Wednesday, November 6, 2019
Judge Paul A. Engelmayer (S.D.N.Y.) struck the Trump Administration rule designed to allow healthcare workers to decline services if they have a religious objection to a procedure.
The ruling deals a significant blow to the Administration's efforts to expand "conscience protections" for healthcare workers beyond what federal statutes currently provide.
The court held that the Health and Human Services rule exceed statutory authority, violate the law, and violated the separation of powers and the Spending Clause. The court held that it did not violate the Establishment Clause.
The rule provides, among other things, that a healthcare worker can decline to participate in a procedure when the worker has a religious or moral objection, that the worker's employer can't discriminate against the worker based on the worker's beliefs, and that HHS can revoke all HHS funding to any employer who violates these provisions. HHS purportedly adopted the rule under authority of 30 statutory provisions that recognize the right of an individual or entity to abstain from participation in medical procedures.
The court ruled that the sweeping rule went well beyond HHS's statutory authority, and that the agency therefore exceeded its statutory authority in enacting the rule. It also held that the rule violates Title VII and the Emergency Medical Treatment and Labor Act. And it held that HHS's reasons for enacting the rule were not sufficient (among other things, "HHS's central factual claim of a 'significant increase' of complaints of Conscience Provision violations is flatly untrue."); that HHS's explanation for changing course was insufficient; and that HHS failed to consider the rule's application to medical emergencies and its interplay (and conflict with) Title VII. Finally, the court held that the rule's sweeping definition of "discrimination" "was not a logical outgrowth of the Rule as proposed."
The court also ruled that HHS violated the separation of powers by adopting a rule that allowed the agency to withhold all federal funding, exceeding the agency's authority under federal law. It held that the rule violated the Spending Clause as against state plaintiffs, because the conditions on receipt of federal funds are ambiguous and impermissibly coercive.
However, the court rejected the plaintiffs' argument that the rule violated the Establishment Clause, "because the Rule, on its face, equally recognizes secular ("moral") and religious objections to the covered medical procedures."
The court vacated the entire rule (and declined to sever offending portions, given that the APA violates "are numerous, fundamental, and far-reaching") and held it invalid as to any plaintiff.
November 6, 2019 in Cases and Case Materials, Congressional Authority, Establishment Clause, Executive Authority, News, Opinion Analysis, Separation of Powers, Spending Clause | Permalink | Comments (0)
Monday, November 4, 2019
Second Circuit Rejects President Trump's Effort to Protect Taxes, Establish Categorical Immunity from Criminal Investigation
The Second Circuit today flatly rejected President Trump's attempt to halt a grand jury subpoena for the President's financial records directed at his accounting firm, Mazars, based on a claim of absolute presidential immunity from all criminal processes (including investigations).
The ruling deals a sharp blow to the President and his extraordinary efforts to conceal his taxes. Still, the President is sure to appeal. (Just last month, the President lost in the D.C. Circuit on a similar case, dealing with a House subpoena directed at Mazars.)
Recall that the President filed this federal case to stop a state criminal process, in particular, a state grand jury's subpoena to Mazars for the President's financial records, including his taxes. The district court ruled that the President's suit was barred by Younger abstention and, in the alternative, that the President was not likely to succeed on the merits of his immunity claim.
The Second Circuit reversed on the abstention question, but affirmed on the immunity question. The court noted that the subpoena was directed at Mazars, not President Trump, and therefore did not require the President to do anything that might interfere with his ability to faithfully execute the law. It noted moreover that the subpoena seeks information that has nothing to do with the President's official responsibilities, and is therefore not subject to any claim of executive privilege.
As to the President's claim of absolute privilege against any criminal process (including even an investigation), the court wrote that the scant authority on this question goes only against the President. In particular, it noted that the Court in United States v. Nixon held that executive privilege and separation-of-powers concerns did not preclude the enforcement of a subpoena for presidential records. (As to the separation of powers, the court noted, "That the Court [in Nixon] felt it unnecessary to devote extended discussion to the latter argument strongly suggests that the President may not resist compliance with an otherwise valid subpoena for private and non-privileged materials simply because he is the President.") Moreover, the court noted that even the two OLC memos that the President cited--the 1973 Dixon memo, and the 2000 Moss memo, only go so far as immunity from indictment, not mere investigation.
Although the ruling doesn't mean that we'll see the President's taxes soon--again, the President is sure to appeal, and that'll take some time--it is a sharp blow against his claim of absolute privilege from all criminal process.
