Friday, September 13, 2019

Second Circuit Says Emoluments Suit Against Trump Can Move Forward

The Second Circuit ruled today in CREW v. Trump that a case alleging that the President violated the Foreign and Domestic Emoluments Clauses can move forward. The ruling rejects the President's arguments that the plaintiffs lack standing and that they fall outside the zones of interests of the Emoluments Clauses. It also rejects the district court's holdings that the case isn't ripe, and that it raises a nonjusticiable political question.

The ruling means that the case can go forward. It says nothing on the merits--whether President Trump actually violated the Emoluments Clauses. Still, it's a significant victory for the plaintiffs. It also splits with the Fourth Circuit, which dismissed an emoluments case in July for lack of standing.

The plaintiffs in the case, Eric Goode, a restauranteur and hotelier, and the Restaurant Opportunities Center United ("ROC"), a non-partisan, member-based organization of restaurants and restaurant workers, alleged that President Trump's properties siphon off business from the plaintiffs' operations when foreign and domestic government entities choose the President's properties over the plaintiffs' in order to enrich the President and gain his favor--all in violation of the Foreign and Domestic Emoluments Clauses. In particular, the plaintiffs allege (1) that they compete with the President's properties, (2) that the President implicitly solicits the patronage of government officials and acknowledged that, in making decisions, he favors governments that patronize his businesses, and (3) that governments have taken note of this, and been influenced by it, in deciding which properties to patronize.

The district court dismissed the case, holding that the plaintiffs lacked standing, that they fall outside the zone of interests of the Emoluments Clauses, that their claims aren't ripe, and that the case raises nonjusticiable political questions.

The Second Circuit reversed. As to standing, the court ruled that the plaintiffs sufficiently pleaded injury, causation, and redressability under competitor-standing theory: "[t]he complaint, supported by expert declarations, alleges that . . . unlawful market conduct skew has caused Plaintiffs economic harm in the form of lost patronage from government entities, and that such harm will continue in the future"; "[t]he complaint adequately pleads a competitive injury of lost patronage directly traceable to the fact that the President's allegedly illegal conduct induces government patrons of the hospitality industry . . . to patronize Trump establishments in favor to Plaintiffs' establishments"; and "[b]ecause Plaintiffs have successfully alleged a plausible likelihood that President Trump's conduct caused their injuries, and the injury is ongoing, it logically follows that [injunctive relief] would redress their injury--at least to some extent, which is all that Article III requires."

As to the zone of interests, the court first held that the Supreme Court recently ruled that zone of interests is not a test of Article III standing. But the court said that in any event, the plaintiffs fell within it: "Without exception, the Court has held that a plaintiff who sues to enforce a law that limits the activity of a competitor satisfies the zone of interests test even though the limiting law was not motivated by an intention to protect entities such as plaintiffs from competition."

As to the political question issue (which the President did not argue at the Second Circuit), the court said that the district court erred in holding that under the Emoluments Clauses "Congress is the appropriate body to determine whether, and to what extent, [the President's] conduct unlawfully infringes on that power." Instead, the court held that under the plain language of the Emoluments Clauses, if Congress doesn't consent to an emolument, it's a violation. And it's the role of the courts to judge just such violations.

As to ripeness (which the President also did not argue), the court said that the district court erred in relying on the prospect of future congressional action and on the reasoning of Justice Powell's concurrence in Goldwater v. Carter. The court held that this case is distinguishable: Goldwater involved an inter-branch dispute over inter-branch powers; but this case simply involves an allegation that the President's private conduct is illegal. "There is no claim on the part of the Congress, or any of its members, that the President's private conduct of his business affairs usurps power allocated to Congress by the Constitution."

Judge Walker dissented, arguing that the plaintiffs lacked standing, consistent with the Fourth Circuit's approach.

September 13, 2019 in Cases and Case Materials, Courts and Judging, Jurisdiction of Federal Courts, News, Opinion Analysis, Political Question Doctrine, Ripeness, Standing | Permalink | Comments (0)

Tuesday, September 10, 2019

Ninth Circuit Strikes Montana's Political Robocall Ban

The Ninth Circuit ruled today in Victory Processing v. Fox that Montana's ban on political robocalls violates the First Amendment. The ruling strikes the ban.

Montana's robocall statute reads as follows:

A person may not use an automated telephone system, device, or facsimile machine for the selection and dialing of telephone numbers and playing of recorded messages if a message is completed to the dialed number for the purpose of . . . promoting a political campaign or any use related to a political campaign.

A robocall company sued, arguing that the provision violated free speech. The Ninth Circuit agreed.

The court ruled that the provision is a content-based restriction on speech, and that it fails strict scrutiny. The court said that while the state had a compelling interest for enacting the provision--the protection of personal privacy--the ban wasn't narrowly tailored to achieve that end. In particular, the court said that the ban was underinclusive with respect to protecting personal privacy, because it singles out only political robocalls and four other topics for robocalling, but "leaves consumers open to an 'unlimited proliferation' of robocalls on other topics. The court also said the ban was also overinclusive, in that it regulates only "categories of robocalling that have not been shown to pose a threat . . . ."

The ruling aligns with Cahaly v. Larosa, 796 F.3d 399, a 2015 Fourth Circuit case also striking a ban on political robocalling.

September 10, 2019 in Cases and Case Materials, First Amendment, News, Opinion Analysis, Speech | Permalink | Comments (0)

Sunday, August 18, 2019

Ninth Circuit Retains Injunction Against Trump Asylum Poilcy, but only in Ninth Circuit

The Ninth Circuit on Friday declined to stay a district court injunction against the Administration's "Asylum Eligibility and Procedural Modifications" rule, but limited the injunction to the Ninth Circuit.

The ruling allows the district court to develop a more complete record that would support a nationwide injunction. But at the same time, the motions panel also set a briefing schedule and put the case on the December 2019 argument calendar.

In all, this means (1) that the administration cannot enforce its new asylum rule in the Ninth Circuit (but it can enforce it elsewhere, at least for now), (2) that the district court can nevertheless develop a record that would support a nationwide preliminary injunction, and issue such an injunction, even as the appeal is pending at the Ninth Circuit, and (3) the case will go to the Ninth Circuit on the merits later this year.

The court started by noting that the Administration has "not made the required 'strong showing' that they are likely to succeed" on its claim that the district court erroneously concluded that the asylum policy likely violated the Administrative Procedure Act. It went on to say, though, that the record before the district court didn't justify a nationwide injunction:

Here, the district court failed to discuss whether a nationwide injunction is necessary to remedy Plaintiffs' alleged harm. Instead, in conclusory fashion, the district courts stated that nationwide relief is warranted simply because district courts have the authority to impose such relief in some cases and because such relief has been applied in the immigration context. The district court clearly erred by failing to consider whether nationwide relief is necessary to remedy Plaintiffs' alleged harms. And, based on the limited record before us, we do not believe a nationwide injunction is justified.

Judge Tashima dissented, arguing that the majority impermissibly parsed the district court record to reconsider the nationwide injunction, and that the briefing and argument order is in tension with the district court potentially developing a record that permits a nationwide injunction.

