it applies to PBMs whether or not they manage an ERISA plan." 

Justice Thomas concurred, and wrote separately to again express "doubt" as to "our ERISA pre-emption jurisprudence." 

Primer on Trump's Electors Clause Claims, Updated

Steven D. Schwinn, University of Illinois Chicago Law School

The Supreme Court on Friday dismissed Texas's suit against Georgia, Pennsylvania, Michigan, and Wisconsin alleging violations of the Constitution's Electors Clause. The ruling was based on Texas's lack of standing--that Texas didn't allege a sufficiently specific and personal harm, caused by the defendants' actions and redressable by the Court, to punch its ticket to the Supreme Court. Importantly, the ruling did not touch the merits, the Electors Clause question.

UPDATE below.

The ruling thus left open a possibility that President Trump or Trump voters (or somebody else with a stronger standing case than Texas) might file similar cases against the same states, also alleging violations of the Electors Clause. (Indeed, a federal court in Wisconsin on Saturday rejected just such a case; more on that below.) So I thought it might be worth a beat to examine this claim.

President Trump and supporters argue that Georgia, Pennsylvania, Michigan, and Wisconsin violated the Constitution's Electors Clause by using election rules that weren't specifically sanctioned by the state legislatures in those states. The Electors Clause, in Article II, Section 1, specifies how states appoint electors to the electoral college; it says, "Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors . . . ." President Trump and his supporters focus on the phrase "in such Manner as the Legislature thereof may direct," and argue that a state legislature--and only a state legislature--has authority to direct how the state appoints electors.

That claim has some support on the Supreme Court. In other election cases this fall, Justices Thomas, Alito, and Gorsuch seemed to endorse it. For example, Justice Alito (joined by Justices Thomas and Gorsuch) wrote in Pennsylvania v. Boockvar that the "question has national importance, and there is a strong likelihood that the State Supreme Court decision [extending the deadline for mail-in votes] violates the Federal Constitution."

The provisions of the Federal Constitution conferring on state legislatures, not state courts, the authority to make rules governing federal elections would be meaningless if a state court could override the rules adopted by the legislature simply by claiming that a state constitutional provision gave the courts the authority to make whatever rules it thought appropriate for the conduct of a fair election.

UPDATE: Justice Alito's opinion in Boockvar was carefully limited to the situation where a state supreme court "override[s] the rules adopted by the legislature." His opinion doesn't extend to situations where a state supreme court merely interprets the rules of the legislature, or where another body acts pursuant to legislative delegation. Justice Alito's opinion, by its own terms, therefore doesn't endorse the strongest version of a legislature-only rule (say, invalidating a state court ruling that merely interprets state law), but instead only a weaker version, where a state court outright "override[s] the rules adopted by the legislature." Many thanks to Professor Bruce Ledewitz, Duquesne, for pointing this out.

(Similarly, in an earlier, unrelated case, Arizona State Legislature v. Arizona Independent Redistricting Commission, Chief Justice Roberts argued in dissent that a similar constitutional provision, the Elections Clause (which gives "the Legislature" of each state the power to regulate "[t]he Times, Places and Manner of holding Elections") does not allow state voters to vest redistricting power in an independent commission. Chief Justice Roberts's position in that case doesn't necessarily mean that he'd also endorse a "legislature-only" reading of the Electors Clause. But it does suggest that he'd at least be open to it.)

Under that "legislature-only" reading of the Electors Clause, President Trump and his supporters argue that Georgia, Pennsylvania, Michigan, and Wisconsin violated the Clause, because executive agencies or courts in those states adopted voting rules that weren't specifically enacted by the legislatures in those states. For example, in Boockvar, the Pennsylvania Supreme Court ordered that the state accept mail-in ballots up to three days after election day, even though state law set an election-day deadline. The court held that the extension was required to comply with the Free and Equal Elections Clause of the state constitution. In other states, executive officials or judges issued similar orders in order to accommodate voters in an age of Covid-19. President Trump and his supporters claimed that these accommodations violated the Electors Clause, because they weren't specifically authorized by the state legislatures.