Friday, November 1, 2019
The Ninth Circuit affirmed a preliminary injunction against the Department of Justice's effort to clamp down on sanctuary cities by imposing two conditions on recipients of the DOJ-administered Byrne JAG grant program. The ruling keeps in place the injunction against DOJ's "notice" and "access" conditions that are designed to encourage local governments to cooperate with federal immigration authorities to identify unauthorized aliens.
The Ninth Circuit ruling is just the latest in a line halting the implementation of these conditions. We posted most recently on sanctuary litigation here.
The case, City of Los Angeles v. Barr, tests the two conditions that DOJ put on Byrne-JAG grant recipients without specific congressional authorization. The first condition, the "notice" condition, requires a recipient to honor DHS's requests for advance notice of the scheduled release date and time of any detained alien held in a grant recipient's correctional facilities. The second condition, the "access" condition, requires a grant recipient to give federal agents access to correctional facilities to meet with detained aliens.
The court rejected DOJ's arguments that two statutory provisions authorized it to impose the conditions. The first, a provision in the Violence Against Women Act, says that the Assistant AG shall "exercise such other powers and functions as may be vested in the Assistant Attorney General pursuant to this title or by delegation of the Attorney General, including placing such special conditions on all grants, and determining priority purposes for formula grants." The court held that the notice and access conditions were not "special conditions" under the provision, "because they are not conditions triggered by specific characteristics not addressed by established conditions, as was the case for high-risk grantees under [Department regulations]." It held that they weren't "priority purposes," because "[t]he notice and access conditions are not included as purposes of the Byrne JAG award, nor are they purposes of either of its predecessor grant statutes." The court said that the first provision therefore didn't authorize the conditions.
The second provision, a section of the Byrne-JAG statute itself, authorizes the AG to obtain certain information and to require coordination with agencies. The court held that maintenance and reporting requirements applied to programs under the statute, and not to notice of a detained alien. And it held that the coordination requirement applied to "agencies affected by the program to be funded by the Byrne JAG award," not "DHS agents who are not part of a funded program." The court said that the second provision therefore didn't authorize the conditions, either.
Because no statute authorized DOJ to impose the conditions, DOJ lacked authority to impose them, and the court upheld a preliminary injunction halting them.
Tuesday, October 29, 2019
That's the question raised in a lawsuit filed by the United States last week in the Eastern District of California. The U.S. seeks a declaration that the agreement is unconstitutional and a permanent injunction to halt its operation.
The case, U.S. v. California, tests California's cap-and-trade agreement with the provincial government of Quebec, Canada. The federal government argues that the agreement violates the Treaty Clause (prohibiting states from "enter[ing] into any Treaty, Alliance, or Confederation"), the Compact Clause (prohibiting states, without congressional consent, from "enter[ing] into any Agreement or Compact . . . with a foreign Power"), and the Foreign Commerce Clause. It also contends that the agreement impermissibly interferes with the federal government's powers over foreign affairs.
This intrusion complexifies and burdens the United States' task, as a collective of the states and territories, of negotiating competitive international agreements. Moreover, California's actions, as well as the actions of those acting in concert with it, have had the effect of enhancing the political power of that state vis-a-vis the United States. This is due not only to the effect of the Agreement itself but also stems from the fact that the Agreement could encourage other states to enter into similarly illegal arrangements.
The design of the Constitution requires that the federal government be able to speak with one voice on behalf of the United States in matters of foreign affairs. Allowing individual states in the Union to conduct their own foreign policy to advance their own narrow interests is thus anathema to our system of government and, if tolerated, would unlawfully enhance state power at the expense of the United States and undermine the United States' ability to negotiate competitive international agreements.
The D.C. Circuit today stayed last week's district court order that the Justice Department release material from the Mueller Report that was redacted because it was part of the grand jury proceeding. We posted on the district court order here.
This means that DOJ won't release the material to the Committee--at least not until the appeals court says so.
The ruling is not a surprise--it simply maintains the status quo--and says nothing about the merits. The court ordered the Committee to file a response to DOJ's emergency motion by Friday, and DOJ to file any reply by next Tuesday.
Saturday, October 26, 2019
Former National Security Official Sues for Declaration on Congressional Subpoena, Absolute Privilege
Former Deputy National Security Advisor and Acting National Security Advisor Charles Kupperman sued late Friday for a ruling on how he should navigate between a House committee subpoena to testify in the impeachment inquiry and White House instructions not to.