The order comes as the practice of issuing nationwide injunctions, in general, is under increased scrutiny. The Ninth Circuit's approach here is cautious with regard to a nationwide injunction, but at the same time it leaves open plenty of room for the district court to develop a more complete record that would support such an injunction. And the panel held no punches when it said that the Administration hasn't made the "strong showing" required to stay the district court's injunction.

August 18, 2019 in Cases and Case Materials, Courts and Judging, Jurisdiction of Federal Courts, News, Opinion Analysis, Separation of Powers | Permalink | Comments (0)

Tuesday, August 13, 2019

Ninth Circuit Rejects Challenge to Electioneering Disclosure Requirement

The Ninth Circuit ruled yesterday in National Association for Gun Rights, Inc. v. Mangan that Montana's electioneering disclosure requirements did not violate the First Amendment. The ruling keeps the requirements in place.

The Supreme Court has upheld disclosure requirements against First Amendment challenges, and so this ruling is really unremarkable. But at the same time it represents one in the next set of First Amendment challenges to campaign finance laws designed to spur this new Court to strike even more ways that government tries to regulate money in politics.

The case arose when the National Association for Gun Rights sought to spend more than $250 on an "electioneering communication." Montana law requires that any such organization register as a political committee. And such registration, in turn, subjects the group to requirements to disclosure expenditures.

The Association argued that the state's definition of electioneering communication was facially overbroad and unconstitutional as applied to it. In particular, the Association said that the First Amendment permits states to require disclosure only of express advocacy for or against a specific candidate, not the kind of general information that it sought to distribute.

The Ninth Circuit rejected the challenge. The court said that disclosure requirements are valid, even as to non-express-advocacy communications, because, under "exacting scrutiny," they are designed to promote the state's interests in transparency and discouraging circumvention of its electioneering laws.

August 13, 2019 in Campaign Finance, Cases and Case Materials, First Amendment, News, Opinion Analysis, Speech | Permalink | Comments (0)

D.C. Circuit Says Diversity Visa Case Not Moot (even after Trump v. Hawaii)

The D.C. Circuit ruled today in Almaqrami v. Pompeo that plaintiffs' claim against the government for denying them "diversity visas" was not moot, even though the plaintiffs are from countries covered by President Trump's travel ban, upheld under Trump v. Hawaii. The ruling sends the case back to the district court for a decision on the merits. By the plaintiffs' own reckoning, however, even a win (alone) wouldn't guarantee their admittance to the United States.

The plaintiffs, nationals of Iran and Yemen, won the 2017 diversity visa lottery. But they were denied visas pursuant to a State Department Guidance Memo, instructing consular officers about how to evaluate diversity visa applications in light of Trump v. Int'l Refugee Assistance Project (the Court's earlier ruling allowing President Trump's executive order (2) to take effect while the Court considered appeals of the preliminary injunctions against the travel ban). They sued, arguing that the relevant section of the Immigration and Nationality Act authorized the President to restrict only entry, not visas, and that their denial violated the INA provision that bans discrimination by nationality.

Just before the end of Fiscal Year 2017, the district court ordered State to "hold those [unused diversity] visa numbers to process [p]laintiffs' visa applications in the event the Supreme Court finds [EO-2] to be unlawful." (Recall that the President replaced EO-2 with the (third) version of the travel ban that ultimately went to the Court.)

After the Court upheld the travel ban in Trump v. Hawaii, the government moved to dismiss the case as moot, arguing that EO-2 and the guidance memo under which the consular officers denied the plaintiffs visas were now expired, and that the district court's order was conditioned on the Court ruling that EO-2 was unlawful (which didn't happen).

The district court accepted this argument and dismissed the case as moot, but the D.C. Circuit reversed.

The D.C. Circuit ruled that because the district court issued its order before the end of Fiscal Year 2017, it could still grant relief to the plaintiffs (by ordering State to grant the visas). As to that language that seems to condition relief on the Court striking the travel ban (which of course it didn't), the D.C. Circuit said that the district court's order could be read to mean (1) that State must hold unused diversity visas to enable a later court judgment and (2) that a specific judgment would issue if the Court ruled a certain way. (1) allows the district court to order State to issue the visas; (2) would've required it.

Moreover, the court said that the plaintiffs could still get the relief they sought. That's because the district court might agree with them that the travel ban only applied to entry, not visas, and that the INA prohibits discrimination in issuing visas by nationality--even under Trump v. Hawaii. The court didn't opine on those questions, however; instead, it sent the case back to the district court for a ruling on them.

A win in the district court (or on appeal) could mean that the plaintiffs get their visas, and even get consideration under exceptions to the travel ban. But actual entry will require more: a decision that they meet an exception to the travel ban.

August 13, 2019 in Cases and Case Materials, Courts and Judging, Jurisdiction of Federal Courts, Mootness, News, Opinion Analysis | Permalink | Comments (1)

Thursday, August 1, 2019

District Court Rules Brewer's Government Shutdown Claim Moot

Judge Christopher R. Cooper (D.D.C.) dismissed as moot a case by Atlas Brew Works arguing that the government's inability to approve its beer label during the government shutdown earlier this year violated its First Amendment right to free speech. In particular, Judge Cooper ruled that Atlas's claim didn't meet the mootness exception for cases that are "capable of repetition but evading review."

The case, Atlas Brew Works v. Barr, arose during the government shutdown, when, because of a lack of appropriated funds, the Alcohol and Tobacco Tax and Trade Bureau (in Treasury) couldn't approve Atlas's pending application for a label, as required by the Federal Alcohol Administration Act. (The FAA requires Bureau approval of a label before a brewer can distribute its beer in interstate commerce. It provides criminal penalties for violators.) Atlas filed suit, arguing that the government's failure to approve its pending label infringed on its right to free speech, because the lack of approval meant that it couldn't legally distribute its seasonal beer, which, without an approved label, would go stale. (Atlas put it this way: "[i]t cannot be denied the right to speak for lack of meeting an impossible condition.") Atlas sought a temporary restraining order and preliminary injunction preventing the Justice Department from enforcing the FAA's criminal sanctions against it.

Once the shutdown ended, the government moved to dismiss the case as moot. Yesterday, the court agreed.

The court ruled first that Atlas's claim couldn't survive as a challenge to the government's policy, because, in short, there's no ongoing policy behind the shutdown that would infringe on Atlas's free speech.

The court ruled next that Atlas's claim was not capable of repetition but evading review. Judge Cooper explained:

To recap the boxes that must be checked for this dispute to recur: a lapse in appropriations must happen; the lapse must affect the Treasury Department; the lapse must last long enough to actually cause a shutdown; Treasury must respond to the shutdown by shuttering the [beer-label approval process under the FAA]; and Atlas must have a [label] application pending at the time the shutdown begins or file one shortly thereafter. In the Court's view, the combination of these contingencies takes this case beyond the limits of the capable-of-repetition exception to mootness.

