Wednesday, May 22, 2019
The State of New York and a host of other states and cities yesterday filed suit in the Southern District of New York to halt the implementation of President Trump's "conscience protection" regulations for health-care providers.
We posted on the regs here. In short, they require health-care providers and state and local recipients of certain federal funds to permit employees to opt out of providing health services if they have a religious objection to those services.
New York's lawsuit follows San Francisco's, filed earlier this month.
The plaintiffs in the New York case allege that the regs exceed statutory authority, violate federal law, are arbitrary and capricious, and violate the Spending Clause, the separation of powers, and the Establishment Clause.
Plaintiffs focus on the expansive definitions in the new regs that sweep beyond the administration's statutory authority, and HHS's ability under the regs to cut off vast amounts of federal funding to states and local governments who do not comply with the "conscience protections." They allege that they'll be harmed in their ability to enforce their own laws (which, among other things, require health-care providers to provide certain services, irrespective of religious beliefs) and in their receipt of federal funds.
In a bit of what-goes-around-comes-around, the plaintiffs draw on the Court's ruling in NFIB v. Sebelius--the Medicaid expansion portion of the ruling--to argue that the sheer amount of threatened federal funds under the new regs turns the condition on federal funding for state and local governments (compliance with the "conscience protections") from pressure into compulsion, in violation of federalism principles. They also contend that the conditions are vague, and that the administration impermissibly imposed them without prior congressional action in violation of the separation of powers. (This latter point is based on HHS's apparent ability to withhold funds not authorized for withholding under existing federal law.)
The Supreme Court ruled on Monday that a drug manufacturer, in order to escape state-tort failure-to-warn liability, must show that "it fully informed the FDA of the justifications for the warning required by state law and that the FDA, in turn, informed the drug manufacturer that the FDA would not approve changing the drug's label to include that warning." The Court also ruled that this was a legal question for a judge, not an evidentiary (factual) question for the jury.
The ruling clarifies the standard that the Court set for "impossibility" preemption cases ten years ago in Wyeth v. Levine. In that case, the Court held that in order to show that a drug manufacturer could not simultaneously comply with federal and state requirements on drug warning labels--and that federal law therefore preempted state law--the manufacturer had to show "clear evidence" that the FDA would not have approved a change to the drug label (even as state law required it). Lower courts had trouble with the "clear evidence" standard--what it meant, and who (judge or jury) should apply it. Monday's case, Merck Sharp & Dohme Corp. v. Albrecht, clarified things a little.
The issue pits the FDA's authority to approve the contents of drug-label warnings, or to say that a manufacturer cannot include certain warnings, against state tort standards that require warnings in order to avoid failure-to-warn liability. As the Court explained:
The central issue in this case concerns federal preemption, which as relevant here, takes place when it is "impossible for a private party to comply with both state and federal requirements." The state law that we consider is state common law or state statutes that require drug manufacturers to warn drug consumers of the risks associated with drugs. The federal law that we consider is the statutory and regulatory scheme through which the FDA regulates the information that appears on brand-name prescription drug labels.
The Court in Wyeth v. Levine held that a manufacturer had to show "clear evidence" that the FDA would not have approved a warning in order to demonstrate that it couldn't simultaneously comply with federal law (rejecting a warning) and state law (requiring it). The Court on Monday elaborated:
In a case like Wyeth, showing that federal law prohibited the drug manufacturer from adding a warning that would satisfy state law requires the drug manufacturer to show that it fully informed the FDA of the justifications for the warning required by state law and that the FDA, in turn, informed the drug manufacturer that the FDA would not approve changing the drug's label to include that warning.
But the Court said that this isn't a traditional evidentiary or factual standard. Instead, it's a legal question, and it goes to the judge, not the jury. At bottom, then, a judge has to decide "whether the relevant federal and state laws 'irreconcilably conflic[t]."
This could be tough for manufacturers, given FDA labeling options. Under FDA regs there are at least two ways that a manufacturer might add a warning: through the FDA approval process; or through the "changes being effected" ("CBE") process, which allows a manufacturer unilaterally to strengthen a warning when there is "newly acquired information" about the drug (subject to later FDA review and approval). Moreover, the Court has been clear: the manufacturer bears ultimate responsibility for appropriate and sufficient warnings.
In this case, Merck went back and forth with the FDA on adding a warning about atypical femoral fracture to its label for Fosamax, an oral drug that slows the breakdown of old bone cells and thus helps postmenopausal women avoid osteoporotic fractures. Merck added a "precaution" about "low-energy femoral shaft fracture" through the FDA-approval process, but the FDA rejected Merck's request to cross-reference a longer discussion that focused on "the risk of stress fractures associated with Fosamax." (The FDA explained that "[i]dentification of 'stress fractures' may not be clearly related to the atypical subtrochanteric fractures that have been reported in the literature.") Merck added that change itself through the CBE process, but made no changes to the "Precautions" section of the label--the section at issue in this case.
