Thursday, March 26, 2020

First Circuit Strikes DOJ's Restrictions on Sanctuary Cities

The First Circuit this week became the latest appellate court to rule that the Administration lacked statutory authority to rein in and punish sanctuary cities. The court ruled that the Justice Department exceeded its statutory authority in imposing conditions on a DOJ law-enforcement grant program (the Byrne JAG program) for local jurisdictions.

The ruling was the latest victory for sanctuary jurisdictions. At the same time, it deepens a split: the First, Third, Seventh, and Ninth Circuits have all now struck DOJ's conditions; only the Second Circuit has upheld them. The ruling comes closely on the heels of the Trump Administration's announcement that it'll start withholding Byrne JAG funds from noncomplying jurisdictions based on the Second Circuit ruling.

We last posted, on the Second Circuit ruling, here.

The cases all involve three DOJ-imposed conditions on local jurisdictions' continued receipt of Byrne JAG funds: (1) a "notice" condition that requires grant recipients to provide notice to federal immigration authorities when they release particular (undocumented) individuals from custody; (2) an "access" condition that requires local authorities to grant access to prisons, jails, and the like to federal immigration enforcement officers; and (3) a "certification" condition that requires local authorities to certifiy compliance with 8 U.S.C. Sec. 1373, which prohibits state and local governments from restricting their officers from communicating with federal immigration enforcement officers. Under DOJ's order, if cities don't comply with the new conditions, they'll lose funding. 

In each of the cases, sanctuary jurisdictions sued, arguing that DOJ lacked statutory authority to impose the conditions, that the conditions violated the Administrative Procedure Act, and that the conditions violated the Constitution (separation of powers, because Congress, not the Administration, gets to impose conditions; and federalism principles). 

The First Circuit ruled that DOJ lacked statutory authority to impose the conditions, and therefore didnt' touch the APA or constitutional claims. In short, the court said that "DOJ's kitchen-sink-full of clever legal arguments" didn't cut it--that DOJ doesn't have statutory authority to unilaterally impose these conditions. The court took specific issue with the analysis by the Second Circuit, sharpening the points of dispute.

The ruling makes it even surer now (if that's possible) that this issue is headed to the Supreme Court--assuming, that is, that the Administration doesn't change in the 2020 election, or that this Administration doesn't change its position.

March 26, 2020 in Cases and Case Materials, Congressional Authority, Executive Authority, Federalism, News, Opinion Analysis, Separation of Powers | Permalink | Comments (0)

Monday, March 23, 2020

Court Kicks Copyright Case Against State, Says No Abrogation of State Sovereign Immunity

The Supreme Court ruled today in Allen v. Cooper that North Carolina enjoyed Eleventh Amendment sovereign immunity against a claim under the federal Copyright Remedy Clarification Act. The Court held that in enacting the CRCA Congress did not validly abrogate the state's sovereign immunity.

The ruling is a victory for North Carolina and other states who seek to avoid CRCA liability for copyright violations. More generally, it's a victory for states' sovereign immunity. At the same time, it continues a line of cases that restrict congressional authority to abrogate states' Eleventh Amendment immunity--and limit that power to federal acts under Section 5 of the Fourteenth Amendment that are proportional and congruent to a constitutional problem or evil in the states that Congress seeks to address.

The case arose when videographer Frederick Allen sued North Carolina for posting some of his copyright-protected videos and pictures online. North Carolina moved to dismiss, arguing that it enjoyed sovereign immunity under the Eleventh Amendment--and that it hadn't waived immunity, and that Congress didn't validly abrogate immunity. The Supreme Court agreed.

The Court held under College Savings Bank v. Florida Prepaid Postsecondary Ed. Expense Bd. that Congress couldn't abrogate Eleventh Amendment immunity using its Article I powers. So if Congress enacted the CRCA under the Intellectual Property Clause (in Article I), then Congress didn't validly abrogate. (The Court acknoweldged that it upheld congressional abrogation under the Bankruptcy Clause in Central Va. Community College v. Katz, but held that Katz was a good-for-one-abrogation ticket based on the unique characteristics and history of the Bankruptcy Clause.)

The Court went on to say that Congress didn't validly abrogate under Section 5 of the Fourteenth Amendment. The Court held that the CRCA wasn't proportional and congruent to any constitutional evil that Congress sought to address. That's because for a state to violate the Fourteenth Amendment by infringing a copyright, it'd have to do it intentionally, and provide no state remedy for the violation. (Due Process would be the relevant clause under Section 1 of the Fourteenth Amendment.) The Court said that Congress found no evidence of such infringements by the states--that is, no constitutional evil--and so the CRCA couldn't be proportional and congruent to that (non-)problem.

