Constitutional Law Prof Blog

Supreme Court Halts CDC Eviction Moratorium

Steven D. Schwinn, University of Illinois Chicago School of Law

The Supreme Court issued an emergency order late yesterday halting the CDC's eviction moratorium. While the ruling technically only vacates the stay of a lower court ruling striking the moratorium (and allows the government's appeal to move forward, but without a stay of the district court's ruling), it all but decides the underlying merits.

The Court said that the CDC lacked statutory authority to impose the moratorium. The applicable provision, 42 U.S.C. Sec. 264(a), states:

The Surgeon General, with the approval of the [Secretary of Health and Human Services], is authorized to make and enforce such regulations as in his judgment are necessary to prevent the introduction, transmission, or spread of communicable diseases from foreign countries into the States or possessions, or from one State or possession into any other State or possession. For purposes of carrying out and enforcing such regulations, the Surgeon General may provide for such inspection, fumigation, disinfection, sanitation, pest extermination, destruction of animals or articles found to be so infected or contaminated as to be sources of dangerous infection to human beings, and other measures, as in his judgment may be necessary.

In short, the Court said that the moratorium exceeded this authority, because it wasn't in line with the kind of specific examples in the second sentence. In other words, it read the second sentence as limiting the authority in the first sentence. It said that if the statute authorized the moratorium, then it could authorize nearly any measure--"a breathtaking amount of authority"--and this goes too far. The Court also said that Congress was "on notice" but failed to enact legislation to specifically reauthorize the moratorium. (Congress had previously specifically authorized the moratorium in COVID relief legislation, but that authorization lapsed, leaving only Section 264(a) as possible authority for the moratorium.)

The Court said that "[t]he applicants not only have a substantial likelihood of success on the merits--it is difficult to imagine them losing."

Justice Breyer dissented, joined by Justices Sotomayor and Kagan. He read the statute just the opposite--that the first sentence plainly authorizes a moratorium, and that the second sentence, if anything, only expands the authority in the first sentence. Justice Breyer also focused on the moratorium's tailoring (geographic and otherwise), and the harm that would likely result to tenants under the Court's holding.

The ruling halts the CDC's eviction moratorium. But Congress could change this by specifically reauthorizing the CDC to issue a moratorium.

The ruling does nothing to state and local moratoriums; it only addresses the CDC's moratorium.

Fifth Circuit Tosses Case Challenging Removal of Confederate Monument

Steven D. Schwinn, University of Illinois Chicago School of Law

The Fifth Circuit dismissed a case challenging San Antonio's removal of a monument of a confederate soldier for lack of standing. The ruling ends the challenge. (The statue is already gone.)

The case, Albert Sidney Johnston v. San Antonio, arose when the city removed a confederate monument in a public park. ASJ sued, arguing that the removal violated the First and Fourteenth Amendments.

The court held that ASJ lacked standing. It recognized that ASJ is the successor organization to the Barnard E. Bee chapter of the United Daughters of the Confederacy, which erected the monument in the first place. But it said that ASJ had no property interest in the public park (because "the land was generally inaliable and unassignable") and no right to use the land; and therefore the organization couldn't allege a harm under the First or Fourteenth Amendments.

Sixth Circuit Upholds Michigan Schools Mask Mandate Against Free Exercise, Equal Protection Claims

Steven D. Schwinn, University of Illinois Chicago School of Law

The Sixth Circuit yesterday upheld Michigan's mask mandate in schools against free exercise and equal protection challenges. The mandate expired since the lawsuit began, however, so the ruling only means that Michigan didn't violate the Constitution in implementing the mandate, and that it (and other jurisdictions in the Sixth Circuit) can do it again.

The case, Resurrection School v. Hertel, tested the Michigan Department of Health and Human Service requirement that all persons five years of age and older wear a mask in indoor public settings, including while attending public and private K-12 schools. The requirement contained certain exceptions for eating and drinking, for those "engaging in a religious service," for those who have health conditions that restrict their mask wearing, and others. Resurrection sued, arguing that the mandate violated free exercise and equal protection, among other claims.

While the case was pending, the Department rescinded the mask requirement. The Sixth Circuit nevertheless ruled that the case wasn't moot under the voluntary-cessation and capable-of-repetition-but-evading-review exceptions.

On the merits, however, the court rejected the plaintiffs' claims. The court ruled that the mask requirement was a religiously neutral law of general applicability, and easily satisfied rational basis review. As to religious neutrality, the court declined to look outside the schools for a secular comparator to religious schools (like gyms or movie theaters, as some courts have done), which might've demonstrated that the Department was targeting religious schools; instead, it said that the mask requirement treated religious schools exactly as it treated secular schools--the relevant comparator here.