On remand, then, the judge will have to apply the refined Wyeth v. Levine standard to these facts.
Justice Breyer wrote the majority opinion, joined by Justices Ginsburg, Sotomayor, Kagan, and Gorsuch.
Justice Thomas concurred, expressing his "skeptic[ism] that 'physical impossibility' is a proper test for deciding whether a direct conflict exists between federal and state law." Instead, he would look to a "logical contradiction" between the two.
Justice Alito, joined by Chief Justice Roberts and Justice Kavanaugh, concurred in the judgment only. He wrote to emphasize that Congress enacted legislation after Wyeth v. Levine that may bear on the preemption analysis, and to argue that the facts are somewhat more complicated than the majority opinion reflects. (Justice Alito dissented in Wyeth v. Levine. He was joined by Chief Justice Roberts and Justice Scalia.)
Monday, May 20, 2019
Judge Amit Mehta (D.D.C.) rejected President Trump's effort to block a congressional subpoena directed to his accountant for his financial records. Judge Mehta also declined to stay his ruling pending appeal.
Unless President Trump can get immediate relief from the D.C. Circuit, the ruling means that his accountant, Mazars USA LLP, will have to turn over his financial records and related documents of President Trump and his business entities dating back to 2011.
The ruling is a significant defeat for the President, although it's sure to be appealed. In addition to dealing a blow to the President in this case, the ruling sets a standard for the President's more general complaint--lodged in each of his challenges to congressional oversight--that the congressional request lacks a "legitimate legislative purpose." The court's deferential, flexible approach to "legitimate legislative oversight" doesn't bode well for the President in these other challenges.
The case, Trump v. Committee on Oversight and Reform of the U.S. House of Representatives, arose when President Trump sued the Committee to halt its subpoena of financial records from Mazars, some of which dated back before his election. The court today ruled definitively in favor of the Committee.
The court ruled that the Committee asserted "facially valid legislative purposes," and thus had the power to subpoena Mazars:
Without a resolution as a point of reference, the logical starting point for identifying the purpose of the Mazars subpoena is the memorandum to Members of the Oversight Committee written by Chairman Cummings on April 12, 2019. Chairman Cummings penned that Memorandum in anticipation of issuing the subpoena. It is therefore the best evidence of the Committee's purpose. The Memorandum lists four areas of investigation: (1) "whether the President may have engaged in illegal conduct before and during his tenure in office," (2) "whether he has undisclosed conflicts of interest that may impair his ability to make impartial policy decisions," (3) "whether he is complying with the Emoluments Clauses of the Constitution," and (4) "whether he has accurately reported his finances to the Office of Government Ethics and other federal entities." Each of these is a subject "on which legislation could be had."
The court rejected the President's arguments (1) that the Committee is usurping executive and judicial functions ("Just because a congressional investigation has the potential to reveal law violations does not mean such investigation exceeds the legislative function."); (2) that the Committee is improperly investigating private affairs (because the subpoena is valid so long as it is related to a valid legislative purpose, which, as described above, it is); and (3) that the records request isn't "pertinent" (because it is relevant, and serves potential legislation, and because it's not the court's role to say so, anyway).
The court went on to reject the President's motion for a stay pending appeal, ruling, among other things, that he lacked a likelihood of success on the merits of his challenge.
Ninth Circuit Upholds Campaign Contribution, Firearms Ban for Foreign Nationals, Nonimmigrant Visa Holders
The Ninth Circuit last week upheld federal bans on campaign contributions and firearms possession by foreign nationals and nonimmigrant visa holders, respectively, against First and Second Amendment challenges. The ruling keeps the bans in place.
The case tested the federal ban on campaign contributions by foreign nationals. The court held first that Congress had authority impose the ban:
The federal government has the "inherent power as sovereign to control and conduct relations with foreign nations." . . . Thus, where, as here, Congress has made a judgment on a matter of foreign affairs and national security by barring foreign nationals from contributing to our election processes, it retains a broad power to legislate. . . . A prohibition on campaign donations and contributions by foreign nationals is necessary and proper to the exercise of the immigration and foreign relations powers.
The court held next that the ban didn't violate the First Amendment. The court relied on the Court's summary affirmance in Bluman v. FEC, writing that "although '[t]he precedential effect of a summary affirmance extends no further than the precise issues presented and necessarily decided by those actions,' Blumen did decide the precise issue present in this case."