The case is unusual, in that the subject of a subpoena seeks a ruling before making a decision to testify. More commonly, a rebuffed House committee has filed suit to enforce its subpoena.
Kupperman's complaint sets out two questions for the court. First, the complaint asks whether the White House is right in flatly instructing him not to testify based on its now-familiar categorical assertion of absolute executive privilege. On the one hand, he says that the Office of Legal Counsel "has consistently opined that 'the President and his immediate advisers are absolutely immune from testimonial compulsion by a Congressional committee' on matters related to their official duties," and that "[t]he Executive Branch has, with few exceptions, refused to permit close White House advisors to the President to testify before Congress since the 1940s when the Executive Office of the President was created." On the other, he points out that the D.C. District rejected just such an absolute, categorical claim of executive privilege in Committee on the Judiciary v. Miers. But he notes that the court "further concluded that the Counsel to the President was not entitled to absolute or qualified immunity because the inquiry did not 'involve the sensitive topics of national security or foreign affairs.'" He also notes that the ruling was stayed pending appeal, and that it settled before the D.C. Circuit had a chance to rule.
Next, the complaint asks whether the committee had authority under House rules to issue the subpoena. He cites Rule XI, clause 2(m), which grants committees subpoena power "[f]or the purpose of carrying out any of its functions and duties under this rule and rule X . . . ." He notes that the rule doesn't specifically include impeachment as one of the "functions and duties," and that Rule X speaks in terms of legislative functions, not impeachment. But he also points out that the D.C. Circuit recently held in Mazars "that Rule XI, clause 2(m) authorized the House Oversight Committee to issue a subpoena in furtherance of an investigation into alleged misconduct by the President," but that Judge Rao dissented on this point.
Kupperman asked the court for a declaration on how to reconcile the competing demands and for expedited review.
Friday, October 25, 2019
Court Orders DOJ to Release Grand Jury Material from Mueller Report to House,Validates House Impeachment Inquiry
Judge Beryl A. Howell (D.D.C.) today granted the House Judiciary Committee's application for portions of the Mueller Report that were redacted because they were part of a grand jury proceeding. "Consequently, DOJ is ordered to provide promptly, by October 30, 2019, to HJC all portions of the Mueller Report that were redacted pursuant to Rule 6(e) and any underlying transcripts or exhibits referenced in the portions of the Mueller Report that were redacted pursuant to Rule 6(e). HJC is permitted to file further requests articulating its particularized need for additional grand jury information requested in the initial application."
The ruling deals a sharp blow to the Trump Administration and its attempts to protect grand jury material from the Mueller Report from Congress. It's also a clear validation of the legitimacy of the House's impeachment process. It doesn't plow any new legal ground, however. Indeed, the case is only notable because it rebuffs the administration's extraordinary claims.
Still, there's sure to be an appeal.
The case, In re Application of the Committee on the Judiciary, arose when DOJ refused the House Judiciary Committee's request for grand jury material from the Mueller Report. DOJ cited Federal Rule of Criminal Procedure 6(e). That rule generally prohibits disclosure of "a matter occurring before the grand jury." But it has an exception for disclosure "preliminary to or in connection with a judiciary proceeding." The Committee filed its application with the district court under this exception and requested "the grand jury information referenced in or underlying the Mueller Report as well as grand jury information collected by the Special Counsel relating to four categories of information pursuant to Rule 6(e)'s exception . . . ."
The court ruled for the Committee. The court first concluded that a Senate impeachment trial is "a judicial proceeding." The court said that the phrase "judicial proceeding" has a broad meaning; that an impeachment trial is inherently judicial in nature; that historical practice supports this reading; and that D.C. Circuit law "forecloses any conclusion other than that an impeachment trial is a 'judicial proceeding.'"
The court next concluded that the Committee's investigation is "preliminary to" that judicial proceeding. It held that the Committee's "primary purpose is to determine whether to recommend articles of impeachment," and that requiring anything more would result in the court impermissibly intruding on Congress's Article I powers.
Notably, the court emphasized that the Committee's work investigating impeachment is legitimate and constitutionally permissible, and that nothing requires the House to adopt an "impeachment inquiry resolution" to legitimate its work.