August 1, 2019 in Cases and Case Materials, Courts and Judging, Jurisdiction of Federal Courts, Mootness, News, Opinion Analysis | Permalink | Comments (0)

Tuesday, July 30, 2019

District Court Tosses DNC's Case Against Russia, Trump Campaign for Hacking its Computers, Distributing Stolen Materials

Judge John G. Koeltl (S.D.N.Y.) today dismissed the Democratic National Committee's lawsuit against the Russian Federation, the Trump Campaign, and individuals associated with the campaign for hacking into DNC computers in the 2016 presidential election and distributing stolen material through WikiLeaks.

The ruling ends the case, unless and until the DNC appeals.

The DNC brought the case under a variety of federal statutes, including RICO, and state common law trespass and conversion. The DNC alleged that Russia unlawfully hacked DNC computers and distributed stolen material, and that this benefited the Trump campaign, which "welcomed" the help.

The court dismissed the claims against Russia under the Foreign Sovereign Immunities Act. (The court said that exceptions to the FSIA don't apply because not all of Russia's activities occurred within the United States.) It dismissed the claims against the other defendants under the First Amendment. Here's the short version why:

the First Amendment prevents such liability in the same way [under Bartnicki v. Vopper, ed.] it would preclude liability for press outlets that publish materials of public interest despite defects in the way the materials were obtained so long as the disseminator did not participate in any wrongdoing in obtaining the materials in the first place. The plausible allegations against the remaining defendants are insufficient to hold them liable for the illegality that occurred in obtaining the materials from the DNC.

So what about all the contacts between the defendants: Don't they show that the defendants "participated in wrongdoing"? The court said no: the DNC simply didn't plead sufficient facts to show this. 

The court rejected the DNC's attempt to distinguish or work around Bartnicki, ruling that the case doesn't permit a challenge for stolen trade secrets, or for "after-the-fact" coconspiracy to steal the documents.

The court ruled that there were other reasons to dismiss the case, based on some of the specific causes of action.

 

July 30, 2019 in Cases and Case Materials, First Amendment, Jurisdiction of Federal Courts, News, Opinion Analysis, Speech | Permalink | Comments (0)

Monday, July 29, 2019

District Court--Yet Again--Rejects Fed's Approval of State Medicaid Work Requirement

Judge James S. Boasberg (D.D.C.) ruled today that the Secretary of Health and Human Services violated the Administrative Procedure Act in approving a state's proposed work requirements for its Medicaid recipients.

The ruling in Philbrick v. Azar comes just months after the court struck HHS's approvals for Arkansas's and Kentucky's proposed work requirements.Those rulings are now on appeal to the D.C. Circuit.

The government didn't change its position or arguments from the earlier cases, suggesting that it's banking on higher courts to rule in its favor and uphold the approvals.

Judge Boasberg ruled here, as in the earlier cases, that HHS didn't sufficiently consider the purpose of the Medicaid program--to provide health care for the financially needy--in granting the approvals for work requirements. The court noted that the requirements mean that Medicaid beneficiaries lose benefits, not gain them, in direct contradiction to the purpose of the program.

Here's the court's summary:

Plaintiffs argue that the Secretary's approval of New Hampshire's plan suffers from the same deficiency [as the Arkansas and Kentucky plans] and thus must meet the same fate. The Court concurs. On their face, these work requirements are more exacting than Kentucky's and Arkansas's, mandating 100 monthly hours--as opposed to 80--of employment or other qualifying activities. They also encompass a larger age range than in Arkansas, which applied the requirements only to persons 19 to 49. Yet the agency has still not contended with the possibility that the project would cause a substantial number of persons to lose their health-care coverage. That omission is particularly startling in light of information before the Secretary about the initial effects of Arkansas's markedly similar project--namely, that more than 80% of persons subject to the requirements had reported no compliance for the initial months, and nearly 16,900 people had lost coverage. The agency's rejoinders--that the requirements advance other asserted purposes of Medicaid, such as the health and financial independence of beneficiaries and the fiscal sustainability of the safety net--are identical to those this Court rejected with respect to HHS's 2018 approval of Kentucky's program.

The government will surely appeal this ruling, too, and try to get the D.C. Circuit or, ultimately, the Supreme Court to bite at its arguments.

July 29, 2019 in Cases and Case Materials, Congressional Authority, Executive Authority, News, Opinion Analysis, Separation of Powers | Permalink | Comments (0)

Wednesday, July 10, 2019

Fourth Circuit Tosses D.C., Maryland Emoluments Suit Against Trump for Lack of Standing

The Fourth Circuit ruled that Maryland and D.C. lacked standing to pursue their case against President Trump that he's violating the Foreign and Domestic Emoluments Clauses. The decision reverses a district court ruling and dismisses the case.

We last posted here and here.

The ruling means that this case goes away. And while the court only ruled on standing, it also noted that the plaintiffs faced plenty of other obstacles in bringing an emoluments case against the president--everything from the justiciability of emoluments claims to presidential immunity. In other words, even if there's some plaintiff with standing to bring this kind of suit, they'll face serious headwinds for other constitutional reasons.

The ruling is especially notable because it came on the president's motion for mandamus. Mandamus is an extraordinary form of relief, and the standard is quite high. Still, the court ruled that the president met it, underscoring just how wrong the Fourth Circuit thought the district court's ruling was.

The Fourth Circuit held that the plaintiffs lacked standing based on harm to their proprietary interests in their own convention centers when the Trump International Hotel siphons off business from them. According to the court, one problem was that the plaintiffs couldn't show that any violation of the Emoluments Clauses caused their harm:

To begin, the District and Maryland's theory of proprietary harm hinges on the conclusion that government customers are patronizing the Hotel because the Hotel distributes profits or dividends to the President, rather than due to any of the Hotel's other characteristics. Such a conclusion, however, requires speculation into the subjective motives of independent actors who are not before the court, undermining a finding of causation.

Another problem was redressability--that the plaintiffs' requested relief wouldn't redress their harm:

And, even if government officials were patronizing the Hotel to curry the President's favor, there is no reason to conclude that they would cease doing so were the President enjoined from receiving income from the Hotel. After all, the Hotel would still be publicly associated with the President, would still bear his name, and would still financially benefit members of his family.

The court next rejected the plaintiffs' claims of parens patriae standing to protect the economic interests of their citizens. The court said that these claims ran into exactly the same problems that the plaintiffs' own proprietary-harm claims ran into--no causation, no redressability.

Finally, the court rejected the plaintiffs' claim that they suffered an injury to their quasi-sovereign interests--that "[t]heir injury is the violation of their constitutionally protected interest in avoiding entirely pressure to compete with others for the President's favor by giving him money or other valuable dispensations" and that "it is the opportunity for favoritism that disrupts the balance of power in the federal system and injures the District and Maryland." The court said simply that "[t]his alleged harm amounts to little more than a general interest in having the law followed"--not enough for standing.