As to the ban on firearm possession by nonimmigrant visa holders, the court acknowledged that there's some ambiguity about whether the law "burdens conduct protected by the Second Amendment" (the first step in the two-step Second Amendment analysis):
Some courts have read the historical right as one afforded only to citizens or those involved in the political community, while others have focused instead on an individual's connection to the United States. Nonimmigrant aliens, like those unlawfully present, are neither citizens nor members of the political community.
Still, the court assumed that the Second Amendment applied and moved to the second step, application of intermediate scrutiny, and upheld the ban:
The government's interest in this case is straightforward. The government's interest is . . . crime control and maintaining public safety. . . .
Further, the statute reasonably serves this important interest. It carves out exceptions for visa holders who are less likely to threaten public safety. . . . We find this tailoring sufficient.
Monday, May 13, 2019
The Supreme Court ruled today in Franchise Tax Board v. Hyatt that states enjoy sovereign immunity from private suits in the courts of other states. The sharply divided ruling (5-4, along conventional ideological lines) overruled Nevada v. Hall and significantly extends state sovereign immunity.
The ruling means that states now cannot be sued by private parties in the courts of other states. It's a boon for the states--and a blow to anyone who wants to sue a state in another state's courts--although, as Justice Breyer noted in dissent, states routinely granted immunity to sister states, anyway--but as a matter of comity. Today's ruling constitutionalizes that practice.
The Court's opinion looks to "our constitutional structure" and the "historical evidence showing a widespread preratification understanding that States retained immunity from private suits, both in their own courts and in other courts." It is devoid of textual support--a curiosity, given the majority justices' otherwise focus on text and originalism as principal sources of constitutional construction.
Justice Thomas wrote for the Court, joined by Chief Justice Roberts and Justices Alito, Gorsuch, and Kavanaugh. Justice Thomas wrote that "Hall's determination that the Constitution does not contemplate sovereign immunity for each State in a sister State's courts misreads the historical record and misapprehends the 'implicit ordering of relationships within the federal system necessary to make the Constitution a workable governing charter and to give each provision within that document the full effect intended by the Framers.'" He said that "[i]n short, at the time of the founding, it was well settled that States were immune under both the common law and the law of nations," and that "[t]he founding generation thus took as given that States could not be haled involuntarily before each other's courts." He wrote that the Eleventh Amendment (though not directly applicable to this issue) reaffirmed the earlier understanding that States enjoy immunity.
Justice Breyer dissented, joined by Justices Ginsburg, Kagan, and Sotomayor. Justice Breyer noted that preratification immunity of states was based on comity (that is, grace), not on legal obligation, and that states therefore could withdraw their recognition of another state's immunity "upon notice at any time, without just offense" (Quoting Justice Story in The Santissima Trinidad.) He wrote that Hall correctly concluded that ratification of the Constitution did not alter this comity-based immunity "in any relevant respect." Neither the Eleventh Amendment nor the Full Faith and Credit Clause (nor anything else in the text) required states to grant each other sovereign immunity, and "nothing 'implicit in the Constitution' treats States differently in respect to immunity than international law treats sovereign nations."
At any rate, I can find nothing in the 'plan of the Convention' or elsewhere to suggest that the Constitution converted what had been the customary practice of extending immunity by consent into an absolute federal requirement that no State could withdraw. None of the majority's arguments indicates that the Constitution accomplishes any such transformation.
Justice Breyer also argued that "stare decisis requires us to follow Hall, not overrule it."
Tuesday, May 7, 2019
The Ninth Circuit ruled in CFPB v. Seila Law LLC that the Consumer Financial Protection Bureau--with its single head, removable only for cause--did not violate the separation of powers. The case aligns with the en banc D.C. Circuit's ruling in PHH Corporation v. CFPB.
The CFPB has been under constant constitutional attack as a legislative encroachment upon executive authority. (If the president can't fire the head of the CFPB at will, the argument goes, then the head of the CFPB encroaches on the president's (absolute, exclusive, unitary) power to execute the law.) The challenges also take aim at Morrison v. Olson. The Court in that case upheld the independent counsel law against a similar separation-of-power challenge. The case has long been a thorn in the side of unitary executive theorists, with many now arguing that Justice Scalia, the lone dissenter in the case, got it right. Despite the attacks, Morrison v. Olson is still good law.
The court in Seila Law said that the CFPB question is resolved by Humphrey's Executor v. United States and Morrison v. Olson. The court explained that Humphrey's Executor validated a "for cause" removal provision for members of the Federal Trade Commission--"an agency similar in character to the CFPB"--because "the agency exercised mostly quasi-legislative and quasi-judicial power, rather than executive powers."