Finally, the court surveyed the several reasons why the Committee "has a 'particularized need' for the requested materials,'" including why and how this material may relate to the Ukraine investigation and to any other possible grounds for impeachment.
Thursday, October 24, 2019
The Ninth Circuit this week affirmed a district court's preliminary injunction against agency rules that categorically exempt certain organizations from the Affordable Care Act's contraception requirement.
The ruling is a blow to the administration's efforts to side-step the ACA's contraception requirements for religious groups. We previously posted on the case here.
The case, California v. U.S. Dep't of Health & Human Services, tests HHS's final rules that exempt certain entities from the ACA's contraception-coverage requirement. The court upheld a district court ruling that the final rules likely violated the Administrative Procedure Act.
The ACA provides that group health plans and insurance issuers "shall, at a minimum provide coverage for and shall not impose any cost sharing requirements for . . . with respect to women, such additional preventive care and screenings . . . as provided for in the comprehensive guidelines supported by the Health Resources and Services Administration . . . ." HHS previously exempted group health plans of certain religious employers, like churches. It also had previously provided for an accommodation for certain nonprofits that had a religious objection: those groups merely had to tell HHS that they objected (then HHS would inform the organization's insurer that it had to provide contraceptive care for the organization's employees without any further involvement of the organization). HHS later also exempted certainly closely-held for-profit corporations (after Hobby Lobby) and modified the exemption-trigger to require objecting organizations merely to notify HHS in writing of its objections (after Wheaton College).
But the Trump Administration went a step farther. It issued rules that categorically exempt entities "with sincerely held religious beliefs objecting to contraception or sterilization coverage" and "organizations with sincerely held moral convictions concerning contraceptive coverage." The rules meant that organizations that might previously have sought and received a waiver would be categorically exempt on their own say-so.
The Ninth Circuit ruled that these rules likely violated the APA. In short, the court said that HHS didn't have authority under the ACA to create categorical exemptions:
The statute grants HRSA the limited authority to determine which, among the different types of preventative care, are to be covered. But nothing in the statute permits the agencies to determine exemptions from the requirement. In other words, the statute delegates to HRSA the discretion to determine which types of preventative care are covered, but the statute does not delegate to HRSA or any other agency the discretion to exempt who must meet the obligation.
The court rejected the government's claim that it issued the rules to harmonize the ACA with the Religious Freedom Restoration Act. The court questioned whether the RFRA even gave the government the authority to determine a violation and then act against federal law to effect it. And it went on to say that the accommodation didn't violate the RFRA, anyway. (Recall that the Court dodged this issue in Zubick.)
The dissent argued that the court lacked jurisdiction in light of a nationwide injunction issued by the Eastern District of Pennsylvania. The court responded at length, but acknowledged that it's an open question whether a federal court's nationwide injunction strips other federal courts of jurisdiction in a more limited case.
The Illinois Supreme Court last week upheld the state's revenge-porn law against a First Amendment challenge. The ruling rebuffed an appeal by a criminal defendant charged with violating the law.
The case, People v. Austin, tested Illinois's effort to criminalize revenge porn. The law provides as follows:
(b) A person commits non-consensual dissemination of private sexual images when he or she:
(1) intentionally disseminates an image of another person:
(A) who is at least 18 years of age; and
(B) who is identifiable from the image itself or information displayed in connection with the image; and
(C) who is engaged in a sexual act or whose intimate parts are exposed, in whole or in part; and
(2) obtains the image under circumstances in which a reasonable person would know or understand that the image was to remain private; and
(3) knows or should have known that the person in the image has not consented to the dissemination.
The court first ruled that the law doesn't cover material in any categorical exception to free speech (like incitement, true threats, obscenity, etc.), and it declined to establish a new exception.
It next ruled that the law is a content-neutral restriction on speech: "There is no criminal liability for the dissemination of the very same image obtained and distributed with consent. The manner of the image's acquisition and publication, and not its content, is thus crucial to the illegality of its dissemination." The court went on to hold that the act satisfies intermediate scrutiny, because it serves the state's interest in protecting privacy and "the substantial government interests of protecting Illinois residents from nonconsensual dissemination of private sexual images would be achieved less effectively" without it.
The court rejected arguments that the act was overbroad or vague.
The dissent argued that the act was content-based, because "one must look at the content of the photo to determine whether it falls within the purview of the statute," and that it failed strict scrutiny because it lacked a specific intent element. "Instead, simply viewing an image sent in a text message and showing it to the person next to you could result in felony charges."