On the other side, the states argue that the Electors Clause authorizes only state legislatures only to direct the "Manner" of appointing electors--and that the state legislatures did this when they specified under state law that each state's electors would go to the popular-vote winner in the state. The states say that the "Manner" of appointing electors only extends that far--to the specification how a state would appoint its electors (by popular vote, for example)--and not to every jot and tittle of state election administration. Read more broadly, they say that the Clause would allow anyone to successfully challenge in federal court any aspect of the way a state ran a presidential election, so long as it wasn't specifically adopted by the state's legislature--a clearly absurd result. 

Moreover, they say that a state "legislative" act isn't just an act of the "legislature," but rather an act of the state's lawmaking apparatus. This includes the governor's signature, the executive's enforcement, and the state courts' review. (That's what the majority said about the Elections Clause in Arizona State Legislature.)

Finally, even if the Electors Clause means that the legislature--and the legislature alone--can enact the election rules for presidential elections, the states say that they complied, at least with regard to executive enforcement of election law. That's because the legislature delegated authority to enforce the election law to executive agencies. 

A federal court in Wisconsin put these arguments to the test just yesterday, in Trump v. Wisconsin Elections Commission . . . and ruled flatly against the President. The court held that the Wisconsin legislature did direct the manner of appointing electors--by specifying that they'd be appointed according to the popular vote in the state. It held that the "Manner" of appointment didn't extend to particular voting rules and the administration of the election: "[The President's] argument confuses and conflates the 'Manner' of appointing presidential electors--popular election--with underlying rules of election administration." And it held that even if the "Manner" of appointing electors includes election administration, Wisconsin satisfied the Clause, because the state legislature delegated authority to the Wisconsin Elections Commission to make certain rules on the administration of an election.

Stepping back, this is why Trump opponents have argued that Texas's lawsuit, if successful, would have unduly encroached on state sovereignty: because it would've meant that federal courts would've second-guessed every aspect of a state's lawmaking and administration of an election (the legislature's act, the executive's enforcement, and the state courts' say-so as to how it must operate under the state constitution). The Trump position would allow federal courts a free license to invalidate any aspect of election administration that the state legislature did not specifically enact--no matter how much the legislative act violated state law or the state constitution. 

Still, if the question gets to the Supreme Court--a big "if," given all the other problems with these lawsuits--at least three justices seem ready to rule for a "legislature-only" interpretation of the Electors Clause. That position, if endorsed by five justices, could favor President Trump in one or more of these states, where executive officers or judges adopted election rules without specific authorization (as in Wisconsin) from the legislature.

SCOTUS Rebuffs Texas's Challenge to Battleground State Election Results

Steven D. Schwinn, University of Illinois Chicago Law School

The Supreme Court on Friday dismissed Texas's challenge to election results in Georgia, Pennsylvania, Michigan, and Wisconsin for lack of standing. The brief order simply read,

The State of Texas's motion for leave to file a bill of complaint is denied for lack of standing under Article III of the Constitution. Texas has not demonstrated a judicially cognizable interest in the manner in which another State conducts its elections. All other pending motions are dismissed as moot.

Texas argued that it asserted two harms sufficient to satisfy standing: (1) its citizens were harmed in their votes for president by other states' failures to comply with the Elections Clause; and (2) Texas itself was harmed in its role (as a state) in the Senate, where the vice president could break a tie.

The Court's ruling rejects those theories. It did not say anything about the Elections Clause, however. 

Justice Alito filed a statement, joined by Justice Thomas, reiterating their view that the Court lacked "discretion to deny the filing of a bill of complaint in a case that falls within our original jurisdiction."

The ruling ends this challenge. But Trump supporters have already indicated that they'll seek to file similar challenges on behalf of individual voters in these states.

The Court's full docket, with the parties' filings and the many amicus filings, is here.

SCOTUS Says No Standing to Challenge State Political Balancing Requirements

Steven D. Schwinn, University of Illinois Chicago Law School

The Supreme Court ruled this week that a Delaware attorney lacked standing to challenge the state's political balancing requirements for seats on its courts. The ruling means that the Court didn't address the underlying merits question, whether the balancing requirements violate the First Amendment. It also didn't break any significant new ground on standing.