July 10, 2019 in Cases and Case Materials, Courts and Judging, Executive Authority, Jurisdiction of Federal Courts, News, Opinion Analysis, Standing | Permalink | Comments (0)

Sunday, June 30, 2019

District Court Halts Reprogramming Funds for Border Wall Construction

Judge Haywood S. Gilliam, Jr., (N.D. Cal.) issued a permanent injunction on Friday halting the Trump Administration's efforts to reprogram Defense Department funds to construct portions of a border wall. The ruling largely incorporates the court's reasoning from its earlier preliminary injunction.

The court declined to stay the injunction pending appeal. This means that the injunction will stay in place unless and until the Ninth Circuit vacates it.

The court ruled that Trump Administration officials "are enjoined from taking any action to construct a border barrier in the areas Defendants have identified as El Paso Sector 1, Yuma Sector 1, El Centro Sector, and Tucson Sectors 1-3 using funds reprogrammed by DoD under Sections 8005 and 9002 of the Department of Defense Appropriations Act, 2019."

At the same time, the court denied the plaintiffs' request for a declaratory judgment concerning the government's invocation of Sections 8005 and 9002 beyond those sectors, its invocation of Section 284 (but only because it didn't have to rule on this, see below), and its compliance with the National Environmental Policy Act.

The ruling does not stop the Administration from using other, valid sources of funding for the wall. Thus, the ruling does not stop the Administration from using $1.375 "for the construction of primary pedestrian fencing, including levee pedestrian fencing, in the Rio Grande Valley Sector" under the Consolidated Appropriations Act of 2019 (although that funding comes with its own statutory restrictions). It also does not stop the Administration from using "[a]bout $601 million from the Treasury Forfeiture Fund."

But those together don't come anywhere close to the $5.7 billion sought by the President in the CAA process. That's why this ruling is such a blow to the Administration's effort to build a border wall. 

Importantly, the ruling is not based on the President's use of "emergency" power or the President's determination of what's in the "national interest." Instead, the court ruled that the reprogramming violated other statutory provisions.

Here's a quick review of the relevant statutory issues:

Sections 2005, 2009, and 284

Under Section 284, "[t]he Secretary of Defense may provide support for the counterdrug activities . . . of any other department or agency of the Federal Government" if "such support is requested . . . by the official who has responsibility for [such] counterdrug activities." 10 U.S.C. Sec. 284. But the Administration didn't (and doesn't) intend to use appropriated funds under Section 284 for a border wall. Instead, as the court said, "every dollar of Section 284 support to DHS and its enforcement agency, CBP, [for construction of the wall] is attributable to reprogramming mechanisms."

One of those mechanisms is Section 8005 of the 2019 DOD Appropriations Act. That provision authorizes the Secretary of Defense to transfer up to $4 billion "of working capital funds of the Department of Defense or funds made available in this Act to the Department of Defense for military functions (except military construction)." Under the provision, the transfer must be (1) either (a) DOD working capital funds or (b) "funds made available in this Act to the [DOD] for military functions (except military construction)," (2) first determined by the Secretary of Defense as necessary in the national interest, (3) for higher priority items than those for which originally appropriated, (4) based on unforeseen (5) military requirements, and (6) in  no case where the item for which funds are requested has been denied by Congress. 

The court ruled in its earlier order granting a preliminary injunction that the plaintiffs are likely to show that the funds were denied by Congress (because Congress considered, and denied, full funding for the wall); that the transfer is not based on "unforeseen military requirements" (because there was nothing "unforeseen" about this, as evidenced by "the Administration's multiple requests for funding for exactly that purpose dating back to at least early 2018"); and that the Administration's interpretation of Section 8005 would raise constitutional questions (because that interpretation would "authorize[] the Acting Secretary of Defense to essentially triple--or quintuple, when considering the recent additional $1.5 billion reprogramming--the amount Congress allocated to this account for these purposes, notwithstanding Congress's recent and clear actions in passing the CAA, and the relevant committees' express disapproval of the proposed reprogramming," and "reading Section 8005 to permit this massive redirection of funds under these circumstances likely would amount to an 'unbounded authorization for Defendants to rewrite the federal budget'" in violation of the separation of powers). 

In yesterday's order granting a permanent injunction, the court also rejected the Administration's effort to use Section 9002 of the DOD Appropriations Act of 2019 as a mechanism for reprogramming, because "Section 9002 authority . . . is subject to Section 8005's limitations."

Given that the government acknowledged that "all of the money they plan to spend on border barrier construction under Section 284 is money transferred into the relevant account under Sections 8005 and 9002 . . . the Court's ruling as to Sections 8005 and 9002 obviates the need to independently assess the lawfulness of Defendants' invocation of Section 284."

Section 2808

Section 2808 authorizes the Secretary of Defense to "undertake military construction projects, and may authorities the Secretaries of the military departments to undertake military construction projects, not otherwise authorized by law." 10 U.S.C. Sec. 2808. The provision requires that the President first declare a national emergency under the National Emergencies Act. The court previously ruled that "it is unclear how border barrier construction could reasonably constitute a 'military construction project' such that Defendants' invocation of Section 2808 would be lawful." The court incorporated that reasoning into its order granting a permanent injunction. 

NEPA

NEPA requires the government to undertake an environmental impact assessment of agency actions. The court ruled previously that DHS validly waived NEPA's requirements as to the wall, and that the actions therefore don't violate NEPA. It incorporated that reasoning on Friday. 

June 30, 2019 in Cases and Case Materials, Congressional Authority, Executive Authority, News, Opinion Analysis, Separation of Powers | Permalink | Comments (0)

Wednesday, June 26, 2019

Court Strikes State Residency Requirement for Liquor Store Licenses

The Supreme Court ruled today in Tennessee Wine and Spirits Retailers Ass'n v. Thomas that Tennessee's 2-year durational-residency requirement for retail liquor store license applicants violates the dormant Commerce Clause and is not saved by the Twenty-first Amendment.

The 7-2 ruling, authored by Justice Alito, is a strong endorsement of the Court's dormant Commerce Clause jurisprudence, which sets limits on states' economic protectionism and discrimination against interstate commerce.

Justice Alito, joined by Chief Justice Roberts and Justices Ginsburg, Breyer, Sotomayor, Kagan, and Kavanaugh, wrote first that the residency requirement violated the dormant Commerce Clause. The Court said that while "[i]n recent years, some Members of the Court have authored vigorous and thoughtful critiques of" the dormant Commerce Clause,

the proposition that the Commerce Clause by its own force restricts state protectionism is deeply rooted in our case law. And without the dormant Commerce Clause, we would be left with a constitutional scheme that those who framed and ratified the Constitution would surely find surprising.

The Court went on to say that Tennessee's 2-year durational-residency requirement "plainly favors Tennesseans over nonresidents" in violation of the doctrine.

As to the Twenty-first Amendment, the Court said that despite "the ostensibly broad text of Section 2 . . . we have looked to history for guidance, and history has taught us that the thrust of Section 2 is to 'constitutionaliz[e]' the basic structure of federal-state alcohol regulatory authority that prevailed prior to the adoption of the Eighteenth Amendment." Under that reading, the Court said that "as recognized during that period, the Commerce Clause did not permit the States to impose protectionist measures clothed as police-power regulations."