Tuesday, October 22, 2019
The Supreme Court on Friday agreed to hear a separation-of-powers challenge to the structure of the Consumer Financial Protection Bureau. The Court granted cert. to determine whether the for-cause removal provision for the head of the CFPB violates the separation of powers. It then ordered the parties to brief whether the for-cause removal provision was severable from the Dodd-Frank Act.
We previously posted on the case, Seila Law LLC v. CFPB, here. Notably, the CFPB itself now joins Seila Law in arguing that the structure is unconstitutional.
The case tests the for-cause removal provision for the head of the CFPB--long a target of opponents of independent agencies within the executive branch. Opponents argue that the for-cause removal provision impermissibly encroaches on the President's authority to execute the law, because it prohibits the President from firing the head of the agency at will.
The Court has long upheld similar protections that create agency independence. But the government argues that those rulings involved multi-member bodies (as in Humphrey's Executor v. U.S.) or "inferior offices" that lack the independent power of the CFPB (as in Morrison v. Olson), so that they don't unduly encroach on the President's authority.
The attack on the structure of the CFPB is just the latest in a long line of challenges that draw on a strong version of the "unitary executive theory," set out most prominently in Justice Scalia's lone dissent in Morrison v. Olson. Justice Scalia's position has gained traction since Morrison, and this case may now make it law.
In a different case dealing with the same question, then-Judge Kavanaugh wrote for a panel of the D.C. Circuit that the CFPB's structure violated the separation of powers. The ruling is a robust endorsement of the unitary executive theory and a roadmap for opponents of the agency's independence.
The severability question means that if the Court strikes the director's for-cause removal provision, it could also overturn the provisions in Dodd-Frank that created the agency in the first place. That could have sweeping effects, even potentially nullifying the agency's prior actions.
The Court hasn't yet scheduled the case for argument.
Thursday, October 17, 2019
The Ninth Circuit ruled today in Walden v. Nevada that a state waives its Eleventh Amendment immunity over any federal claims when it removes a case from state to federal court. The court previously ruled that a state waives immunity over only those federal claims that Congress failed to apply to the states by abrogation when a state removes; today's ruling extends that waiver-by-removal rule to all federal claims.
The case arose when Nevada state employees sued the state for violations of the Fair Labor Standards Act in state court. The state removed the case to federal court and moved to dismiss based on state sovereign immunity.
The Ninth Circuit rejected that claim. The court noted that the Supreme Court ruled in Lapides v. Bd. of Regents of Univ. Sys. of Georgia that a state waives Eleventh Amendment immunity when it removes state law claims for which it waived immunity in state court. It further noted that it (the Ninth Circuit) extended Lapides so that a state waives Eleventh Amendment immunity when it removes federal law claims for which Congress validly abrogated state sovereign immunity. Then it said the same reasoning justifies extending waiver-by-removal to any federal claims (congressional abrogation or not). In so ruling, the Court quoted Lapides:
It would seem anomalous or inconsistent for a State both (1) to invoke federal jurisdiction, thereby contending that the "Judicial power of the United States" extends to the case at hand, and (2) to claim Eleventh Amendment immunity, thereby denying that the "Judicial Power of the United States" extends to the case at hand.
The ruling means that the plaintiffs' FLSA case, now in federal court, can move forward.
Saturday, October 12, 2019
Judge David Briones (W.D. Texas) ruled on Friday that President Trump's effort to reprogram federal funds in the name of a "national emergency" to build a border wall exceeded his authority under the Consolidated Appropriations Act of 2019. The ruling further invites the plaintiffs to file for a preliminary injunction to halt the reprogramming.
The ruling deals a substantial blow to President Trump in his effort to shift around money to pay for his border wall. Still, this isn't the end of this case: it'll surely be appealed.
The case arose when El Paso County and Border Network for Human Rights sued President Trump to halt reprogramming under his national emergency declaration. Upon declaring the emergency, President Trump ordered the relevant secretaries to reprogram $2.5 billion of Defense Department funds appropriated for Support for Counterdrug Activities under 10 U.S.C. Sec. 284, and $3.6 billion of DOD funds appropriated for "military construction projects" under 10 U.S.C. Sec. 2808. The plaintiffs argued, among other things, that the order violated the 2019 CAA. The court agreed.