Justice Thomas concurred. He wrote separately to argue that the Court set too high a bar for stare decisis, and that the Court went too far in suggesting that Congress might in the future abrogate state sovereign immunity under the Fourteenth Amendment by actually addressing a constitutional evil.

Justice Breyer concurred, too, joined by Justice Ginsburg. He argued (consistent with his longstanding position) that "someting is amiss" with "our sovereign-immunity precedents." He said that the Court "went astray" in Seminole Tribe of Florida v. Florida, holding that Congress lacked authority under Article I to abrogate Eleventh Amendment immunity, and again in Florida Prepaid.

March 23, 2020 in Cases and Case Materials, Congressional Authority, Eleventh Amendment, Federalism, News, Opinion Analysis | Permalink | Comments (0)

Friday, March 13, 2020

D.C. Circuit Vacates McGahn Ruling, Sets for Rehearing En Banc

The full D.C. Circuit voted to reconsider the question whether a House committee has standing to sue a former executive branch officer. The court ordered rehearing in Committee on the Judiciary v. McGahn (and House of Representatives v. Mnuchin, which raises the same standing question) and vacated the panel's earlier ruling that the Committee lacked standing.

Recall that the panel held that the Judiciary Committee lacked standing to sue McGahn, a former executive branch official. In short, the court said that federal courts can't hear pure disputes between the coordinate branches; instead, there must be a plaintiff who was personally harmed in order to get the claim into federal court.

Today's order undoes that ruling and sets the case for rehearing before the entire D.C. Circuit.

This doesn't bode well for McGahn (and Mnuchin, and the Trump Administration). But whatever the en banc court ultimately says, this case is surely headed to the Supreme Court.

March 13, 2020 in Cases and Case Materials, Congressional Authority, Courts and Judging, Executive Authority, News, Opinion Analysis, Separation of Powers | Permalink | Comments (0)

Thursday, March 12, 2020

D.C. Circuit Authorizes Release of Full Mueller Report to House

The D.C. Circuit this week upheld a district court ruling that auhorized release of the full, unredacted Mueller Report to the House Judiciary Committee. The ruling, if upheld on inevitable appeal, means that the Committee'll get its hands on the full report, plus other, supporting grand jury materials from the Mueller investigation.

The ruling deals a sharp blow to the Trump Administration and DOJ. It means that the Committee can decide for itself, based on the full Mueller Report and additional grand jury materials, whether Administration witnesses lied to Congress or to the Mueller team, and the extent to which AG Barr misrepresented the full Report. It also means that the Committee can see for itself the full extent of any collaboration between the Trump campaign and Russia, and campaign and Administration efforts to conceal any collaboration or otherwise to obstruct congressional investigations.

But don't think that this means that we'll see the full Report anytime soon. First, there's the matter of the inevitable application for a stay, and appeal. Second, the court's holding hinges, in part, on the Committee's plan to protect the material from public release and to use only those portions that it needs.

The case arose when, July 26, 2019, the Committee filed an application for release of certain grand jury materials from the Mueller investigation with the federal district court. The Committee sought release of three categories of grand jury materials: (1) all portions of the Mueller Report that were redacted pursuant to the general grand-jury secrecy rule in Rule 6(e) of the Federal Rules of Criminal Procedure, (2) any portions of grand jury materials (transcripts, exhibits) that were referenced in those redactions, and (3) any other underlying grand jury material that related directly to certain individuals and events described in the Mueller Report.

The Committee sought release pursuant to the "judicial proceeding" exception, in Rule 6(e)(3)(E)(i), to the general rule of grand jury secrecy. The exception allows for release of grand jury materials in a "judicial proceeding," where the requesting party can demonstrate a particularized need for the material. After in camera review of a portion (but not all) of the requested materials, the district court held that the Senate's impeachment trial of President Trump met the "judicial proceeding" requirement, and that the Committee demonstrated a particularized need for the material. The court authorized release of the first two categories of grand jury material requested by the Committee.

(You might wonder how the Committee request for release relates to impeachment. Here's how: The Committee Report on Impeachment said that the conduct in the Articles of Impeachment was consistent with President Trump's behavior with regard to Russia and the Mueller investigation. Moreover, the Committee's impeachment investigation related to the Mueller report is ongoing, and may lead to addition articles of impeachment.)

The D.C. Circuit affirmed. The court held that the Senate's impeachment trial is, indeed, a "judicial proceeding" under Rule 6(e) (and that the Committee's investigation is part of, preliminary to, a Senate trial). It held that constitutional text and history, circuit precedent, and past practice all uniformly supported this conclusion. (On this point, "[i]t is only the President's categorical resistance and the Department's objection that are unprecedented.")

The court went on to say that the Committee demonstrated a particuularized need, because, among other things, the Committee may yet issue more articles of impeachment related to the President's behavior with regard to Russia and the Mueller investigation. 