Identifying a comparable secular activity for religious schools other than a public or private nonreligious school is difficult. Schools educating students in grades K-5 are unique in bringing together students not yet old enough to be vaccinated against COVID-19 in an indoor setting and every day. Accordingly, the proper comparable secular activity in this case remains public and private nonreligious schools.

Even under this broader conception of comparable secular activity, the [Department] orders are not so riddled with secular exceptions as to fail to be neutral and generally applicable. . . .

The court also rejected the plaintiffs' equal protection and substantive due process claims, holding that these were merely repackaged free exercise claims.

Ninth Circuit Declines to Halt LA's Eviction Moratorium under Contracts Clause

Steven D. Schwinn, University of Illinois Chicago School of Law

The Ninth Circuit denied a landlord association a preliminary injunction against Los Angeles's eviction moratorium, imposed in response to COVID. The court ruled that the landlords failed to demonstrate that they were likely to succeed on their Contracts Clause claim.

This appears to be the first appeals court ruling on an eviction moratorium under the Contracts Clause. Recall that the Supreme Court recently ruled against New York's eviction pause for self-certified hardship sufferers. But that case was under the Due Process Clause, not the Contracts Clause.

Neither case necessarily speaks to the validity of the CDC's moratorium. That's because opponents of the CDC's moratorium have raised a different claim--that the CDC lacked authority to impose it.

The case, Apartment Association v. City of Los Angeles, tested LA's eviction moratorium, which, among other things, restricted landlords' ability to evict tenants who suffered a COVID-related hardship. A landlord association sued, arguing that the moratorium violated the Contracts Clause, among other things. The association sought a preliminary injunction, but the district court denied the motion, and the Ninth Circuit affirmed. (While the association raised other claims, the Ninth Circuit ruling only addressed the Contracts Clause, because that's the only basis on which the association appealed.)

The court applied the two-part framework most recently articulated in Sveen v. Melin (2018). The court assumed without deciding that the association satisfied the first part--that the moratorium was a substantial impairment of a contractual relationship. Even if, the court said that the association failed to meet the second part--that the moratorium was an inappropriate or unreasonable way to achieve a significant and legitimate public purpose. The court wrote that "[t]he City fairly ties the moratorium to its stated goal of preventing displacement from homes, which the City reasonably explains can exacerbate the public health-related problems stemming from the COVID-19 pandemic."

The court rejected the association's effort to shoehorn a requirement into the Contracts Clause application to eviction moratoriums that would require that landlords receive reasonable rent during the period of the moratorium. The court said that the association ground this claim in earlier and outdated pre-Blaisdell caselaw that no longer guides the Court's approach to the Contracts Clause, and, in any event, those cases don't require that landlords receive reasonable rent during a moratorium. (Reasonable rent is a factor in the analysis, but it's not determinative.)

Supreme Court Denies Biden Administration Effort to Halt MPP Pending Appeal

Steven D. Schwinn, University of Illinois Chicago School of Law

The Supreme Court denied the Biden Administration's request for a stay pending appeal of a lower court order directing the Biden Administration to reinstate the Migrant Protection Protocols program initiated by the Trump Administration. We posted on the lower court's order here.

The ruling means that the Biden Administration must send immigrants along the southern border to Mexico pending their asylum and deportation proceedings, consistent with the MPP, pending the Administration's appeal of the district court's order.

The ruling is a blow to the Biden Administration's effort to halt the controversial program. And while it's only preliminary--the ruling technically only orders the Biden Administration to reinstate the MPP program pending the Administration's appeal on the merits--it also doesn't bode well for the Administration. The very brief order stated that the Administration "failed to show a likelihood of success on the claim that the memorandum rescinding the Migrant Protection Protocols was not arbitrary and capricious." (In support, the Court cited Department of Homeland Security v. Regents of University of California, in which the Court rejected the Trump Administration's effort to rescind DACA as arbitrary and capricious in violation of the Administrative Procedure Act.)

Justices Breyer, Sotomayor, and Kagan indicated that they would have granted the Administration's motion for a stay, but they didn't say why.

Fourth Circuit Says Fed Courts Can't Hear State Claims of Teacher Fired for Using Wrong Pronouns for Student

Steven D. Schwinn, University of Illinois Chicago School of Law

The Fourth Circuit on Friday ruled that the federal courts lacked jurisdiction to hear a case of a Virginia teacher who was fired for using an incorrect pronoun for a student. The ruling means that the teacher's claims stay in the Virginia state courts.