The Court reasoned that it was permissible for Congress to decide, 'in creating quasi-legislative or quasi-judicial agencies, to require them to act in discharge of their duties independently of executive control.' The for-cause removal restriction at issue there, the Court concluded, was a permissible means of ensuring that the FTC's Commissioners would 'maintain an attitude of independence' from the President's control.
So too with the CFPB:
Like the FTC, the CFPB exercises quasi-legislative and quasi-judicial powers, and Congress could therefore seek to ensure that the agency discharges those responsibilities independently of the President's will. In addition, as the PHH Corp. majority noted, the CFPB acts in part as a financial regulator, a role that has historically been viewed as calling for a measure of independence from Executive Branch control.
The court rejected the argument that the CFPB has more executive power than the FTC in Humphrey's Executor and therefore is a greater intrusion into the president's executive authority. The court said that the Supreme Court has since validated other offices with for-cause removal that have similar executive power (in Morrison and Free Enterprise Fund v. PCAOB).
The court also rejected the argument that the CFPB's single head distinguishes it from the multi-member commission at issue in Humphrey's Executor.
[T]he Supreme Court's decision in Humphrey's Executor did not appear to turn on the fact that the FTC was headed by five Commissioners rather than a single individual. . . . And the Court's subsequent decision in Morrison seems to preclude drawing a constitutional distinction between multi-member and single-individual leadership structures, since the Court in that case upheld a for-cause removal restriction for a prosecutorial entity headed by a single independent counsel.
Monday, May 6, 2019
Judge Emmett G. Sullivan (D.D.C.) ruled last week that congressional members' case against President Trump for violations of the Foreign Emoluments Clause can go forward. The ruling rejects the president's motion to dismiss, and paves the way for declaratory and injunctive relief against the president.
The ruling is not final; it only allows the case to move forward. But given the language and conclusions in this ruling, and in an earlier one that the members had standing to sue, it seems all but inevitable that the court will rule against the president on the merits.
The case involves the members' claim that the president violated the Foreign Emoluments Clause after he failed to seek and obtain the consent of Congress for accepting payments from foreign governments derived from real estate holdings; intellectual property rights from China; payments for hotel rooms and events from foreign diplomats and foreign lobbing groups; licensing fees from foreign governments for "The Apprentice"; and regulatory benefits from foreign governments. Judge Sullivan previously ruled that the members had standing.
The court rejected the president's argument that the Clause "applies only to the receipt of compensation for services rendered by an official in an official capacity or in an employment (or equivalent) relationship with a foreign government, and to the receipt of honor and gifts by an office-holder from a foreign government." (Two examples, according to the president: (1) "a federal official would receive an Emolument if he or she was paid by a foreign government to take certain official actions"; and (2) "an Emolument would  be received if an official became an employee or entered an employment-like relationship with the foreign government, such as if a federal government lawyer provided legal advice and services to a paying foreign power.") The court surveyed the original understanding, the plain text, the history, the interpretation at the adoption, the purpose of the Clause, and Executive Branch practice and concluded that the Clause was much broader than what the president argued. Judge Sullivan concluded that the "plaintiffs have stated a claim against the President for allegedly violating the Foreign Emoluments Clause."
The court also rejected the president's argument that it can't create an implied cause of action under the Foreign Emoluments Clause:
Here, accepting the allegations in the Amended Complaint as true, which the Court must at this junction, the President is accepting prohibited foreign emoluments without seeking congressional consent, thereby defeating the purpose of the Clause to guard against even the possibility of "corruption and foreign influence." Exercising the Court's equitable discretion here is therefore "not in derogation of the separation of powers, but to maintain their proper balance."
Finally, the court ruled that the plaintiffs' requested injunctive relief didn't violate the separation of powers. It said that it had authority to enjoin the president in matters involving an exercise of the president's "ministerial" duties, and that getting congressional approval was "ministerial."
The Trump Administration reversed its earlier position and argued before the Fifth Circuit last week that the entire Affordable Care Act must fall. According to the administration, that's because (1) the individual mandate is now unconstitutional and (2) the rest of the Act is inseparable from it and therefore must also fall.
The move was expected. With it, the administration now supports the district court's sweeping ruling that struck the entire Act.
The administration argues first that the individual plaintiffs have standing to lodge this challenge. The administration claims that these "individual plaintiffs are directly subject to the individual mandate and have established concrete financial injuries from it." It argues that it doesn't matter that there's now no means of enforcing the mandate (after Congress set the tax penalty at $0), because the plaintiffs have been harmed by higher insurance prices and fewer insurance choices resulting from the (inseverable) guaranteed-issue and community-rating provisions.