Judge Rao dissented. She argued that the lower court actually made two moves--one to "authorize" release of the material, and the other to "order" DOJ to release it. She agreed that the court could authorize release, but she argued that it couldn't order DOJ to release the material, because the Committee lacked standing to bring a claim against the Executive Branch under the court's recent ruling in the McGahn case.

Both the court and Judge Griffith, in concurrence, wrote that the district court did no such thing. They both reminded that grand jury materials are judicial records, and that DOJ only holds them. As a result, this wasn't a dispute between the Committee and the Executive Branch. Instead, it was merely an application by the Committee to the courts, which the Executive Branch decided to oppose.

March 12, 2020 in Cases and Case Materials, Congressional Authority, Courts and Judging, Executive Authority, News, Opinion Analysis, Separation of Powers | Permalink | Comments (0)

Friday, March 6, 2020

More Cases Challenge Trump's Reprogramming of Funds for Border Wall

Plaintiffs filed two new cases this week challenging President Trump's moves to shift around congressionally appropriated federal money for FY 2020 to fund the border wall. A group of states filed one suit; the Sierra Club and the ACLU filed the other. Both are in the Northern District of California.

Both suits challenge the administration's shift of funds from military accounts and President Trump's declaration of a national emergency in order to reprogram federal funds for the wall. The complaints point out that Congress specifically declined to provide funding for the wall in the 2020 Consolidated Appropriations Act, and that the administration's moves "circumvent Congress's exclusive control over appropriations." 

The suits come soon on the heels of yet another ruling enjoining the administration from reprogramming military funds. This one, from the Western District of Washington, says that the administration violated the Administrative Procedure Act in reprogramming funds, because reprogramming violated the CAA and because the administration didn't have other statutory authority to do it. The court entered a permanent injunction, halting the government from reprogramming, but only insofar as it took money away from a military project in the plaintiff-state.

The Washington court said this about last summer's Supreme Court ruling that stayed a different court's permanent injunction:

the Court believes that an injunction narrowly tailored to the State-specific injuries alleged in this case need not be stayed pending appeal. As noted above, two sister courts have already enjoined the Defendants' actions as to the entire $3.6 billion in redirected funds. Those injunctions have been stayed by various courts pending appeal [including the Supreme Court, in last summer's ruling]. The Court concludes that an injunction relating to only the $88.96 million appropriated to the Bangor Project is not necessarily controlled by or subject to the stays entered by the Supreme Court, the Fifth Circuit, or the Northern District of California. That is because those cases involve different plaintiffs and materially different alleged injuries. The Supreme Court reversed the Ninth Circuit and granted Defendants' application for a stay, noting that "[a]mong the reasons is that the Government has made a sufficient showing at this stage that the plaintiffs have no cause of action to obtain review of the Acting Secretary's compliance with Section 8005. . . . These rationales do not apply to the instant case, which involves distinct causes of action, a different plaintiff, different alleged injuries, and a different basis for standing. 

The two new complaints are similarly tailored to take account of the Supreme Court's ruling last summer.

March 6, 2020 in Cases and Case Materials, Congressional Authority, Executive Authority, News, Separation of Powers | Permalink | Comments (0)

Thursday, March 5, 2020

Second Circuit Upholds Fed's Anti-Sanctuary Cities Conditions

The Second Circuit last week upheld the Justice Department's efforts to clamp down on sanctuary cities against by-now-familiar constitutional and statutory challenges. The ruling conflicts with cases from the Third, Seventh, and Ninth Circuits, and, as if there were ever any doubt, puts the issue on track for Supreme Court review.

The case, like the others, arose when AG Sessions unilaterally imposed three conditions on local governments receiving law-enforcement grants under DOJ's Byrne program. Sessions required grant recipients (1) to comply with federal law prohibiting state and local restrictions on their officers from communicating with federal authorities about a person's immigration status (in 8 U.S.C. Sec. 1373), (2) to provide federal authorities with release dates of unauthorized aliens, and (3) to give federal immigration officers access to incarcerated unauthorized aliens.

The conditions were designed to clamp down on sanctuary jurisdictions.

State and local governments sued, arguing that the conditions violated the separation of powers (because only Congress, not the Executive Branch, has authority to place conditions on federal funds), the Tenth Amendment (because 8 U.S.C. Sec. 1373 tells state and local governemnts what they can't do (restrict communication between their officers and the feds) in violation of the anti-commandeering principle, and the Administrative Procedure Act (becuase the conditions, even if authorized by statute, are arbitrary and capricious). 

The Second Circuit is the first circuit court to side with the government. 

The court ruled that the Byrne program, in 34 U.S.C. Sec. 10153, gave the AG broad authority to implement the program, including broad enough authority to impose the three conditions. As a result, the court held that the conditions didn't violate the APA's prohibition on unlawful agency action or the separation of powers.