The case, Vlaming v. West Point School Board, arose when teacher Peter Vlaming was fired for refusing to use a male pronoun for a student who recently gender-transitioned to male. Vlaming sued in Virginia state court, arguing that his termination violated state constitutional due process, free speech, and free exercise, and state statutory rights--all state claims. The Board moved to remove the case to federal court, arguing that Vlaming's complaint raised federal Title IX issues (because Title IX compelled the Board to take action against Vlaming), and that Vlaming's state constitutional claims turned on the parallel federal constitutional provisions, because Virginia interprets these state constitutional provisions in lock step with the federal Constitution.

The Fourth Circuit rejected the arguments. It ruled that a federal defense alone (here, Title IX) can't create federal jurisdiction where the complaint alleges no federal jurisdiction, and that Virginia's practice of interpreting its constitution in lock step with the federal Constitution can't create federal jurisdiction, because Virginia isn't required to interpret its constitution in this way, and it might not in any given case (including this one).

The ruling means that the federal courts won't hear the case. But Vlaming and the Board can make their arguments (including the Board's Title IX defense) when it proceeds in state court.

Arizona Supreme Court Says High-Income Tax is Subject to Education Expenditure Clause

Steven D. Schwinn, University of Illinois Chicago School of Law

The Arizona Supreme Court ruled that an income tax surcharge on high-income earners, the proceeds of which go to schools, is subject to the education expenditure caps in the state constitutional Education Expenditure Clause. The ruling will likely sharply limit the amount of tax-surcharge revenue that can go to the schools, sharply limiting the voter initiative that created the mechanism in the first place.

The case, Fann v. State of Arizona, tests the constitutionality of Prop 208, a 2020 voter initiative that imposes an income tax surcharge on high-income earners to provide direct funding to the schools. Prop 208 imposes a 3.5 percent surcharge on high-income earners, places those funds in a "student support and safety fund," and requires the fund to distribute the revenue to school districts and charter schools through "grants."

High-income earners sued, arguing that the provision violates the state constitutional Education Expenditure Clause on its face. This Clause, adopted by Arizona voters in 1980, sets an "aggregate expenditure limitation" for each Arizona school district. Put simply, it creates a cap on educational expenditures for each district. The provision contains an exception, however, for "grants, gifts, aid or contributions of any type except amounts received directly or indirectly in lieu of taxes received directly or indirectly from any private agency or organization, or any individual." The plaintiffs' challenge, therefore, raises the question whether Prop 208 is really a "grant" program.

The court ruled that it's not. "Considering the context of the Grant Exception, and in light of canons of construction, we conclude the more plausible reading of the Grant Exception is that the language 'received directly or indirectly from any private agency or organization, or any individual' modifies the entire sentence and limits the word 'grants' to private, non-governmental voluntary contributions." The court ruled that Prop 208 is facially unconstitutional insofar as it "incorrectly characterizes the allocated monies" to circumvent the Education Expenditure Clause and "to the extent allocated revenues exceed the expenditure limit set by the Education Expenditure Clause."

The court remanded the case to determine "whether such payments will in fact exceed the constitutional expenditure limitation." But it gave a clue as to how this'll all come out:

if the expenditure limit remains at current levels, Prop. 208's projected $827 million in revenues will far outpace its permissible spending, even accounting for Prop. 208 expenditures that are not subject to the expenditure limit. Furthermore, the EEC projects that the expenditure limit amount will decrease by 4.6%, or approximately $300,000,000. These facts strongly suggest that Prop. 208 will produce far more revenue than it can constitutionally spend.

The court also held that Prop 208 did not violate the state constitutional Tax Enactment Clause. That Clause says that an "Act that provides for a net increase in state revenues" has to get a super-majority in each house and the governor's signature to become effective. The court said that the Clause doesn't apply to voter initiatives like Prop 208, however, because a voter initiative isn't an "Act": the legislature enacts "Acts," while voter initiatives are "measures."

Tenth Circuit Strikes Portions of Kansas Farm Animal Protection Act under First Amendment

The Tenth Circuit ruled that three part of the Kansas Farm Animal and Field Crop and Research Facilities Protection Act violated free speech. The ruling enjoins the government from enforcing those provisions.

The case, Animal Legal Defense Fund v. Kelly, tests three part of the Act, which, as a general matter criminalizes certain actions directed at an animal facility without effective consent of the owner of the facility and with intent to damage the enterprise of the facility. ALDF sued, arguing that the Act violated free speech, because ALDF investigators sometimes lie about their association with ALDF in order to get jobs at the facilities under cover, and would therefore violate the Act.

The Tenth Circuit agreed. The court examined three parts of the Act: subsection (b), which forbids acquiring or exercising control over an animal facility without effective consent of the owner and with intent to damage the enterprise; subsection (c), which forbids recording, attempting to record, or trespassing to record on an animal facility's property without effective consent of the owner and with intent to damage the enterprise; and subsection (d), which forbids trespassing on an animal facility without effective consent of the owner and with intent to damage the enterprise. The court ruled that these were viewpoint-based restrictions on speech (because they each require the "intent to damage the enterprise," as opposed, for example, to laud the enterprise), and subject to strict scrutiny. The court said that Kansas didn't even bother to try to justify the provisions under strict scrutiny, and therefore they failed.