In short, "Section 2 cannot be given an interpretation that overrides all previously adopted constitutional provisions," including the dormant Commerce Clause, and therefore Tennessee's residency requirement isn't saved by the Twenty-first Amendment.

Justice Gorsuch, joined by Justice Thomas, dissented. Justice Gorsuch argued that the plain text of the Twenty-first Amendment, the history, and early Court interpretations all point toward permitting state residency requirements:

But through it all, one thing has always held true: States may impose residency requirements on those who seek to sell alcohol within their borders to ensure that retailers comply with local laws and norms. In fact, States have enacted residency requirements for at least 150 years, and the Tennessee law at issue before us has stood since 1939. Today and for the first time, the Court claims to have discovered a duty and power to strike down laws like these as unconstitutional.

June 26, 2019 in Cases and Case Materials, Commerce Clause, Dormant Commerce Clause, Federalism, News, Opinion Analysis | Permalink | Comments (0)

Auer Deference, Limited, Hangs On (but Chevron may soon go)

In a closely watched administrative law and separation-of-powers case, Kisor v. Wilkie, the Court today declined to overrule Auer v. Robbins, which says that courts should defer to agencies' interpretations of their own ambiguous regulations. At the same time, however, the Court sharply limited its application. As a result, Auer deference hangs on, but in a more (perhaps much more) limited form.

And although the case didn't raise Chevron deference (which says that courts defer to agencies' interpretation of applicable federal law), signs suggest that it's next on the chopping block.

The Court split sharply over whether to overrule Auer. Justice Kagan, joined by Chief Justice Roberts and Justices Ginsburg, Breyer, and Sotomayor on this point, wrote to keep it in place, but limit it. Justice Gorsuch, joined by Justices Thomas, Alito, and Kavanaugh, wrote to overrule it.

Writing for the Court, Justice Kagan wrote that Auer deference depends on a preceding two-step, thus limiting it in future applications. "First and foremost, a court should not afford Auer deference unless the regulation is genuinely ambiguous. If uncertain does not exist, there is no plausible reason for deference." Next, "[i]f genuine ambiguity remains, moreover, the agency's reading must still be 'reasonable.' In other words, it must come within the zone of ambiguity the court has identified after employing all its interpretive tools. . . ." Even then,

[s]till, we are not done--for not every reasonable agency reading of a genuinely ambiguous rule should receive Auer deference. We have recognized in applying Auer that a court must make an independent inquiry into whether the character and context of the agency interpretation entitles it to controlling weight. . . .

To begin with, the regulatory interpretation must be one actually made by the agency. . . .

Next, the agency's interpretation must in some way implicate its substantive expertise. . . .

Finally, an agency's reading of a rule must reflect "fair and considered judgment" to receive Auer deference. . . .

The Court also held that under stare decisis principles, Auer should stay in place.

Chief Justice Roberts joined much, but not all, of the Court's opinion (the portions specifying the limits of Auer deference and upholding Auer under stare decisis) and wrote separately "to suggest that the distance between the majority and JUSTICE GORSUCH is not as great as it may initially appear." Importantly, he also wrote that nothing in today's ruling says anything about the continued validity of Chevron deference: "Issues surrounding judicial deference to agency interpretations of their own regulations are distinct from those raised in connection with judicial deference to agency interpretations of statutes enacted by Congress. [Chevron.]"

Justice Gorsuch, joined by Justices Alito, Thomas, and Kavanaugh, would have overruled Auer. (Indeed, Justice Gorssuch read the majority's ruling to more-or-less do that.)

The four conventional progressives differed sharply from four conventional conservatives (minus Chief Justice Roberts) over the history and reasons for Auer deference, whether Auer deference violates the Administrative Procedure Act, and whether it violates the separation of powers. (On this last point, four conservatives (again, minus Chief Justice Roberts) argued that Auer deference meant that executive agencies were exercising the judicial power, in violation of the separation of powers. The four progressives disagreed.) This means that there's 4-4 split on the Court over these questions, with Chief Justice Roberts declining to join either side (but nevertheless voting to uphold Auer under stare decisis).

Justice Kavanaugh, joined by Justice Alito, wrote separately to agree with Chief Justice Roberts that "the distance between the majority and JUSTICE GORSUCH is not as great as it may initially appear," and that this case doesn't touch on Chevron deference.

June 26, 2019 in Cases and Case Materials, Courts and Judging, Executive Authority, News, Opinion Analysis, Separation of Powers | Permalink | Comments (0)

Monday, June 24, 2019

Court Strikes Law Criminalizing Possession of Firearm in Connection with "Crime of Violence"

The Supreme Court ruled today that a federal criminal law that enhances criminal penalties for using, carrying, or possessing a firearm in connection with any federal "crime of violence or drug trafficking crime" was unconstitutionally vague. The ruling strikes the law.

The case, United States v. Davis, tested the federal law that enhances penalties (over and above a defendant's base conviction) for using, carrying, or possessing a firearm "in furtherance of" any federal "crime of violence or drug trafficking crime." The statute then defines "crime of violence" in two subparts, an "elements clause" and a "residual clause." Under the act, a crime of violence is "an offense that is a felony" and

(A) has as an element the use, the attempted use, or threatened use of physical force against the person or property of another, or

(B) that by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.

The Court ruled the residual clause, (B), unconstitutionally vague.

Justice Gorsuch wrote for the Court, joined by Justices Ginsburg, Breyer, Sotomayor, and Kagan. He started by noting that the vagueness doctrine is designed to protect due process and the separation of powers:

In our constitutional order, a vague law is no law at all. Only the people's elected representatives in Congress have the power to write new federal criminal laws. And when Congress exercises that power, it has to write statutes that give ordinary people fair warning about what the law demands of them. Vague laws transgress both of those constitutional requirements. They hand off the legislature's responsibility for defining criminal behavior to unelected prosecutors and judges, and they leave people with no sure way to know what consequences will attach to their conduct. When Congress passes a vague law, the role of the courts under our Constitution is not to fashion a new, clearer law to take its place, but to treat the law as a nullity and invite Congress to try again.

Justice Gorsuch compared the residual clause to similar language that the Court ruled unconstitutionally vague in Johnson v. United States (defining "violent felony" as a "serious potential risk of physical injury to another") and Sessions v. Dimaya (defining "crimes of violence" for many federal statutes). He rejected the government's argument that the courts should interpret the residual clause on a case-by-case basis (to determine in any individual case whether the crime fit the definition), concluding that reading the act's text, context, and history, the act "simply cannot support the government's newly minted case-specific theory." He also rejected the government's constitutional avoidance argument, "doubt[ing] [that] the canon could play a proper role in this case even if the government's reading were 'possible.'" That's because "no one before us has identified a case in which this Court has invoked the canon to expand the reach of a criminal statute in order to save it."