As to the first condition--the one that requires Byrne grant recipients to certify comliance with Section 1373--the court rejected the plaintiffs' Tenth Amendment challenge. The court held that the amount of money at issue wasn't enough to "turn pressure into compulsion" for the plaintiffs to comply with Section 1373, and therefore certification of compliance with Section 1373 was a constitutionally permissible condition on the receipt of federal funds.

March 5, 2020 in Cases and Case Materials, Congressional Authority, Executive Authority, News, Opinion Analysis, Separation of Powers | Permalink | Comments (0)

Sunday, March 1, 2020

District Court Rules Cuccinelli Appointment Violates Law and Strikes his Restrictive Asylum Orders

Judge Randolph D. Moss (D.D.C.) ruled today that Ken Cuccinelli's appointment as Acting Director of U.S. Citizenship and Immigration Services violated the Federal Vacancies Reform Act of 1998 and struck two of his orders restricting certain asylum processes.

The ruling is a significant blow to the administration, USCIS, and Cuccinelli. It also puts the brakes on the then-Acting Secretary of Homeland Security's effort to side-step the FVRA and get Cuccinelli into office under the radar. (If affirmed, the ruling also forecloses any similar efforts to work around the FVRA in Homeland Security or other agencies.)

Moreover, the ruling could also affect other asylum claimants and other Cuccinelli decisions, if other cases follow. (Judge Moss was careful to limit relief to only the plaintiffs in this case, which was not a class action. But the reasoning extends to other asylum applicants and other Cuccinelli decisions in his role as acting Director.)

The case arose when certain asylum claimants challenged Cuccinelli's orders to limit the time allotted for asylum seekers to consult with others prior to their credible-fear interviews from 72 or 48 hours to "one full calendar day from the date of arrival at a detention facility," and prohibited asylum officers from granting extensions to prepare for credible-fear interviews "except in the most extraordinary of circumstances." They argued, among other things, that Cuccinelli lacked authority to issue the orders, because his appointment as Acting Director was invalid under the FVRA.

The court agreed. The court noted that after the Senate-confirmed Director of the USCIS resigned, and after the Deputy Director (the Director's "first assistant") took over pursuant to the FVRA, the Secretary of Homeland Security simultaneously appointed Cuccinelli as a newly created Principal Deputy Director and revised the USCIS order of succession to designate the new Principal Deputy Director as the new "first assistant" to the Director.

The moves were designed to put Cuccinelli in the Acting Director's spot over the Deputy Director. (The FVRA specifies that when there's a vacancy in a Senate-confirmed job, the "first assistant" assumes the acting role, unless the President appoints a person under other provisions in the FVRA, not relevant here.)

But in addition to the bald effort to work around the FVRA, there was this weirdness, underscoring the fact that the Acting Secretary was trying to side-step the FVRA: the Acting Secretary specified that the order designating the Principal Deputy Director as "first assistant" "will terminate automatically, without further action, upon the appointment of a new Director of USCIS by the President."

The court held that the attempted work-around of the FVRA didn't work. In short, Cuccinelli "never did and never will serve in a subordinate role--that is, as an "assistant"--to any other USCIS official," because his appointment as Principal Deputy automatically elevated him to the Acting Director job. "For this reason alone, Defendants' contention that his appointment satisfies the FVRA cannot be squared with the text, structure, or purpose of the FVRA."

The court thus ruled that Cuccinelli's two orders were issued without authorization and set them aside. It went on to limit relief to the plaintiffs in the case, however, and noted that the case wasn't a class action. As a result, the court vacated the plaintiffs' negative credible-fear determinations and remanded their cases to USCIS for further proceedings under the pre-order rules.

March 1, 2020 in Cases and Case Materials, Executive Privilege, News, Opinion Analysis, Separation of Powers | Permalink | Comments (0)

Friday, February 28, 2020

D.C. Circuit Tosses House Judiciary Committee Suit to Compel McGahn Testimony

The D.C. Circuit dismissed the House Judiciary Committee's lawsuit seeking to compel the testimony of former White House Counsel Don McGahn. The court held that the Committee failed to assert a judicially cognizable injury, and that the case was therefore not justiciable under Article III.

The ruling deals a sharp blow to Congress's authority to compel testimony of, and to obtain information from, Executive Branch officials. It means that congressional lawsuits against Executive Branch officials to compel testimony are nonjusticiable, and that Congress will have to use its own powers (appropriations, appointments, contempt, impeachment) to obtain that testimony and information. As we've seen, however, those tools often don't do the job.

In short, the ruling invites presidential noncooperation with congressional oversight and investigations and, as a practical matter, with a noncooperative president, could all but mark the end of effective congressional oversight of the administration. Having said that, this'll surely be appealed.

We posted on the district court ruling here.