The case, Carney v. Adams, involved Delaware's two political balancing requirements for its courts, the "bare majority" requirement and the "major party" requirement. The bare majority requirement says that no more than a bare majority of judges on any of the state's five major courts "shall be of the same political party." The major party requirement says that judges not in the majority on three of the state's courts "shall be of the other major political party."

Delaware attorney James Adams sued, arguing that the provisions violated his First Amendment right to free association. There was just one problem: Adams failed to show that he was harmed by the two requirements. He hadn't applied for a judgeship and been rejected, and he hadn't even stated a determinate intent to apply for a particular judgeship for which he wouldn't qualify; he only said that he'd like to apply for a judgeship at some undefined point in the future--and that the political balancing requirements would prevent him from getting the job. So the Court ruled that he lacked standing.

Justice Breyer wrote for a unanimous Court. Justice Breyer concluded that Adams failed to show that he was "able and ready" to apply for a judgeship based on three considerations:

First, as we have laid out Adams' words "I would apply . . . " stand alone without any actual past injury, without reference to an anticipated timeframe, without prior judgeship applications, without prior relevant conversations, without efforts to determine likely openings, without other preparations or investigations, and without any other supporting evidence.

Second, the context offers Adams no support. It suggests an abstract, generalized grievance, not an actual desire to become a judge. . . .

Third, if we were to hold that Adams' few words of general intent--without more and against all contrary evidence--were sufficient here to show an "injury in fact," we would significantly weaken the longstanding legal doctrine preventing this Court from providing advisory opinions . . . .

Justice Breyer quoted Justice Powell in United States v. Richardson, reminding us why standing is an important separation-of-powers concern:

[Justice Powell] found it "inescapable" that to find standing based upon [a general interest, common to all members of the public] "would significantly alter the allocation of power at the national level, with a shift away from a democratic form of government." He added that "[w]e should be ever mindful of the contradictions that would arise if a democracy were to permit general oversight of the elected branches of government by a nonrepresentative, and in large measure insulated, judicial branch.

Justice Sotomayor concurred. She wrote to point out that the two requirements were very different and might very well require two different kinds of analysis, if and when this issue comes back to the courts. She also urged lower courts to certify the question of the severability of the two provisions to the state courts.

Ninth Circuit Halts Public Charge Rule

Steven D. Schwinn, University of Illinois Chicago Law School

The Ninth Circuit affirmed a preliminary injunction yesterday that halted the administration's "public charge" rule--the ban on admission of aliens to the United States who are likely to receive certain public benefits for more than 12 months within any 36 month period. But the court vacated a lower court's nationwide injunction; instead, the ruling temporarily halted the rule within the Ninth Circuit and in other outside states that brought the case.

The ruling aligns with similar rulings in the Second Circuit and Seventh Circuit (where then-Judge Amy Coney Barrett dissented), but conflicts with a ruling out of the Fourth Circuit.

Ordinarily, this case would seem destined for the Supreme Court. But DHS may reverse course in the Biden Administration and render it moot.

The case arose when DHS adopted a rule in August 2019 that re-defined "public charge" under the Immigration and Naturalization Act provision that renders inadmissible any alien who is likely to become a "public charge." In particular, DHS defined "public charge" to mean "an alien who receives one or more [specified] public benefits . . . for more than 12 months in the aggregate within any 36-month period."

The change in definition broke with a long history, "from the Victorian Woodhouse to agency guidance in 1999," defining "public charge" to mean dependence on public assistance for survival--and not "short-term use of in-kind benefits that are neither intended nor sufficient to provide basic sustenance."

The court ruled that the 2019 rule was contrary to law and arbitrary and capricious in violence of the Administrative Procedure Act. It held that the rule violated the long-running meaning of "public charge" under the INA and thus violated the Act. It also held that DHS failed to consider the financial impact of the rule and the health consequences of the rule for immigrants and the public as a whole, and failed to explain its reversal in position (from the 1999 guidance).

Judge VanDyke dissented, relying on the reasoning in the Fourth Circuit ruling, then-Judge Barrett's dissent in the Seventh Circuit case, the earlier Ninth Circuit ruling staying a district court injunction pending appeal, and "the Supreme Court's multiple stays this year of injunctions virtually identical to those the majority today affirms."