The administration goes on to argue that the mandate is now unconstitutional, because the tax penalty is set at $0. The administration claims that the $0 tax penalty transforms the mandate from a congressional action based on its taxing authority (held valid in NFIB) to a congressional action based on its Commerce Clause authority (held invalid under NFIB). As a result, the administration claims that the mandate is unconstitutional.
Finally, the administration claims that all other provisions of the Affordable Care Act are inseverable from the mandate, and therefore must fall, too. The administration points to congressional intent and Court rulings that the guaranteed-issue and community-rating provisions are tied up with the individual mandate; and it argues that all other ACA provisions are, too, because their operation would fundamentally change from the ways that Congress intended when the mandate and the guaranteed-issue and community-rating provisions fall.
The administration's position, if accepted by the Fifth Circuit, would mean that the entire ACA goes away, including the individual mandate; the guaranteed-issue and community-rating provisions; and the health-care exchanges, coverage limits, requirements to cover dependent children, and restrictions on high-cost insurance plans.
Friday, May 3, 2019
The First Circuit ruled that the state of Massachusetts has standing to sue the Trump administration to halt implementation of its rules establishing religious and moral exemptions to the Affordable Care Act's "contraception mandate."
Those rules allow covered employers to get an exemption from the ACA's requirement that employers provide certain contraceptive services.
The mandate is already subject to nationwide injunctions from other cases (in which the courts have also found valid standing for challenging states; we posted most recently here.) This is just the latest case to move forward.
The court said that Massachusetts sufficiently demonstrated a fiscal harm. Here's why: (1) the state demonstrated that some employers in the state are likely to use the exemptions and drop employees from contraception coverage; (2) the state demonstrated that at least some of those employees are likely to turn to the state for contraception and related services; and (3) this "cause and effect" chain is based on "probable market behavior."
The court also ruled that the state showed causation and redressability--the former for the reasons above; the latter because halting the exemptions would also halt this chain of causation.
The ruling is only preliminary. It only allows the case to move forward on the merits. But as we said: the rules are already subject to nationwide injunctions, and this case won't directly affect those injunctions.
Monday, April 22, 2019
President Trump filed suit today to block a House committee subpoena to Trump's accountant, Mazars USA, LLP, for Trump's financial records. The move is a response to House Oversight and Reform Committee Chair Elijah Cummings's April 12 subpoena for records from 2011 to 2018.
The memo supporting the subpoena claims that "[t]he Committee has full authority to investigate whether the President may have engaged in illegal conduct before and during his tenure in office, to determine whether he has undisclosed conflicts of interest that may impair his ability to make impartial policy decisions, to assess whether he is complying with the Emoluments Clause of the Constitution, and to review whether he has accurately reported his finances to the Office of Government Ethics and other federal entities."
President Trump argues in the filing that the subpoena exceeds the Committee's authority, because it is not in furtherance of a "legitimate legislative purpose"; that it violates the separation of powers by seeking to enforce the law, not legislate; and that it's just part of a larger House effort to investigate "anyone with even the most tangential connection to the President" in order to embarrass him. He notes that the time-period covered by the subpoena includes time when he was not yet in office.
In support of his claims, Tump's filing cites Eastland v. U.S. Servicemen's Fund. That's a little surprising, given the deference to Congress that oozes throughout that ruling. Recall that Eastland tested a congressional committee's subpoena of a bank for financial records of a private non-profit, U.S. Servicemen's Fund, that "further[ed] the welfare of persons who have served or are presently serving in the military." The Court ruled that the subpoena was a valid exercise of congressional authority because it fell within the "sphere of legitimate legislative activity," that the Speech and Debate Clause protected against the suit in order to preserve "the integrity of the legislative process by insuring the independence of individual legislators," and that the purposes behind the subpoena didn't matter. Moreover, the U.S. Servicemen's Fund challenged the subpoena under the First Amendment, not just under the separation of powers. The Court said that this challenge "ignores the absolute nature of the speech or debate protection."
Applying well established and deferential standards for congressional investigations and subpoenas--and in particular the Eastland case--to Cummings's subpoena, it's hard to see how Trump wins, at least on his arguments. But winning on the merits may not be the (only) thing that Trump is trying to do. With this move, the administration signals (again) that it's going to fight tooth and nail to resist House Democrats' efforts at oversight, tie them up in court, and even try to run the clock.
Wednesday, April 17, 2019
The Fourth Circuit ruled today that a Rastafarian prisoner in North Carolina couldn't show that prison officials denied his religious-exercise rights when they rejected his request to celebrate Rastafarian holy days through communal feasts and gatherings.