The court, in an opinion penned by Judge Griffith, ruled that the Committee lacked a judicially cognizable injury, and therefore lacked standing under Article III. It said that the courts have no business refereeing a pure dispute between Congress and the Executive Branch. It distinguished cases where the courts have ruled in inter-branch disputes, saying that those cases always involved a direct, cognizable harm to an individual, not a branch of government.

In this case, the Committee's dispute with the Executive Branch is unfit for judicial resolution because it has no bearing on the "rights of individuals" or some entity beyond the federal government. The Committee is not a private entity seeking vindication of its "constitutional rights and liberties . . . against oppressive or discriminatory government action." Nor does the Committee seek the "production or nonproduction of specified evidence . . . in a pending criminal case"--the "kind of controversy" threatening individual liberty that "courts traditionally resolve."

Instead, the Committee claims that the Executive Branch's assertion of a constitutional privilege is "obstructing the Committee's investigation." That obstruction may seriously and even unlawfully hinder the Committee's efforts to probe presidential wrongdoing, but it is not a "judicially cognizable" injury.

Judge Henderson concurred, but added that McGahn's arguments on both justiciability and the merits went too far:

First, McGahn urges us to foreclose Article III standing when the Congress, or a House thereof, asserts any institutional injury in any interbranch dispute; I do not believe, however, Supreme Court precedent supports a holding of that scope. Second, McGahn's assertion of absolute testimonial immunity against compelled congressional process is, in my opinion, a step too far, again, under Supreme Court precedent.

Judge Rogers dissented:

The House comes to the court in light of the President's blanket and unprecedented order that no member of the Executive Branch shall comply with the subpoena duly issued by an authorized House Committee. Exercising jurisdiction over the Committee's case is not an instant of judicial encroachment on the prerogatives of another Branch, because subpoena enforcement is a traditional and commonplace function of the federal courts. The court removes any incentive for the Executive Branch to engage in the negotiation process seeking accommodation, all but assures future Presidential stonewalling of Congress, and further impairs the House's ability to perform its constitutional duties.

February 28, 2020 in Cases and Case Materials, Congressional Authority, Courts and Judging, Executive Authority, Executive Privilege, News, Opinion Analysis, Separation of Powers | Permalink | Comments (1)

Thursday, February 27, 2020

High Court Rebuffs Cross-Border Killing Case

The Supreme Court this week dismissed a case by parents of a Mexican youth against a U.S. Border Patrol agent for shooting and killing their son. The ruling declined to extend a Bivens remedy (a constitutional claim against a federal officer) to the cross-border killing and dismissed the case. The ruling ends the case and (if there were any doubt) underscores just how little is left of Bivens.

The case, Hernandez v. Mesa, arose after a U.S. Border Patrol agent shot and killed Sergio Adrian Hernandez Guereca, a 15-year old Mexican national, while he was playing with friends in the concrete culvert that runs between the U.S.-Mexico border. The child's parents sued Agent Jesus Mesa, Jr., under Bivens for violating the Fourth and Fifth Amendments.

A 5-4 Court, divided along conventional ideological lines, ruled that Bivens didn't extend to the case. The Court, in an opinion by Justice Alito, ruled that the case raised a new Bivens context, and that the special factors of foreign affairs, national security, and Congress's failure to provide a remedy for this or similar claims all counseled against extending a Bivens remedy to this new context.

The ruling wasn't surprising, given the Court's most recent foray into Bivens, in Ziglar v. Abbasi. In that case, the Court limited Bivens to all but the precise three contexts where the Court has recognized a Bivens remedy (Bivens itself, a congressional staffer's Fifth Amendment claim of dismissal based on sex, and a federal prisoner's Eighth Amendment claim for failure to provide adequate medical treatment). Just to underscore how little remains of Bivens, the Court there noted that if these claims came up today, the Court would likely rule differently.

Justice Thomas concurred, joined by Justice Gorsuch, arguing that the Court should do away with Bivens entirely.

Justice Ginsburg dissented, joined by Justices Breyer, Sotomayor, and Kagan. She argued that the case did not arise in a new Bivens context, and even if it did, special factors don't counsel against a Bivens remedy. After all, she argued, the case is about whether a federal officer violated the Constitution when he shot and killed the child while on U.S. soil, under U.S. law--and does not intrude on the other branches' conduct of foreign affairs or national security.

February 27, 2020 in Cases and Case Materials, Courts and Judging, News, Opinion Analysis, Separation of Powers | Permalink | Comments (0)

Tuesday, February 18, 2020

D.C. Circuit Rebuffs HHS's Approval of Arkansas Work Requirements for Medicaid

The D.C. Circuit last week ruled that HHS Secretary Azar's approval of Arkansas's proposed work required for Medicaid recipients was arbitrary and capricious in violation of the Administrative Procedure Act. The ruling vacates the Secretary's approval and means that the work requirements can't move forward, at least unless and until the Secretary provides an explanation for authorization that's consistent with the Medicaid Act.