Judge Hartz dissented, arguing, among other things, that property owners have a right to exclude that the majority's approach ignores; "that a fraudulently obtained consent to enter another's property, particular the type of entry desired by Plaintiffs, is not protected by the First Amendment"; and that the court should've excised any offending elements of the Act rather than ruling them unconstitutional.

Ninth Circuit Tosses OAN's Defamation Suit Against Rachel Maddow

Steven D. Schwinn, University of Illinois Chicago School of Law

The Ninth Circuit ruled this week that OAN failed to state a case for defamation against MSNBC host Rachel Maddow for stating that OAN "really literally is paid Russian propaganda." The ruling ends OAN's defamation suit.

The case, Herring Networks, Inc. v. Maddow, arose when Maddow ran a segment on OAN reporter Kristen Rouz, who, according to a story in the Daily Beast, also wrote stories for pay for Sputnik. At one point during the longer segment, Maddow said, "In this case, the most obsequiously pro-Trump right wing news outlet in America really literally is paid Russian propaganda." Herring then sued for defamation, and Maddow moved to strike the complaint under California's anti-SLAPP statute.

The Ninth Circuit ruled for Maddow. The court examined the broad context of the statement, the limited context of the statute, and the ability to determine the truth or falsity of the statement and concluded that it simply wasn't a statement of fact that could support a defamation claim:

In sum, two of the factors outlined in [circuit precedent]--the general context and the specific context of the contested statement--negate the impression that the statement is an assertion of objective fact. While the third factor [the ability to determine the truth or falsity of the statement] tilts in the other direction, we conclude that Maddow's contested statement fits within "the 'rhetorical hyperbole' [that] has traditionally added much to the discourse of our Nation."

Court Temporarily Stays District Judge Order in MPP Case

Steven D. Schwinn, University of Illinois Chicago School of Law

In an order by Justice Alito, the Supreme Court late yesterday temporarily stayed the district court injunction directing the Biden Administration to reinstate former President Trump's MPP policy until Tuesday at midnight. The brief order will allow the full Court to consider the Biden Administration's emergency application for a stay pending appeal.

Recall that the district court issued a permanent, nationwide injunction directing the Biden Administration to reinstate the MPP policy and send certain immigrants to Mexico pending their deportation proceedings. The Administration sought a stay of the injunction pending appeal, but the Fifth Circuit declined. The Administration then sought an emergency stay at the Supreme Court.

The Supreme Court's order temporarily stays the injunction until Tuesday. It also directs the plaintiffs in the case to file their response to the Administration's emergency application by 5 p.m. on Tuesday. A Court order will presumably follow before midnight Tuesday.

All this is still preliminary, though: the Biden Administration is still pursuing its appeal on the merits to the Fifth Circuit. The Court's ruling late yesterday only means that the Biden Administration need not reinstate the MPP policy pending its appeal of the district court order until Tuesday, and perhaps later, depending on what the Court says.

The Court's docket for the case is here.

Fifth Circuit Rejects First Amendment Retaliation Claim for Union Activities

Steven D. Schwinn, University of Illinois Chicago School of Law

The Fifth Circuit earlier this week rejected free-speech and free-association claims of a public employee, who was also a public-union leader, after he was terminated for performance reasons. The court also rejected the plaintiffs' class-of-one equal protection claim.

The case, United Steel v. Anderson, arose when Sergio Castilleja, a community service officer for the Bexar County Community Supervision and Corrections Department, was terminated for violating Department rules and other performance issues, including using Department equipment for union activities. But prior to his termination, Castilleja had been elected president of the Bexar County Probation Officers Association, and, in that role, oversaw a no-confidence petition against the Department chief, Jarvis Anderson. When he was fired, Castilleja's children and various unions sued, arguing that the Department terminated him for his union activities in violation of the First Amendment and that the Department treated him differently than officers in other unions in violation of equal protection.

The Fifth Circuit rejected the claims. The court ruled that the Department provided a legitimate, non-speech and non-association reason for his termination--his performance deficiencies--and that the plaintiffs failed to show that this reason was a pretext for reprisal for protected speech and association. The court also ruled that the unions' equal protection argument failed, because under Engquist v. Oregon Department of Agriculture class-of-one equal protection claims (where one person alleges unequal treatment as compared to similarly situated persons) don't apply to discretionary public-employment decisions.