Justice Kavanaugh dissented, joined by Chief Justice Roberts and Justice Thomas and Alito. Justice Kavanaugh distinguished Johnson and Dimaya, arguing that "[t]hose cases involved statutes that imposed additional penalties based on prior convictions," while "[t]his case involves a statute that focuses on the defendant's current conduct during the charged crime." "The statute here operates entirely in the present[, and] [u]nder our precedents, this statute therefore is not unconstitutionally vague." He also pointed to the statute's impact on crime rates, and many years of application of it:

[One] cannot dismiss the effects of state and federal laws that impose steep punishments on those who commit violence crimes with firearms.

Yet today, after 33 years and tens of thousands of federal prosecutions, the Court suddenly finds a key provision of Section 924(c) to be unconstitutional because it is supposedly too vague. That is a surprising conclusion for the Court to reach about a federal law that has been applied so often for so long with so little problem. The Court's decision today will make it harder to prosecute violent gun crimes in the future. The Court's decision also will likely mean that thousands of inmates who committed violent gun crimes will be released far earlier than Congress specified when enacting Section 924(c). The inmates who will be released early are not nonviolent offenders. They are not drug offenders. They are offenders who committed violent crimes with firearms, often brutally violent crimes.

A decision to strike down a 33-year-old, often-prosecuted federal criminal law because it is all of a sudden unconstitutionally vague is an extraordinary event in this Court. The Constitution's separation of powers authorizes this Court to declare Acts of Congress unconstitutional. That is an awesome power. We exercise that power of judicial review in justiciable cases to, among other things, ensure that Congress acts within constitutional limits and abides by the separation of powers. But when we overstep our role in the name of enforcing limits on Congress, we do not uphold the separation of powers, we transgress the separation of powers.

Chief Justice Roberts did not join the portion of Justice Kavanaugh's dissent that argues that the statute is saved under the unconstitutional avoidance canon.

June 24, 2019 in Cases and Case Materials, Congressional Authority, Courts and Judging, Due Process (Substantive), Executive Authority, News, Opinion Analysis, Separation of Powers | Permalink | Comments (0)

Industry Group Has Standing to Appeal FOIA Ruling

The Supreme Court ruled today in Food Marketing Institute v. Argus Leader Media that an industry group had standing to appeal a lower court's FOIA ruling that would have required government disclosure of information that would have harmed the group's members.

The case arose when Argus Leader Media filed a FOIA request with the USDA for the names and addresses of all retail grocery stores that participate in the national food-stamp program, SNAP, along with each store's annual SNAP redemption data from 2005 to 2010. USDA declined to provide the redemption data, citing FOIA's Exemption 4, which protects "confidential" commercial information. The district court ruled against the agency under the circuit's "substantial harm" test to determine whether information is "confidential." (Under the test, information is protected if its disclosure would create a substantial harm to the competitive position of the person or firm from whom the information was obtained (the participating grocery stores).) USDA declined to appeal, so the Food Marketing Institute stepped in to challenge the ruling.

The Court today ruled that the Institute had standing to appeal. The Court held that disclosure of the requested information would "likely cause some financial injury" to its members, and that a favorable Court ruling would redress that injury. As to Argus's claim that a judicial ruling would simply restore the government's discretion to withhold the data (and thus that redressability was speculative, not a sure thing), the Court said that "the government has represented unequivocally that, consistent with its longstanding policy and past assurances of confidentiality to retailers, it 'will not disclosure' the contested data unless to do so by the district court's order."

The Court went on to abandon the "substantial harm" test (thus lowering the bar on Exemption 4 and making it easier for an agency to withhold information under that Exemption) and to rule in favor of the Institute:

At least where commercial or financial information is both customarily and actually treated as private by its owner and provided to the government under an assurance of privacy, the information is "confidential" within the meaning of Exemption 4. Because the store-level SNAP data at issue here is confidential under that construction, the judgment of the court of appeals is reversed and the case is remanded for further proceedings consistent with this opinion.

June 24, 2019 in Cases and Case Materials, Courts and Judging, News, Opinion Analysis, Standing | Permalink | Comments (0)

Thursday, June 20, 2019

Nondelegation Standard Hangs On (but maybe not for long)

The Supreme Court today rejected a nondelegation challenge to a provision in the federal Sex Offender Registration and Notification Act that authorized the Attorney General to "specify the applicability" of the registration requirement under the Act to pre-Act offenders. We last posted on the case--an analysis of the oral arguments--here.

The ruling leaves the nondelegation standard in place, but perhaps not for long. There are three clear votes (Chief Justice Roberts and Justices Thomas and Gorsuch), and probably a fourth (Justice Alito), to reevaluate and tighten up the standard. If Justice Kavanaugh, who was recused from today's ruling, joins those four, the Court will likely take a new approach to nondelegation in coming Terms, and sharply restrict Congress's authority to delegate powers to executive agencies. Depending on the approach, this could take down any number of federal statutes that give discretion to executive agencies.

In short: We still have an "intelligible principle" approach to the nondelegation doctrine, which permits Congress to delegate broad authority and discretion to executive agencies. But that's likely to change soon.

The case, Gundy v. United States, tested SORNA's delegation to the AG as a violation of the separation of powers. In short, Gundy argued that Congress ceded away too much law-making authority to the Executive Branch when it authorized the AG to "specify the applicability" of the Act's registration requirement to pre-Act offenders.

The Court ruled 5-3 (Justice Kavanaugh recused) to uphold the delegation.

Justice Kagan wrote the plurality opinion, joined by Justices Ginsburg, Breyer, and Sotomayor. The plurality said that SORNA's delegation to the AG satisfied the long-standing nondelegation doctrine test--that a congressional act that delegates authority to the Executive Branch with "intelligible principles" does not violate the separation of powers. Justice Kagan wrote that SORNA's delegation provided "intelligible principles," because it only delegated to the AG the power to determine when (but not if) SORNA's registration requirement would apply to pre-Act offenders. She argued that Congress authorized this flexibility because of the possible logistical issues for some pre-Act offenders (those who have been released from prison, e.g.) to register. She wrote that this understanding of the delegation is confirmed by the Act's test and legislative history, and by the Court's interpretation of the delegation in Reynolds v. United States.

Justice Alito concurred in the result, but wrote separately to say that he'd be willing to consider the "intelligible principle" approach to the nondelegation doctrine in an appropriate case.

Justice Gorsuch dissented, joined by Chief Justice Roberts and Justice Thomas. Justice Gorsuch argued that the "intelligible principle" approach to the nondelegation doctrine allows too much congressional delegation to the Executive Branch and violates the separation of powers.

June 20, 2019 in Cases and Case Materials, Congressional Authority, Executive Authority, News, Opinion Analysis, Separation of Powers | Permalink | Comments (0)

Monday, June 17, 2019

SCOTUS Upholds Virginia's Ban on Uranium Mining

The Supreme Court today upheld Virginia's ban on uranium mining against a federal preemption challenge by a mining company. The ruling says that the federal Atomic Energy Act does not preempt Virginia's ban.

The case, Virginia Uranium, Inc. v. Warren, arose when Virginia Uranium sought to mine raw uranium ore from a site near Coles Hill, Virginia. The problem: Virginia law prohibits uranium mining in the Commonwealth. So Virginia Uranium sued, arguing that the ban was preempted under the federal AEA.