The court first ruled that the plaintiffs had standing. It wrote that El Paso was the target location for the new wall, that it suffered a reputational injury (in President Trump's statements about how dangerous it is), and that it suffered economic harm--all because of President Trump's order, and which would be redressed by a favorable ruling. It held that BNHR had standing, too, because it spent significant resources to respond to President Trump's actions that would have gone to support its regular activities. The court ruled that the plaintiffs had standing to sue under Section 2808, because the government took steps to fund the construction of a wall.
As to the CAA, the court held that the reprogramming violates the plain terms of the CAA:
the CAA specifically appropriates $1.375 billion for border-wall expenditures and requires those expenditures to be made on "construction . . . in the Rio Grande Valley Sector" alone. Defendants' funding plan, by contrast, will transfer $6.1 billion of funds appropriated for other more general purposes--military construction, under Section 2808, and counterdrug activities, under Section 284. Their plan therefore flouts the cardinal principle that a specific statute controls a general one and violates the CAA.
In addition, the court said that the proclamation violates Section 739 of the CAA, which provides
None of the funds made available in this or any other appropriations Act may be used to increase . . . funding for a program, project, or activity as proposed in the President's budget request for a fiscal year until such proposed change is subsequently enacted in an appropriation Act, or unless such change is made pursuant to the reprogramming or transfer provisions of this or any other appropriations Act.
The court explained: "Section 739 prohibits Defendants' plan to fund the border wall because the plan is barred by that provision's general rule and the plan does not fall within its exception," because neither Section 2808 nor Section 284 is an appropriations act.
Although the ruling grants summary judgment to the plaintiffs on these issues, it does not grant a preliminary injunction. "Defendants have countered that Plaintiffs cannot obtain equitable relief against the President. The Court has requested additional briefing on this issue and will reserve judgment in this regard for a later date."
In light of the Supreme Court's ruling this summer staying a permanent injunction because the government showed that the plaintiffs had no cause of action to challenge a Section 8005 transfer, the ruling says nothing about the government's Section 8005 authority to reprogram funds for Section 284 counterdrug activities. It also says nothing about reprogramming Treasury Forfeiture Funds.
Friday, October 11, 2019
The D.C. Circuit ruled today that the House Committee on Oversight and Reform acted within its powers, and not in violation of the Constitution, when it issued a subpoena to Mazars USA, LLP, for records related to work performed by President Trump and his business entities both before and after he took office.
The ruling deals a sharp blow to President Trump and his efforts to shield his financial records. But the D.C. Circuit probably won't have the last say: this seems destined for the Supreme Court.
The case arose when the Committee subpoenaed Mazars for the records. President Trump sued to stop Mazars from releasing them, and the Justice Department filed an amicus brief on the side of the President.
The court flatly rejected the President's novel claims that the subpoena exceeded the Committee's authority and violated the Constitution. In particular, the court held that the subpoena was not an invalid exercise of law-enforcement (as opposed to legislative) power, because the Committee's explanation for the subpoena on its face stated a valid legislative purpose--to inform "multiple laws and legislative proposals under [the Committee's] jurisdiction." Moreover, the court noted that the House actually has pending legislation related to the subpoena, thus underscoring the legislative character of the subpoena, even though this isn't required.
The court held next that the subpoena has a valid legislative purpose. The court wrote that the subpoena could serve ethics and financial disclosure laws that apply to the President.
The court wrote that the subpoena's reach--seeking information before the President was elected and before he even announced his candidacy--fell within Congress's legislative power, because it could consider legislation requiring a President to disclose financial information going back before a President takes office.
Judge Rao dissented. She argued that the subpoena serves only the Committee's interest in determining "whether the President broke the law"; that the Committee can only take up this kind of law-enforcement function in the context of an impeachment; and that because the subpoena was issued outside of an impeachment proceeding, it is therefore invalid:
The majority breaks new ground when it determines Congress is investigating allegations of illegal conduct against the President, yet nonetheless upholds the subpoena as part of the legislative power. The Committee on Oversight and Reform has consistently maintained that it seeks to determine whether the President broke the law, but it has not invoked Congress's impeachment power to support this subpoena. When Congress seeks information about the President's wrongdoing, it does not matter whether the investigation also has a legislative purpose. Investigations of impeachable offenses simply are not, and never have been, within Congress's legislative power. Throughout history, Congress, the President, and the courts have insisted upon maintaining the separation between the legislative and impeachment powers of the House and recognized the gravity and accountability that follow impeachment. Allowing the Committee to issue this subpoena for legislative purposes would turn Congress into a roving inquisition over a co-equal branch of government.