The case, Wright v. Lassiter, arose when a Rastafarian prisoner asked for communal feasts as part of his religious practice. When officials declined, he sued, arguing that officials violated his free-exercise rights under RLUIPA and the Free Exercise Clause.
But according to the court there was one problem: The plaintiff was the only Rastafarian, and the only prisoner who would attend the communal feasts and gatherings, in the prison. This meant that the officials didn't cause or impose a substantial burden on his religious exercise (the trigger for both RLUIPA and free exercise claims); instead, the absence of any other Rastafarian did:
Wright's causation problem stems from the fact that he has requested communal gatherings and feasts. There is no such thing as a community of one, and Wright agreed at oral argument tha the was not seeking a feast for himself alone. He therefore had to show that, but for the policies that allegedly prohibit the requested holiday gatherings, other inmates would join in the gatherings. To put it in the negative, if other inmates would not join in his gatherings, then the prison's restrictive policies would not be a factual cause of the burden he claims to have experienced.
Absent causation, the court said, it didn't even need to evaluate under strict scrutiny (under RLUIPA) or rational basis review (under the Free Exercise Clause).
The Seventh Circuit last week rebuffed a challenge to Illinois's law that prohibits residents of states that lack substantially similar licensing standards to even apply for an Illinois concealed-carry license. The ruling keeps Illinois's law on the books. (This is the second time the court ruled on the issue, the same way.)
The case, Culp v. Raoul, involved Second Amendment and related challenges to the reciprocal feature of Illinois's concealed-carry law. Here's how it works:
Illinois residents can apply for and receive a concealed-carry license upon a showing that the applicant isn't a public danger and, for the last five years, hasn't been a patient in a mental hospital, hasn't been convicted of certain crimes, and hasn't participated in a residential or court-ordered drug or alcohol treatment program. The state engages in an extensive background check of each applicant, and a daily check against the Illinois Criminal History Record Inquiry and the Department of Human Service's mental health system.
But for out-of-staters, the law only permits residents of states with substantially similar licensing requirements to apply for an Illinois concealed-carry license. The reason: Illinois authorities don't have access to criminal and mental health records of other states, so can't do the same kind of background check of their residents. At last count, there were just four such states; those states' residents can apply. Residents of all other states can't even apply for an Illinois concealed-carry license.
Residents of non-substantially-similar states sued, arguing that the law violated the Second Amendment, equal protection, and Article IV privileges and immunities. The court rejected those claims.
As to the Second Amendment, the court said that the law permissibly restricted out-of-staters' Second Amedment rights based on an "important and substantial" reason, enforcement of the criminal-history and mental-health standards, and that while it wasn't a perfect fit, it was close enough for intermediate scrutiny:
And the absence of historical support for a broad, unfettered right to carry a gun in public brings with it a legal consequence: the Second Amendment allows Illinois, in the name of important and substantial public-safety interests, to restrict the public carrying of firearms by those most likely to misuse them.
As to equal protection, the court noted that there's no discrimination against out-of-staters, because "Illinois's licensing standards are identical for all applicants--residents and non-residents the same." The court said that any discrimination between different states' non-residents was justified, because "Illinois has demonstrated that the substantial-similarity requirement relates directly to the State's important interest in promoting public safety by ensuring the ongoing eligibility of who carries a firearm in public. Intermediate scrutiny requires no more."
As to privileges and immunities, the court said concealed carry isn't a protected economic interest, and "we are equally unaware of a decision holding that a privilege of citizenship includes a right to engage in the public carry of a firearm, or, even more specifically, the right to carry a concealed firearm in another state." Moreover, the Clause "does not compel Illinois to afford nonresidents firearm privileges on terms more favorable than afforded to its own citizens."
The court noted that non-residents can still carry and use their firearms in the state. Just not concealed carry.
Judge Manion dissented, arguing that the law was way too rough a cut (both overinclusive and underinclusive) to meet the state's interests. "Illinois has utterly failed to show that banning the residents of an overwhelming majority of the country from even applying for a license is a 'close fit' to its goal."
Wednesday, April 10, 2019
Judge Reggie B. Walton (D.D.C.) ruled that plaintiffs lacked standing to challenge federal regulations that specified a process for certification of state capital counsel in post-conviction proceedings. The ruling means that the regs stay on the books, unless and until a plaintiff who can demonstrate a concrete harm brings a challenge.
Judge Walton's ruling follows a 2016 Ninth Circuit ruling by similar plaintiffs against the same regs.