The Court ruled 6-3 that the AEA did not preempt the Commonwealth's ban. Justice Gorsuch wrote the lead opinion, joined by Justices Thomas and Kavanaugh. He wrote that the AEA, by its plain terms, regulated milling and waste disposal, but not mining. So the AEA doesn't field-preempt Virginia's ban, and it doesn't obstacle-preempt Virginia's ban. Justice Gorsuch emphasized a textual approach, because, he argued, considering state legislative purposes (in a field preemption analysis) and congressional purposes (in an obstacle preemption analysis) would be fraught with difficulties and uncertainties.

Justice Ginsburg wrote a concurring opinion, joined by Justices Sotomayor and Kagan. She agreed with Justice Gorsuch, but argued that "his discussion of the perils of inquiring into legislative motive sweeps well beyond the confines of this case, and therefore seems to me inappropriate in an opinion speaking for the Court, rather than for individual members of the Court." Moreover, "Virginia Uranium's obstacle preemption arguments fail under existing doctrine, so there is little reason to question, as Justice Gorsuch does, whether that doctrine should be retained."

Chief Justice Roberts dissented, joined by Justices Breyer and Alito. He argued that Virginia sought an end-run around the AEA by banning mining (which the AEA doesn't regulate), but for the purpose of banning milling and waste (which the AEA does regulate).

Thus, the question before us is whether, consistent with the AEA and our precedents, the Commonwealth may purport to regulate a non-preempted field (mining safety) with the purpose and effect of indirectly regulating a preempted field (milling and [waste]). That should have made for an easy case.

Under our AEA precedents, a state law is preempted not only when it "conflicts with federal law," but also when its purpose is to regulate within a preempted field.

June 17, 2019 in Cases and Case Materials, Federalism, News, Opinion Analysis, Preemption | Permalink | Comments (0)

High Court Affirms Separate Sovereigns Doctrine

The Supreme Court today upheld the "separate sovereigns" doctrine that permits, consistent with double jeopardy, the prosecution of the same person for the same criminal act under state and federal law.

The ruling means that both a state government and the federal government can prosecute the same person for the same crime without running afoul of the Fifth Amendment's prohibition on double jeopardy.

It also means that those subject to federal prosecution in the Mueller investigation can be prosecuted under state law. That's significant, because President Trump can't pardon someone for a violation of state law.

The ruling, Gamble v. United States, grew out of a federal felony-in-possession charge against Terance Gamble after he had been convicted of felony in possession under Alabama law. Gamble argued that the federal charge violated double jeopardy. The Court disagreed.

Justice Alito wrote for the Court, including Chief Justice Roberts and Justices Thomas, Breyer, Sotomayor, Kagan, and Kavanaugh. Justice Alito made it simple:

We start with the text of the Fifth Amendment. Although the dual-sovereignty rule is often dubbed an "exception" to the double jeopardy right, it is not an exception at all. On the contrary, it follows from the text that defines that right in the first place. "[T]he language of the Clause . . . protects individuals from being twice put in jeopardy 'for the same offence,' not the same conduct or actions," as Justice Scalia wrote in a soon-vindicated dissent. And the term "'[o]ffense was commonly understood in 1791 to mean 'transgression,' that is, 'the Violation or Breaking of a Law.'" As originally understood, then, an "offence" is defined by a law, and each law is defined by a sovereign. So where there are two sovereigns, there are two laws, and two "offences."

The Court rejected Gamble's claim that the dual sovereignty doctrine contradicts the common-law rights that the Double Jeopardy Clause was originally understood to protect:

The English cases are a muddle. Treatises offer spotty support. And early state and federal cases are by turns equivocal and downright harmful to Gamble's position. All told, this evidence does not establish that those who ratified the Fifth Amendment took it to bar successive prosecutions under different sovereigns' laws--much less do so with enough force to break a chain of precedent linking dozens of cases over 170 years.

The Court also rejected his claim that "the Double Jeopardy Clause's incorporation against the states washed away any theoretical foundation for the dual-sovereignty rule," because "the premises of the dual-sovereignty doctrine have survived incorporation intact." "Incorporation meant that the States were now required to abide by this Court's interpretation of the Double Jeopardy Clause. But that interpretation has long included the dual-sovereignty doctrine, and there is no logical reason why incorporation should change it."

Justice Thomas wrote a concurring opinion and argued that "the Court's typical formulation of the stare decisis standard does not comport with our judicial duty under Article III because it elevates demonstrably erroneous decisions--meaning decisions outside the realm of permissible interpretation--over the text of the Constitution and other duly enacted federal law." Justice Thomas argued that the Court's strong application of stare decisis to "demonstrably erroneous precedent" means that the Court is making the law, and impermissibly encroaching on the role of Congress in violation of the separation of powers. If there were any doubt, he singled out precedents under substantive due process as examples of "demonstrably erroneous precedent."

Justice Ginsburg dissented, arguing that "[t]he United States and its constituent States, unlike foreign nations, are 'kindred systems,' 'parts of ONE WHOLE'" and that "[w]ithin that 'WHOLE,' the Federal and State Governments should be disabled from accomplishing together 'what neither government [could] do alone--prosecute an ordinary citizen twice for the same offense.'"

Justice Gorsuch also dissented, arguing that "this 'separate sovereigns exception' to the bar against double jeopardy finds no meaningful support in the text of the Constitution, its original public meaning, structure, or history."

June 17, 2019 in Cases and Case Materials, Federalism, News, Opinion Analysis | Permalink | Comments (0)

Friday, June 14, 2019

Fourth Circuit Upholds Federal Hate Crimes Statute Against As-Applied Commerce Clause Challenge

The Fourth Circuit this week rejected an as-applied Commerce Clause challenge to the Matthew Shepard & James Byrd, Jr. Hate Crimes Prevention Act of 2009. The divided court (2-1) ruled that the Act, which criminalizes certain hate-crimes based on sexual orientation, fell within Congress's Commerce Clause authority.

As the court noted, this is the first federal appeals court ruling on "[w]hether the Hate Crimes Act may be constitutionally applied to an unarmed assault of a victim engaged in commercial activity at his place of work . . . ."

The case, United States v. Hill, turned on the Act's "jurisdictional element," which requires a commercial connection--but, importantly, by its plain terms not necessarily a "foreign" or "inter-state" commercial connection. It's that lack of a textual "foreign" or "inter-state" commercial connection that divided the majority and dissent. The majority held that the jurisdictional element, as applied to this case, fell within Congress's Commerce Clause authority, even without a specific textual required a "foreign" or "inter-state" commercial connection. The dissent said not.

The case arose when James Hill III physically and violently assaulted Curtis Tibbs, a co-worker at an Amazon fulfillment center, because Tibbs is gay. (Hill didn't deny this; indeed, he boasted about it.) Hill repeatedly punched Tibbs in the face, causing significant bruising, cuts, and a bloody nose. Tibbs left his shift to go to the hospital for treatment, and the facility shut down the area of the assault for 30 to 45 minutes to clean blood off the floor.