Monday, October 7, 2019
Judge Victor Marrero (S.D.N.Y.) today dismissed President Trump's lawsuit that sought to halt a state grand jury subpoena issued to Mazars USA for Trump organization financial documents, including the President's tax returns. We posted most recently here.
The ruling deals a blow to President Trump's efforts to protect his tax returns from disclosure, and to halt any state criminal process against him. But it may be temporary: the Second Circuit immediately stayed the ruling pending expedited review; and whatever the Second Circuit says, this case seems destined for the Supreme Court.
The district court ruled that President Trump's suit was barred by Younger abstention, and that his constitutional claim likely failed on the merits.
As to Younger abstention, which requires federal courts to abstain from intervening in pending state court proceedings under certain circumstances, the court said that the grand jury subpoena was part of a pending state criminal proceeding (despite a circuit split on the question), that the state proceeding implicates important state interests, and that the state proceeding affords President Trump plenty of opportunities to raise his constitutional claims. The court rejected the President's claims that the state process was in bad faith or merely designed to harass him, and that the case raised extraordinary circumstances.
As to the underlying merits, which the court addressed "so as to obviate a remand" on President Trump's motion for a preliminary injunction if the Second Circuit overrules the abstention holding, the court flatly rejected the President's claim of absolute presidential immunity from all state criminal processes. The court said that it "cannot square a vision of presidential immunity that would place the President above the law with the text of the Constitution, the historical record, the relevant case law, or even the DOJ Memos on which the President relies most heavily for support." The court, citing Clinton v. Jones, said that the Supreme Court would likely reject the President's absolute, categorical approach to immunity in favor of a functional approach that "take[s] account of various circumstances concerning the appropriateness of a claim of presidential immunity from judicial process relating to a criminal proceeding" and to balance the competing interests in working out the immunity question.
The case now goes to the Second Circuit on an expedited basis. Again: the Second Circuit stayed the district court's ruling, which means that President Trump's federal case challenging the state subpoena is still alive. Whatever happens at the Second Circuit, this case will almost surely go to the Supreme Court.
Wednesday, October 2, 2019
District Court Halts Enforcement of California Law Requiring Presidential Candidates to Release Taxes
Judge Morrison C. England, Jr., (E.D. Cal.) granted President Trump's motion for a preliminary injunction yesterday and halted enforcement of California's new requirement that presidential primary candidates file their income tax returns with the state before gaining a place on the primary ballot.
The ruling puts a temporary stop to California's effort to press President Trump to reveal his tax returns.
The case tests California's requirement that candidates in the California primary election for president file their tax returns with the state before the state will list them on the ballot. Here's the measure:
Notwithstanding any other law, the Secretary of State shall not print the name of a candidate for President of the United States on a primary election ballot, unless the candidate, at least 98 days before the presidential primary election, files with the Secretary of State copies of every income tax return the candidate filed with the Internal Revenue Service in the five most recent taxable years.
California said that it adopted the measure in order to help its voters make an informed choice among candidates in the primary election. But it was pretty clearly a blunt effort to force President Trump to file his tax returns, which the state could then make public.
The court ruled that the requirement likely violated the Article II Qualifications Clause, the First Amendment, and the Equal Protection Clause.
As to Qualifications, the court drew on U.S. Term Limits, Inc. v. Thornton, where the Court struck Arkansas's effort to impose term limits on its members of Congress. The Court in Thornton ruled that the state's term limits impermissibly added a qualification to its members of Congress over and above the minimum qualifications set in the Article I Qualifications Clause. Judge England ruled that the same principle applies to a state's additional qualifications over and above the minimums set in the Article II Qualifications Clause, and that California's requirement amounts to just such an additional qualification.
As to the First Amendment, Judge England held that California's requirement amounts to a "severe restriction" on the right to access the ballot, the right to political association, the right to vote, and the right to express political preferences. The court applied strict scrutiny and held that the requirement failed.
Finally, as to equal protection, Judge England held that the requirement impermissibly treated partisan primary candidates differently than independent candidates (who are not subject to the requirement). "The State lacks any valid interest in providing voters with more information about party-backed candidates than independent candidates, especially when such requirements can lead to the exclusion of only major party candidates on the ballot."