We last posted on this case (and a similar case out of Kentucky) here. (After the district court ruled against Kentucky's approval, that state dropped its program and moved for voluntary dismissal.)

The case arose when Arkansas sought HHS approval for a work-requirement demonstration project for its Medicaid program. The project would mean that Medicaid recipients in the state would have to work, with some exceptions, in order to continue to receive Medicaid.

HHS Secretary Azar approved the project. State residents sued, arguing that the approval was arbitrary and capricious in violation of the APA. The district court agreed, and last week the D.C. Circuit affirmed.

Like the district court, the circuit court said that Secretary Azar's explanation for approving the project didn't square with the purpose of Medicaid, to provide medical assistance. Here's the long and short of it:

Instead of analyzing whether the demonstration would promote the objective of providing coverage, the Secretary identified three alternative objectives: "whether the demonstration as amended was likely to assist in improving health outcomes; whether it would address behavioral and social factor that influence health outcomes; and whether it would incentivize beneficiaries to engage in their own health care and achieve better health outcomes." These three alternative objectives all point to better health outcomes as the objective of Medicaid, but that alternative objective lacks textual support. Indeed, the statute makes no mention of that objective.

While furnishing health care coverage and better health outcomes may be connected goals, the text specifically addresses only coverage. . . . That means that Congress selected to achieve the objectives of Medicaid was to provide health care coverage to populations that otherwise could not afford it. 

February 18, 2020 in Cases and Case Materials, Executive Authority, News, Opinion Analysis, Separation of Powers | Permalink | Comments (0)

Tuesday, February 11, 2020

Feds Seek to Crack Down on Immigration, Sanctuary Policies in Three Lawsuits

The Department of Justice yesterday filed three separate lawsuits seeking to halt various immigration-related and sanctuary policies in California, New Jersey, and King County, Washington.

The three suits are directed as different policies, as so plead slightly different violations, but they all plead some form of federal supremacy and preemption in immigration policy.

In the California case, DOJ takes on California's ban on the operation of private detention facilities in the state. In short, DOJ says that "California, of course, is free to decide that it will no longer use private detention facilities for its state prisoners and detainees. But it cannot dictate that choice for the Federal Government, especially in a manner that discriminates against the Federal Government and those with whom it contracts." Here's the complaint; here's the motion for a preliminary and permanent injunction.

In the King County case, DOJ seeks to halt a local order that closes the airport for the "deportation of immigration detainees (except for federal government aircraft), to the maximum extent permitted by applicable law." Here's the complaint.

Finally, in the New Jersey case, DOJ takes on a law enforcement directive that limits state and local cooperation with "federal immigration authorities." Here's the complaint.

 

February 11, 2020 in Cases and Case Materials, Federalism, News, Preemption | Permalink | Comments (0)

New York Sues Feds for Dropping Trusted Traveler

New York yesterday sued Homeland Security officials for dropping the state from the Customs and Border Patrol's Trusted Traveler program in retribution for the state adopting its Green Light Law. That Law allows unauthorized aliens to get a drivers license in the state, and, in order to facilitate that, prohibits state officials from sharing an applicant's personal information from the DMV database with federal immigration authorities, except where disclosure is pursuant to a lawful court order or judicial warrant.

New York argues in that CBP's move violates the "equal state sovereignty" principle in the Tenth Amendment; that it's unduly coercive in violation of the Tenth Amendment; that it is wholly irrational in violation of due process; and that it violates the Administrative Procedure Act (for lack of notice-and-comment rulemaking, for being arbitrary and capricious, and for violating federal law).

On that last point--violating federal law--New York contends that the move violates the Intelligence Reform and Terrorism Prevention Act of 2004 and implementing regulations. That's because the IRTPA directs the Secretary to "ensure that the international trusted traveler program includes as many participants as practicable," yet CBP's move takes millions of New Yorkers out of the program. Moreover, nothing in the program requires applicants to submit state drivers license information, and CBP can get any information they need to run background checks from other state sources, which New York readily shares with the FBI. In other words: CBP doesn't need information from New York's DMV database.

The complaint asks the court to declare CBP's move unconstitutional and in violation of the APA, and to enjoin enforcement of it.

February 11, 2020 in Cases and Case Materials, Executive Authority, Federalism, News, Tenth Amendment | Permalink | Comments (0)

Friday, February 7, 2020

D.C. Circuit Tosses Congressional Members' Foreign Emoluments Suit Against Trump

The D.C. Circuit ruled today that 215 Members of Congress who brought a suit against President Trump for violations of the Foreign Emoluments Clause lacked standing to sue. As a result, the court ordered the case dismissed.