The case tests DOJ's 2013 regs to certify state's mechanism for providing counsel to indigent prisoners in state postconviction proceedings. Under the Antiterrorism and Effective Death Penalty Act of 1996, if a state provides a mechanism for counsel, and gets it certified by DOJ, then (1) the capital prisoner gets an automatic stay from execution while postconviction and federal habeas proceedings are pending, (2) the statute of limitations for filing a federal habeas petition is shortened from one year to six months from the date of final judgment of the state courts on direct appeal, and (3) federal courts have to give priority status to the habeas case and resolve it within time periods set by statute.
DOJ implemented regs in 2013 to set standards and a process for DOJ certification of a state mechanism. (Again, certification would trigger the three things above, including the compressed time to file a federal habeas petition.) The regs allow the AG to "determine the date on which the state established its mechanism." And they include a retroactivity provision: "The certification is effective as to the date the Attorney General finds the state established its adequate mechanism; as this date can be in the past, a certification decision may be applied retroactively."
Under the plain language of AEDPA and the regs, the AG's determination of the certification date--especially a retroactive determination--could throw a serious curve ball at capital attorneys and prisoners in the postconviction pipeline, by suddenly (or even retroactively) shortening their deadline. Even without formal certification (yet), attorneys that represent capital prisoners in postconviction cases have to adjust their practices in accepting new clients.
So when Texas applied for certification, but before it received certification, the Texas Defender Service and individual prisoners sued to halt and set aside the regs. But the court dismissed the case for lack of standing, and lack of ripeness.
Applying Havens Realty Corp. v. Coleman, the court held that
because "TDS's mission is to establish a fair and just criminal justice system in Texas" and a significant aspect of TDS's work includes "represent[ing] death-sentenced prisoners in postconviction proceedings in federal court," the 2013 Regulations--particularly the provision allowing for the potential retroactive application of certification--is "'at loggerheads' with [TDS's] mission-driven activities."
But "TDS's position that it has been 'forced to expend substantial resources to prepare its comments [to Texas's petition]' and that its staff 'divert[ed] their attention from their ordinary responsibilities,' fails to satisfy the second prong of injury-in-fact under Havens because TDS has not shown that preparing comments to advocate against Texas's certification was an 'operational cost beyond those normally expended to carry out its advocacy mission.'"
As to the individual plaintiffs, the court held that the 2013 regs weren't aimed at them, and that their rights therefore could only "be affected indirectly, if the sentencing state requests certification and if the Attorney General finds that the state's capital-counsel mechanism comports with" the Act and regs. "The 2013 Regulations therefore do not have the coercive impact necessary to confer standing on the individual plaintiffs to bring their preenforcement challenge to the 2013 Regulations."
The court also ruled that the plaintiffs' claims weren't ripe for review.
The D.C. Circuit ruled that a federal prisoner's civil rights claims didn't become moot simply because he was transferred to another prison. The ruling goes against the general principle that a prisoner's "transfer or release from a prison moots any claim he might have had for equitable relief arising out of the conditions of confinement in that prison." According to the D.C. Circuit, that's because this prisoner alleged that he had been subject to the practices in different facilities, and because he alleged a policy or practice of violating regulations that would apply to him in any facility.
The case, Reid v. Hurwitz, arose when federal prisoner Gordon Reid alleged that federal prison officials failed to deliver his magazine subscriptions and deprived him of outside exercise during his repeated stays in the special housing unit, and deprived him of meaningful access to administrative remedies. Importantly, he alleged that with each violation, prison officials cited "BOP policy." Reid sought declaratory, injunctive, and mandamus relief.
The district court dismissed the case, citing the "normal" rule that a prisoner's claims for equitable relief become moot when he or she leaves the prison. But the D.C. Circuit reversed, holding that Reid's harms are "capable of repetition but evading review." The court wrote that Reid alleged that he was in the SHU in different facilities, that he suffered the same harms in different SHUs, and that prison officials gave the same explanation: "policy." Add those up, and you get "capable of repetition but evading review." Here's the court:
The BOP's argument ignores that Reid's complaint identifies not only single instances but also BOP's alleged policy or practice or violating its own regulations to the detriment of Reid. In particular, Reid has alleged three key facts. First, he has been housed at eight different SHUs since 2008. Second, he has suffered a uniform set of deprivations at each SHU that contradict BOP's written regulations. Third, each time he has suffered a deprivation, he alleges that BOP officials justify the deprivations based on "BOP policy." Having been placed in a SHU in myriad different BOP institutions, subject each time to a restriction allegedly imposed under a purported BOP policy or practice contravening BOP regulations, Reid has proffered a logical theory that the challenged actions reasonably will recur despite his current transfer out of the SHU.
Both the District Court and the government on appeal have failed to grapple with Reid's claim that he was repeatedly subjected to deprivations in the SHU due to an ongoing policy or practice of the BOP.