Fifth Circuit Strikes Fee for Latex Clubs

Steven D. Schwinn, University of Illinois Chicago School of Law

The Fifth Circuit ruled that a $5 per person fee for "latex clubs" in Texas violated free speech and due process. The ruling means that state authorities can't enforce the fee against sexually oriented clubs where dancers wear opaque latex breast coverings and shorts.

The case, Texas Entertainment Association v. Hegar, arose when Texas enacted a "sexually oriented business" fee that imposed a $5 charge per customer on businesses that serve alcohol in the presence of nude entertainment. In response, some sexually oriented businesses required dancers to wear opaque latex breast coverings and shorts. The gambit allowed these "latex clubs" to dodge the $5 fee for a good eight years, until the Texas comptroller issued a rule that excluded latex from the definition of "clothing" under the law. The rule meant that latex clubs now had to pay the fee.

The TEA, which represents sexually oriented businesses in Texas, sued, arguing that the comptroller's move violated free speech, due process, and equal protection. The Fifth Circuit agreed, except as to equal protection.

The court ruled that the comptroller's redefinition was a content-based restriction on speech (and not content-neutral), because the comptroller produced no evidence that the redefinition served any non-speech purpose (like reducing the secondary effects of latex clubs). (The court declined to shoehorn the state's initial asserted interest behind the $5 fee--reducing secondary effects--into the comptroller's decision, more than eight years later, and based on no evidence.) The court applied strict scrutiny, and ruled that the comptroller's action failed.

The court also ruled that the comptroller's action violated due process. The court said that the comptroller previously declined to impose the fee on latex clubs--indeed, that the comptroller told one club that "everything was good"--and upset the latex clubs' "settled expectation that they would not be subject to" the fee.

Finally, the court ruled that the action didn't violate equal protection. The court said that latex clubs were more like nude dancing establishments (which were already subject to the fee), and not like sports bars (which were not). Because the move did not treat similarly situated businesses differently (latex clubs aren't similar to sports bars), the court ruled that it didn't violate equal protection.

Third Circuit Allows Case Challenging Firing Range Zoning Restrictions to Move Forward

Steven D. Schwinn, University of Illinois Chicago School of Law

The Third Circuit ruled earlier this week that a lower court erred in dismissing a shooting-range owner's challenge to two local zoning ordinances that restrict how and where a shooting range can operate. The ruling is preliminary: it only means that the case can move forward to the merits, and that the local government, Robinson Township, Pennsylvania, has a chance to show that its zoning rules survive Second Amendment scrutiny. 

The case, Drummond v. Robinson Township, tests two zoning ordinances that affect the plaintiff's gun range. The first ordinance limits gun clubs to "pistol range, skeet shoot, trap and skeet, and rim-fire rifles," and disallows center-fire rifles. The second ordinance prohibits a for-profit entity from running a shooting range in one of the Township's zoning districts, but allows them in two others.

The district court dismissed the complaint, ruling that the plaintiff failed to establish a Second Amendment case. But the Third Circuit reversed.

The court ruled first that the ordinances were subject to Second Amendment scrutiny. The court ruled that "neither type of regulation rests on deep historical foundations, so both challenged rules attract heightened scrutiny."

The court next applied intermediate scrutiny. It ruled that "[a]t the outset, there is no doubt that the ordinance promotes a substantial government interest. It aims to advance 'public health, safety and welfare.'" But it went on to say that the Township failed at this stage of the litigation to show that its ordinances were sufficiently tailored to meet that interest. It said that because the ordinances were "outliers," the wind was against them. (That's because "[w]hen a challenged law has few analogues, it raises concern 'that the [government] has too readily foregone options that could serve its interests just as well, without substantially burdening' protected conduct.'") It also said that the Township (again, at this early stage of the litigation) failed to show that it "'seriously considered' more targeted tools for achieving its ends."

The court remanded the case for further proceedings.

Texas Supremes Say State House Can Arrest Absent Members

Steven D. Schwinn, University of Illinois Chicago School of Law

The Texas Supreme Court ruled earlier this week that present members of the Texas House of Representatives can order the arrest and detention of absent House members under the state constitution and House rules.

The case, In re Greg Abbott, arose when Texas House Democrats fled the state in order to deny the House a quorum to pass voting restrictions. (A quorum for the state House is two-thirds of the members.) Present members voted to invoke House Rule 5, which authorizes a bare majority to "arrest" absent members. The absent members sued to halt the move, and the lower court issued a temporary restraining order prohibiting the House from arresting them. The Texas Supreme Court reversed.