The ruling is a significant victory for President Trump. But it wasn't a ruling on the merits, and other Emoluments Clause cases are still pending against the President in two other circuits.

We last posted on the case here. In short, Members argued that President Trump failed to gain congressional approval and thus violated the Foreign Emoluments Clause for taking money from foreign governments for stays and services at his properties. President Trump moved to dismiss for lack of standing, among other reasons. The district court denied the motion; the D.C. Circuit today reversed.

The ruling was concise. The court simply held that the case was governed by Raines v. Byrd, in which the Supreme Court held that Members of Congress lacked standing to challenge the Line Item Veto Act. Here's how the D.C. Circuit applied Raines:

This case is really no different from Raines. The Members were not singled out--their alleged injury is shared by the 320 members of the Congress who did not join this lawsuit--and their claim is based entirely on the loss of political power. . . .

The Supreme Court's recent summary reading of Raines that "individual members" of the Congress "lack standing to assert the institutional interests of a legislature" in the same way "a single House of a bicameral legislature lacks capacity to assert interests belonging to the legislature as a whole," Virginia House of Delegates v. Bethune-Hill, puts paid to any doubt regarding the Members' lack of standing.

The plaintiffs can appeal to the full D.C. Circuit and to the Supreme Court.

February 7, 2020 in Cases and Case Materials, Courts and Judging, News, Opinion Analysis, Separation of Powers, Standing | Permalink | Comments (0)

Tuesday, January 21, 2020

High Court Declines to Take Up Expedited Review of Fifth Circuit's Obamacare Ruling

The Supreme Court issued a one-sentence order today denying a motion by Obamacare defenders to expedite review of the Fifth Circuit's ruling last month holding the individual mandate unconstitutional.

Recall that the Fifth Circuit ruled the individual mandate unconstitutional (because Congress zeroed out the penalty), but remanded the case to determine whether the mandate is severable from the rest of the Act--and therefore whether any other portions of the Act can stand. The district court previously ruled that the mandate was not severable, and that the entire Act must fall.

The Court's order means that the Court won't rule on the case until after the 2020 presidential election, if at all.

January 21, 2020 in Cases and Case Materials, Congressional Authority, News, Opinion Analysis | Permalink | Comments (0)

Wednesday, January 15, 2020

District Court Halts Trump Order Allowing Cities, States to Veto Refugee Resettlement

Judge Peter J. Messitte (D. Md.) entered a preliminary injunction against enforcement of President Trump's executive order that effectively authorized state and local governments to veto federal resettlement of refugees. The ruling, while preliminary, deals a sharp blow to President Trump's effort to empower state and local governments to restrict refugee resettlement. At the same time, it's a significant victory for refugees and the refugee-rights community.

President Trump's EO provides that the federal government "should resettle refugees only in those jurisdictions in which both the State and local governments have consented to receive refugees under the Department of State's Reception and Placement Program." The EO effectively allowed state and local governments to veto resettlement.

The court ruled that this likely violated 8 U.S.C. Sec. 1522, which sets out the "conditions and considerations" for refugee resettlement and assistance programs:

[The statute] speaks in terms of "consulting" and "consultation" between and among the Resettlement Agencies and the State and Local Governments; establishes that the Resettlement Agencies and State and Local Governments must regularly "meet" to "plan and coordinate"; even acknowledges that "maximum consideration" be given to "recommendations" States make to the Federal Government. The challenged Order definitely appears to undermine this arrangement. As to States or Local Governments that refuse to give written consents, there will be no consultation, no meetings with the Resettlement Agencies, not just "recommendations." Those State and Local Governments can simply give or withhold their written consents to the resettlement of refugees within their borders.

The court also held that the EO "appears to run counter to the Refugee Act's stated purpose" and the congressional intent. (A report on the bill from the House Judiciary Committee couldn't have been clearer: "The Committee emphasizes that these requirements [of the act] are not intended to give States and localities any veto power over refugee placement decisions, but rather to ensure their input into the process and to improve their resettlement planning capacity.")

The court also held that individual government officials' enforcement of the EO was likely arbitrary and capricious, and thus invalid, under the Administrative Procedure Act.

The ruling preliminarily prohibits enforcement of the EO. But it also telegraphs the court's conclusion on the merits: the EO is unlawful.

January 15, 2020 in Cases and Case Materials, Congressional Authority, Courts and Judging, Executive Authority, Federalism, News, Opinion Analysis, Separation of Powers | Permalink | Comments (0)

Wednesday, January 8, 2020

Eleventh Circuit Rebuffs Eleventh Amendment Immunity Defense in ADA Claim

The Eleventh Circuit ruled in National Association of the Deaf v. Florida that Congress validly abrogated state sovereign immunity in enacting the Americans with Disabilities Act, insofar as it requires the state to provide captioning for live and archived videos of Florida legislative proceedings. The ruling means that the plaintiffs' case can move forward on the merits.