Tuesday, September 24, 2019
New York DA Cyrus Vance, Jr., yesterday filed a motion to dismiss President Trump's federal lawsuit that seeks to shut down the state grand jury proceeding.
Recall that the state grand jury issued a subpoena to Mazurs USA for financial and tax records of a number of New York entities and individuals, including President Trump. President Trump then sued in federal court to halt the state process, arguing that he is absolutely immune from any criminal process. (His argument wasn't limited to just state criminal process or any criminal prosecution; instead, he argued that he is absolutely immune from any criminal process.)
Vance argues that 28 U.S.C. sec. 2283 and Younger abstention compel the federal court to dismiss the case. Section 2283 provides that "[a] court of the United States may not grant an injunction to stay proceedings in a State court except as expressly authorized by Act of Congress, or where necessary in aid of its jurisdiction, or to protect or effectuate its judgments." Similarly, Younger abstention requires a federal court to abstain from interfering in certain state-court proceedings.
Vance argues that the federal court should abstain from ruling on President Trump's constitutional claims until the state courts have a chance to do so. He says that there's no "special circumstances suggesting bad faith, harassment or irreparable injury that is both serious and immediate" that would justify an exception to the general abstention principle.
Moreover, Vance argues that President Trump failed to show irreparable harm and is wrong on the merits. As to harm, Vance says that subpoenaed records would be destroyed if the courts later rule the Mazurs subpoena invalid, and that the President's claims that he'd be distracted by the state criminal process is belied by the President's handling of other criminal processes. As to the merits--the President's sweeping claim of absolute immunity from any criminal process--Vance writes, "As the President's own papers make plain, no authority exists to support such a sweeping claim of immunity, which makes a showing of likelihood of success on the merits impossible."
Friday, September 20, 2019
President Trump filed suit yesterday to halt the Manhattan D.A.'s criminal investigation into the President's hush-money payments in the run-up to the 2016 election. The President argues that he's absolutely immune from any criminal process, including criminal investigation.
Here's why (quoting the 1973 OLC memo):
"To wound [the President] by a criminal proceeding is to hamstring the operation of the whole governmental apparatus, both in foreign and domestic affairs." The President thus cannot be subject to criminal process, for any conduct of any kind, while he is serving as President.
The President also makes a federalism claim--that it would violate federal supremacy to permit the Manhattan D.A. to saddle the President with a criminal investigation.
The President's argument extends the view of the OLC that the President is immune to criminal prosecution while in office. (Here's the 1973 OLC memo drawing that conclusion; here's the 2000 OLC memo, same.) At the same time, it leaves open the possibility that a President could be subject to criminal investigation (and prosecution) after leaving office. (For that reason, it argues that it's not claiming that "the President is above the law.)
Thursday, September 19, 2019
The Trump Administration urged the Court this week to take up a case that challenges the political independence of the head of the Consumer Financial Protection Bureau. If the Court takes the case, it would likely deal one more significant blow to agency independence--or to abolish agency independence altogether.
Congress created the CFPB as part of the Dodd-Frank Act to regulate consumer financial products and services. Under the Act, the head of the CFPB is appointed by the President, with Senate confirmation, for a five-year term and removable by the President only for "inefficiency, neglect of duty, or malfeasance in office." The removal provision is designed to ensure that the CFPB head isn't subject to the political whims of the White House.
In a brief in support of Court review this week, the administration argues that it violates the separation of powers. In particular, the administration claims that the termination provision encroaches too far into the President's authority to supervise the executive branch. It distinguishes Humphrey's Executor by arguing that, unlike the CFPB, the independent agency in that case, the FTC, involved a multi-member board with staggered appointment terms, and with quasi-legislative and quasi-judicial authority. It distinguishes Morrison v. Olson by arguing that, unlike the head of the CFPB, the independent office in that case, the Independent Counsel, was an inferior officer. By distinguishing these cases, the administration tries to thread the needle and strike CFPB independence while keeping multi-member agency and inferior officer independence on the books.
But if the Court can't see its way to navigate these waters, the administration has another suggestion: overrule Humphrey's Executor and Morrison v. Olson. Footnote 2 of the brief reads:
If this Court were to conclude that Humphrey's Executor or Morrison requires upholding the removal restriction, it should consider whether those cases should be overruled in part or in whole. That issue is fairly encompassed in the question presented.
If so, the whole idea of agency independence could go away.
Friday, September 13, 2019
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.
Tuesday, September 10, 2019
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.