Because Tibbs worked as a "packer," preparing goods for interstate shipment, and because Virginia doesn't have a hate-crimes law that criminalizes assault because of sexual orientation, the federal government charged Hill under the Shepard & Byrd Act. The government relied on a "jurisdictional element" in the Act that requires that the defendant's behavior "interfere[d] with commercial or other economic activity in which the victim [was] engaged at the time of the conduct."

Hill was convicted, but the district court granted is motion for a judgment of acquittal, holding that the Act was unconstitutional as applied to Hill. The Fourth Circuit reversed.

The court ruled that the Hill's assault met the jurisdictional element (because Tibbs was packing goods for shipment in commerce), and that the jurisdictional element fell within Congress's Commerce Clause authority.

[W]hen Congress may regulate an economic or commercial activity, it also may regulate violent conduct that interferes with or affects that activity. Hence, if individuals are engaged in ongoing economic or commercial activity subject to congressional regulation--as Tibbs was at the time of the assault--then Congress also may prohibit violent crime that interferes with or affects such individuals' ongoing economic or commercial activity, including the type of bias-motivated assaults proscribed by the Hate Crimes Act.

The court rejected Hill's argument that the assault didn't have a substantial effect on commerce because the facility as a whole still met its shipments:

That Amazon was able to absorb the impact of Tibbs' absence without missing any key shipping deadlines and that the fulfillment center's performance during the shift impacted by Tibbs' assault was in-line with its performance during other shifts does not call into question this determination. On the contrary, the Supreme Court and this Court repeatedly have clarified that Congress may regulate interferences with commerce, even if the effect of the interference on interstate commerce in an individual case is "minimal." . . . .

Similarly, this Court has held that, in as-applied Commerce Clause challenges, "the relevant question . . . is not whether one particular offense has an impact on interstate commerce, but whether the class of acts proscribed has such an impact."

The court acknowledged the importance of the jurisdictional element in the case--and, by extension, to any congressional act--writing that the "Defendant has not identified any case--nor have we found any such case--in which a federal criminal statute including an interstate commerce jurisdictional element has been held to exceed Congress's authority under the Commerce Clause."

Judge Agee dissented, arguing that the jurisdictional element "does not limit the class of activities being regulated to acts that fall under Congress' Commerce Clause power" and that "the root activity . . . regulated in this case--a bias-motivated punch--is not an inherently economic activity." As to the jurisdictional element, Judge Agee argued that it is different than other jurisdictional elements in this statute and in other statutes, and that it sweeps beyond Congress's power to regulate inter-state or foreign commerce:

In contrast, [the jurisdictional element here] is a distinct outlier without an interstate or foreign commerce statutory nexus. Nor is the unrestricted phrase "commercial or other economic activity" one of the categories the Supreme Court has identified as an area Congress can regulate under its Commerce Clause power. By [the jurisdictional element's] plain terms, it contains no jurisdictional nexus to Congress' authority under the Commerce Clause that thus fails under Lopez to be a "jurisdictional element" that has "an explicit connection with or effect on interstate commerce." This textual difference is meaningful . . . .

June 14, 2019 in Cases and Case Materials, Commerce Clause, Congressional Authority, News, Opinion Analysis | Permalink | Comments (0)

Monday, June 10, 2019

Court Says Federal Law Does Not Borrow State Labor Law on Outer Continental Shelf

The Supreme Court ruled today that federal law does not borrow state labor law on the Outer Continental Shelf. The unanimous ruling reverses the Ninth Circuit.

Given the unusual statutory provision at issue, and given the federal enclave status of the OCS, the ruling is quite narrow, based only on the particular statutory language, and does not say anything more general about the Court's preemption or federalism jurisprudence.

The case, Parker Drilling Management Services, Ltd. v. Newton, tested an unusual provision in federal law that applies to the OCS. That provision says that the laws of the adjacent state will apply to the OCS "[t]o the extent that they are applicable and not inconsistent with [federal law]." In other words, federal law applies on the OCS, and federal law borrows state law when it's "applicable and not inconsistent with" federal law.

So what happens when state law is more generous to workers than federal law? Does the state law apply (as it would under ordinary preemption analysis), or does the federal law apply?

A unanimous Supreme Court said that federal law applies. Justice Thomas, writing for the Court, noted first that the OCS is a federal enclave, where only federal law applies. (Remember, under the Act federal law borrows state law as its own.) He said that in that situation, ordinary preemption analysis doesn't apply; instead, the Court needs to determine what the phrase "applicable and not inconsistent" means in a location where the default is that only federal law applies.

Taken together, these provisions convince us that state laws can be "applicable and not inconsistent" with federal law under [the Act] only if federal law does not address the relevant issue. As we have said before, [the Act] makes apparent "that federal law is 'exclusive' in its regulation of [the OCS], and that state law is adopted only as surrogate federal law." [The Act] extends all federal law to the OCS, and instead of also extending state law writ large, it borrows only certain state laws. These laws, in turn, are declared to be federal law and are administered by federal officials. Given the primacy of federal law on the OCS and the limited role of state law, it would make little sense to treat the OCS as a mere extension of the adjacent State, where state law applies unless it conflicts with federal law. That type of pre-emption analysis is applicable only where the overlapping, dual jurisdiction of the Federal and State Governments makes it necessary to decide which law takes precedence. But the OCS is not, and never was, part of a State, so state law has never applies of its own force.

June 10, 2019 in Cases and Case Materials, Congressional Authority, Federalism, News, Opinion Analysis, Preemption | Permalink | Comments (0)

Friday, June 7, 2019

Seventh Circuit Upholds Ballot Access Requirement

The Seventh Circuit this week upheld a signatures requirement to get on the ballot in the Cook County sheriff's race.

The case, Acevedo v. Cook County Officers Electoral Board, arose when Acevedo, a would-be candidate for Cook County sheriff, failed to obtain the necessary signatures of 0.5% of qualified voters in Cook County. Acevedo noted that the signatures formula for Cook County sheriff required him to obtain more signatures (0.5% of qualified voters equals 8,236 signatures) than candidates for statewide offices (who must get only 5,000 signatures). He claimed that the signatures requirement for Cook County therefore violated strict scrutiny (because the lower signatures requirement for statewide offices showed that the government could meet its interest in a less burdensome way).

The Seventh Circuit rejected the claim. Applying the Anderson-Burdick balancing test, the court said that strict scrutiny was far too high a standard, and that the government easily met it:

We have stressed before that "[w]hat is ultimately important is not the absolute or relative number of signatures required by whether a 'reasonably diligent candidate could be expected to be able to meet the requirements and gain a place on the ballot.'" If the burden imposed is slight, Anderson and Burdick make clear that no justification beyond the state's interest in orderly and fair elections is necessary--even if less burdensome alternatives are available.

The ruling ends this challenge and upholds the signatures requirement for Cook County sheriff.

June 7, 2019 in Cases and Case Materials, Elections and Voting, First Amendment, Fourteenth Amendment, News, Opinion Analysis | Permalink | Comments (0)