The court pointed to Article III, Section 10 of the Texas Constitution, which provides that while two-thirds of a state legislative chamber "constitute[s] a quorum to do business," "a smaller number" may "compel the attendance of absent members, in such manner and under such penalties as each House may provide." According to the court, "[j]ust as article III, section 10 enables 'quorum-breaking' by a minority faction of the legislature, it likewise authorizes 'quorum-forcing' by the remaining members." The court wrote,

After examining the text and history of article III, section 10, together with the relevant judicial precedent, we conclude that the disputed provision means just what it says. . . . The text of article III, section 10 is clear, and the uniform understanding of the provision throughout our state's history--including around the time of its enactment--has been that it confers on the legislature the power to physically compel the attendance of absent members to achieve a quorum.

The court pointed to language in Kilbourn v. Thompson (1880), which interpreted the parallel provision in the U.S. Constitution, as persuasive authority. It wrote, "In Kilbourn, the U.S. Supreme Court's interpreted the federal constitution's quorum-forcing language to vest expansive power in Congress to determine the 'Manner' by which to compel 'the Attendance of absent Members.' In the Court's words, 'the penalty which each House is authorized to inflict in order to compel attendance of absent members may be imprisonment.'"

Check it Out: Lupu and Tuttle on Fulton and the Future of Free Exercise

You gotta check out Chip Lupu and Bob Tuttle's outstanding piece on Fulton and the future of free exercise, The Radical Uncertainty of Free Exercise Principles: A Comment on Fulton v. City of Philadelphia, forthcoming in the American Constitution Society Supreme Court Review (OT19 Term's here). In addition to reviewing Fulton and examining the opinions (you'll especially want to check out their critique of Justice Alito's opinion), Lupu and Tuttle integrate the Court's COVID cases into the trend line and argue that

[t]hese moves, taken to their logical end, effectively undo Smith. The history of Free Exercise Clause adjudication, however, suggests that neither the Supreme Court nor the lower courts will take the Free Exercise Clause to the religion-favoring extremes that this trend invites.

Read it.

Sixth Circuit Upholds Tenured Prof's Termination, Rebuffs Due Process, First Amendment Claims

Steven D. Schwinn, University of Illinois Chicago School of Law

The Sixth Circuit ruled that the University of Louisville did not violate procedural due process or free speech when it disciplined and later terminated a tenured professor and department chair for signing an unauthorized lease on behalf of the department and meeting with private equity firms interested in buying or financing the department.

Dr. Henry J. Kaplan, tenured prof and Chair of UofL's Department of Ophthalmology and Visual Sciences, sued the school after it fired him for signing the lease and meeting with potential investors. Kaplan argued that his termination violated due process, his reputation and career interests, and academic freedom. The court rejected each claim.

As to due process, the court ruled that Kaplan didn't have a property interest in his administrative position (chair of the department), so due process didn't apply. It ruled that the school's process for terminating his tenured professorship satisfied due process, because the school notified Kaplan of the issues prior to any disciplinary action; it terminated him pursuant to school rules that allow the school to terminate a faculty member for "[n]eglect of or refusal to perform one's duty" that "substantially impairs [their] effectiveness as a faculty member"; it conducted a post-termination hearing (a "Cadillac plan of due process"); and an alternative pre-deprivation hearing wouldn't have been any more protective of Kaplan's property right in his faculty position.

The court held that Kaplan forfeited any reputational-interest claim because he didn't request a name-clearing hearing. It ruled that the school didn't violate his career interest, because it didn't prevent Kaplan from seeking future employment in his chosen career.

Finally, the court ruled that Kaplan misfired on his academic freedom claim. "Simply put, UofL suspended Kaplan because of his attempts to circumvent UofL's cost-control measures and not because of any ideas he advocated or research he conducted."

Fifth Circuit Upholds Ban on Common Previability Abortion Procedure

Steven D. Schwinn, University of Illinois Chicago School of Law

The full Fifth Circuit upheld Texas's ban on a common second-trimester, previability abortion procedure, ruling that the law didn't create an undue burden on a woman's right to abortion. The law and ruling limit the way doctors can perform a "dilation and evacuation" abortion in Texas: they cannot use forceps to separate, terminate, and remove the fetus (what the state calls a "live dismemberment" procedure); instead they can only use a suction technique to remove a fetus, or cause "fetal death" (through digoxin injections) prior to removing the fetus with forceps.

The ruling also deepens a circuit split over the Court's controlling opinion--and the operative test for abortion restrictions--in June Medical.

The case, Whole Woman's Health v. Paxton, tests Texas's restriction on the common D&E procedure for second-semester, previability abortions. Doctors who perform these abortion use one of three principal methods: (1) they use a suction method alone to terminate, separate, and remove a fetus; (2) they use suction and forceps together to terminate, separate, and remove a fetus; or (3) they use "fetal-death" techniques (like digoxin injections) to terminate the fetus before removing it with forceps. The Texas law bans the use of the second technique, except in cases of a "medical emergency."