The case arose when plaintiffs challenged the Florida legislature's practice of live-streaming and archiving videos of legislative sessions without captioning. The plaintiffs argued that this violated Title II of the ADA and the Rehab Act (more on that below). The state moved to dismiss, arguing that it was immune under the Eleventh Amendment and that Congress did not validly abrogate immunity in enacting the ADA.

The Eleventh Circuit disagreed. The court ruled that Congress, in enacting the ADA, sought to protect the fundamental right to participate in the democratic process, and that the state denied that very right to the plaintiffs:

Here, deaf citizens are being denied the opportunity to monitor the legislative actions of their representatives because Defendants have refused to provide captioning for legislative proceedings. Without access to information about the legislative actions of their representatives, deaf citizens cannot adequately "petition the Government for a redress of greivances," because they cannot get the information necessary to hold their elected officials accountable for legislative acts. This type of participation in the political process goes to the very core of the political system embodied in our Constitution.

The court went on to say that Congress also validly abrogated immunity even if only a non-fundamental right were at stake. 

The court said that Congress enacted Title II against a backdrop of a "pattern of unequal treatment in the administration of a wide range of public services, programs, and activities," and that Title II was an "appropriate response" to this pattern:

The burden of adding captioning to legislative videos--which are already provided to the public--removes a complete barrier to this information for a subset of citizens with a remedy we expect can be accomplished with limited cost and effort. In this way, the remedy is a proportionate and "reasonable modification" of a service that is already provided, and it does not change the "nature" of the service whatsoever. Finally, if the cost or effort should prove to be prohibitively burdensome, the Defendants have available the affirmative defenses in Title II.

The court also held that the plaintiffs could pursue injunctive relief under Ex Parte Young for the ongoing violation of Title II. Finally, it remanded for further proceedings on whether state legislative defendants received federal financial funds, and were therefore on the hook for Rehab Act violations (as a federal conditioned spending program--federal funds in exchange for a state's agreement not to discriminate by disability). 

January 8, 2020 in Cases and Case Materials, Congressional Authority, Eleventh Amendment, Federalism, News, Opinion Analysis | Permalink | Comments (0)

Wednesday, January 1, 2020

District Court Tosses Kupperman's Suit Over Congressional Subpoena, Absolute Privilege

Judge Richard Leon (D.D.C.) this week tossed former Deputy National Security Advisor and Acting National Security Advisor Charles Kupperman's lawsuit asking the court to determine which prevailed: a congressional subpoena, or the White House's instruction not to testify under an absolute privilege theory.

The ruling ends the case. It also means that we don't get another district court say-so on the White House theory of absolute privilege for senior presidential advisors. That means that we now have (1) a district court ruling from late November rejecting absolute privilege with respect to former White House Counsel Don McGahn's compelled testimony and (2) a 2008 district court ruling rejecting absolute privilege with respect to White House Counsel Harriet Mier's compelled testimony. No circuit court has yet to weigh in. We also have a series of Office of Legal Counsel memos, starting with the 1971 memo through the most recent McGahn memo. The district courts have flatly rejected the reasoning in these memos.

We previously posted on the case here.

Just a wee little bit of background (more on our earlier posted, link above): Kupperman, a former White House official, received a subpoena to testify in the impeachment inquiry from the House Permanent Select Committee on Intelligence; but the White House instructed him not to testify, claiming an absolute privilege against compelled congressional testimony. Kupperman sued, asking the court to resolve his dilemma. But the House moved forward with impeachment without his testimony, and the Committee argued that his case was moot.

Judge Leon agreed. The court said that there's no longer a case or controversy over the matter, that the matter isn't "capable or repetition but evading review" (because the House has said unequivocally that it won't re-issue a subpoena, ever), and that there's no chance of enforcement against Kupperman.

January 1, 2020 in Cases and Case Materials, Congressional Authority, Executive Authority, Executive Privilege, News, Opinion Analysis, Separation of Powers | Permalink | Comments (0)

Sunday, December 29, 2019

Ninth Circuit Says Public Union Not Retrospectively Liable for Mandatory Dues

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

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

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

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

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

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

December 29, 2019 in Association, Cases and Case Materials, First Amendment, News, Opinion Analysis, Speech | Permalink | Comments (0)

Saturday, December 28, 2019

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

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

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

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

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

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

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

December 28, 2019 in Cases and Case Materials, Congressional Authority, Courts and Judging, Executive Authority, News, Nondelegation Doctrine, Opinion Analysis, Separation of Powers | Permalink | Comments (0)

Thursday, December 26, 2019

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

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

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

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

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

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

December 26, 2019 in Cases and Case Materials, Eleventh Amendment, Federalism, News, Opinion Analysis | Permalink | Comments (0)