The court ruled--contrary to the district court--that the law wasn't facially unconstitutional. In short, it held that the ban didn't create an undue burden on a woman's right to abortion, because the law allowed doctors to perform abortions using the suction method alone, or by causing "fetal death" prior to fetal evacuation.

Along the way, the court held that Chief Justice Roberts's opinion in June Medical was the Court's controlling opinion (under the Marks) rule, and so it didn't have to balance the burdens of the law against the state's asserted benefits of the law; instead, it examined only whether the law created an undue burden. (The balancing test used by the plurality in June Medical tends to work in favor of a woman's right to abortion, especially where, as here and in June Medical, the state asserts only weak (or no) benefits from the restriction. Chief Justice Roberts's approach tends to work against a woman's right to abortion in those situations, because it ignores the state's relatively weak benefits, or its lack of benefits altogether.) The court's ruling on this score aligns it with the Eighth and Sixth Circuits, but puts it at odds with the Seventh and Eleventh Circuits.

Five judges dissented. Three of the dissenters argued that the case was controlled by Stenberg v. Carhart (2000), where the Court overturned a state restriction that operated just like Texas's law. Moreover, these three said that the suction method and the "fetal-death" method both created undue burdens on a woman's right to abortion, because both procedures created additional risks, and that those risks outweighed the state's asserted benefits of the law. (The dissenters applied the balancing test (not Chief Justice Roberts's approach) from June Medical.)

Two other dissenters argued that the court should've simply remanded the case after clarifying that Chief Justice Roberts's approach would control, and clarifying the court's views on the Supreme Court's abortion jurisprudence more generally.

Ninth Circuit Affirms Constitutionality of Department of Labor ALJs

Steven D. Schwinn, University of Illinois Chicago School of Law

The Ninth Circuit ruled that removal protections for Department of Labor Administrative Law Judges did not violate the separation of powers. The ruling rebuffed a claim by a coal corporation in a Black Lung Benefits Act case. It means that the agency ruling against the corporation stands, and that DOL ALJs are safe . . . for now.

That "for now" is because the Supreme Court has been on a tear to rule that more and more removal protections violate the separation of powers. This case could give the Court another opportunity to move in the direction of complete presidential control over the removal of executive officers--toward a robust "unitary executive theory."

The case, Decker Coal v. Pehringer, arose after a DOL ALJ awarded a claimant Black Lung Benefits Act benefits, and the Benefits Review Board upheld the award. Decker Coal filed a motion for reconsideration and a motion to reopen the record; the ALJ denied the motions, and the BRB affirmed. This appeal followed.

The Ninth Circuit rejected Decker Coal's argument that removal protections for DOL ALJs violated the separation of powers. By statute, DOL ALJs can be fired only for good cause determined by the Merit Systems Protection Board, members of which, in turn, can be removed by the president only for "inefficiency, neglect of duty, or malfeasance in office." Decker claimed that the dual for-cause removal protection violated the Court's ruling in Free Enterprise Fund, which held that the dual for-cause removal protection for members of the PCAOB violated the separation of powers. The Ninth Circuit disagreed, for three reasons.

First, the court ruled that in contrast to PCAOB members, "the ALJ here was performing a purely adjudicatory function in deciding the BLBA claim."

Next, the court said that DOL itself decided to use ALJs to adjudicate BLBA benefits. It noted that by statute DOL could have used any "[q]ualified individuals appointed by the Secretary of Labor," including individuals who did not enjoy for-cause removal protections, and that the president could order DOL to use such individuals instead of ALJs. In other words, the court said that Congress didn't impermissibly encroach upon the president's power to direct the executive branch; DOL (and ultimately the president) did, and they can change it if they like.

Finally, the court said that the president can exercise control of ALJs through the BRB, which reviews ALJ decisions, and members of which are appointed without removal protections by the Secretary of Labor (who, of course, enjoys no removal protections).

Ninth Circuit Rejects Civil Damages Claim for Border Shooting

Steven D. Schwinn, University of Illinois School of Law

The Ninth Circuit rejected civil damage claims by the family of a Mexican victim who was shot dead on the U.S.-Mexico border by a U.S. Border Patrol officer. The ruling leaves the family without a civil damage remedy for the shooting.

The case, Perez v. U.S., arose when a U.S. Border Patrol officer shot and killed a Mexican citizen on the U.S. side of the U.S.-Mexico border fence. Although the parties differ as to the facts, it appears that the Officer shot the victim after the victim threw, or threatened to throw, rocks. (Border Patrol policy apparently authorizes officers to use deadly force against individuals who throw rocks. This is called the "Rocking Policy.")

The victim's family sued under the Alien Tort Statute, the Federal Tort Claims Act, and Bivens. The Ninth Circuit rejected each of the claims.

As to the ATS claim, the court said that the U.S. hadn't waived sovereign immunity, and that an ATS claim doesn't circumvent immunity. Even if the plaintiffs alleged a violation of international law, the court said that U.S. sovereign immunity prevented them from succeeding in an ATS claim.

As to the FTCA claim, the court said that the plaintiffs filed out of time, and failed to satisfy requirements for equitable tolling. In particular, the court said that the plaintiffs mistakenly believed that they couldn't simultaneously file an FTCA claim and a Bivens claim (which is why they didn't initially file an FTCA claim within time), when circuit precedent said that they could. Because they made a mistake of law, the court said that it couldn't toll the FTCA statute of limitations.

Finally, as to Bivens, the court ruled that the case raised a new Bivens context, and that special factors counseled against extending a Bivens remedy. In particular, the court said that the plaintiffs' claim against the Border Patrol Chief (for failing to reverse the Rocking Policy) would improperly involve the court in formulating and implementing policy. And the court said that the plaintiffs' claims against the officer who shot the victim raised national security concerns.

The court acknowledged that the ruling left the family without a civil damage remedy for the killing. But it also said expressed "regret that the law compels this result."

Full Seventh Circuit Keeps Challenge to State Sex Offender Registration Alive

Steven D. Schwinn, University of Illinois Chicago School of Law

The full Seventh Circuit today rebuffed certain constitutional challenges to Indiana's Sex-Offender Registration Act (SORA) as applied to pre-Act offenders required to register in another state. At the same time, however, the court remanded an equal protection claim for further consideration.

The ruling means that the plaintiffs still have a live challenge to the Act. And, given the court's remand instruction and the lower court's earlier ruling, it's likely a winning one.

The case, Hope v. Commissioner of Indiana Department of Correction, tests Indiana's SORA as applied to pre-act offenders who were required to register in another state before SORA's enactment. That matters, because the Indiana Supreme Court interpreted the Act not to require Indiana pre-Act offenders to register. (It said that requiring registration would violate the state constitution's Ex Post Facto Clause.) So Indiana's SORA requires pre-Act offenders to register if they were required to register in another state before SORA. But it doesn't require pre-Act offenders to register if they had no pending out-of-state registration requirement.

Offenders with an out-of-state requirement sued, arguing that the Act, as interpreted by the state supreme court, violated their right to travel, the federal Ex Post Facto Clause, and equal protection. The district court ruled in the plaintiffs' favor on all claims, and a panel of the Seventh Circuit affirmed on the right to travel claim. The full court reversed.

The court ruled that the scheme didn't violate the right to travel under the Fourteenth Amendment Privileges or Immunities Clause--"for those travelers who elect to become permanent residents, the right to be treated like other citizens of that state." That's "because it does not expressly discriminate based on residency, as consistently required by the Supreme Court." Instead, the court said that while the Act "may affect newer residents disproportionately,"

[a]s a statutory matter, SORA obligates all offenders--both old and new residents--to register based on prior convictions. Indiana's Ex Post Facto Clause then relieves a subset of those who must register from that statutory obligation. Receiving the clause's benefits, though, does not depend on when an offender became an Indiana resident but on whether one is subject to an existing registration requirements. That requirement can come from Indiana, or from another state. The twist in this case is that for those offenders like the plaintiffs, convicted before Indiana's SORA covered their crimes, such a registration obligation must come from elsewhere.

(The dissent argued that this different treatment--based solely on whether a pre-Act offender has traveled to another state or not--is the model of infringing on the right to travel.)

The court next ruled that SORA didn't violate the federal Ex Post Facto Clause, because the registration requirement isn't punitive.

But the court remanded the question whether SORA violated the Equal Protection Clause under rational basis review--and all but invited the district court to rule in favor of the plaintiffs. The court wrote,

The plaintiffs may still challenge Indiana's application of SORA to them because it treats them differently than similarly situated Indiana offenders. SORA, as modified by the Indiana Supreme Court's constitutional overlay, creates two classes of pre-SORA offenders--those who must register in Indiana, and those who are free from that requirement. Indiana distinguishes between the two groups based solely on whether the pre-SORA offender had a registration obligation in another state. For example: two lifelong Indiana residents, both with pre-SORA convictions, will be treated differently if one commutes into Chicago for work--and so is subject to Illinois's reporting requirements--while the other never leaves Indiana. The distinction holds true for offenders who attend school in another state or who have lived in another state imposing registration obligations on them. In short, two similarly situated Indiana offenders may have vastly different legal obligations simply because one of them has an out-of-state registration obligation.

The court instructed the lower court to apply rational basis review to this distinction, and cautioned that it "should be undertaken with care" and "thorough[] develop[ment of] the factual record." It said that "[r]ational basis review favors the State but does not ensure an automatic win."