At the same time, the court acknowledged that there may be several other reasons for the district court to dismiss the case on remand.
Judge Katsas dissented, arguing that "[w]e should reject Reid's conclusory allegation that BOP has implemented unlawful nationwide policies. And without such unifying policies, the specific disputes alleged here are not capable of repetition."
Thursday, March 28, 2019
Judge James E. Boasberg (D.D.C.) ruled in two separate cases that the Department of Health and Human Services's approval of work requirements for Medicaid by Arkansas and Kentucky violated the Administrative Procedure Act. The rulings send the cases back to HHS for further consideration of the requirements.
The rulings are a victory for opponents of Medicaid work requirements--at least for now. It is possible that the states and HHS on remand could come up with better reasons for imposing the requirements (reasons more consistent with the purposes of the Medicaid program, that is), or that Congress could change the Medicaid program to authorize work requirements. But barring some more Medicaid-consistent reason for the requirements (or a congressional change, which seems unlikely, at best), it doesn't look like this court will approve any HHS authorization for these states' work requirements.
Just to be clear: the ruling does not halt all work requirements, though. It just says that HHS has to reconsider its approval of work requirements for these two states. The Trump Administration has approved eight states for work requirements, and seven other states are in the pipeline.
One ruling says that HHS's approval of Arkansas's work-requirement "demonstration project" violated the APA, because HHS failed to consider that the requirement would lead a substantial number of Arkansas residents to be disenrolled from Medicaid. That's a problem, because the core purpose of Medicaid is to "furnish medical assistance" to those who cannot afford it. If the work requirement cuts recipients off, then, said the court, it fails to advance the core purpose of the Medicaid program. And because HHS didn't consider that in approving the project, HHS's approval was arbitrary and capricious in violation of the APA.
The court's reasoning in the Arkansas case follows its same reasoning in the Kentucky case from last summer. The court sent the Kentucky case back to HHS for further consideration, and the second recent ruling deals with HHS's approval of Kentucky's work requirement after reconsideration.
In that second case, round 2 of the Kentucky challenge, HHS advanced a new argument on remand: If Kentucky's work requirement isn't approved, then Kentucky would have to un-expand its Medicaid expansion (under the Affordable Care Act) in order to ensure that its Medicaid program remained viable. The un-expansion would result in even more recipients being thrown off Medicaid than the work requirement. In other words, Kentucky threatened to un-expand Medicaid (and cut even more people off) if HHS didn't approve the work requirement.
The court had none of it: "The Court cannot concur that the Medicaid Act leaves the Secretary so unconstrained, nor that the states are so armed to refashion the program Congress designed in any way they choose." The court sent Kentucky's request back to HHS for reconsideration, again.
Next step in both cases: HHS reconsideration, yet again. In the meantime, the states can't impose their proposed work requirements.
Wednesday, March 20, 2019
The Eleventh Circuit ruled in Alabama Department of Corrections v. Advance Local Media that a media outlet that intervened in a death-penalty case had a common law right to access the state's death penalty protocol. The ruling means that the state must release the protocol (with some redactions).
The case arose when a Doyle Lee Hamm, a condemned prisoner, challenged his scheduled method of execution based on his medical conditions. After one botched attempt, Hamm filed an amended complaint again challenging the protocol. Hamm and the state agreed to dismiss the claims, and the court dismissed the case. On the same day, Alabama Media Group moved to intervene and to unseal records, transcripts, and briefs discussing Alabama's protocol.
Alabama argued, among other things, that the media group didn't have a right to access the protocol, because the state never entered the protocol into the record. Instead, the state provided it to the court for in camera review. The trial court nevertheless ruled in favor of the media group, and the Eleventh Circuit affirmed.
The court ruled that the media group had a common law right to access the protocol. It didn't matter that the state didn't enter it into the record; instead, it only mattered whether the protocol was integral to the resolution on the merits. As the court explained:
we hold that materials submitted by litigants--whether or not they are formally filed with the district court--that are "integral to the 'judicial resolution of the merits'" in any action taken by that court are subject to the common law right of access and the necessary balancing of interests that the right entails.
As to the balancing of interests, the court said that the state's interests in withholding the protocol were outweighed by the media group's interests in gaining access to it. The court noted that the state's interest in security could be accommodated by selective redacting.
Tuesday, March 19, 2019
The Supreme Court ruled today that a treaty between the United States and the Yakama Nation preempts Washington's tax on "motor vehicle fuel importer[s]" who bring fuel into the state by "ground transportation." The ruling in Washington State Dept. of Licensing v. Cougar Den, Inc. means that Washington can't apply its tax to Yakama Nation members who import fuel.
The case pits a provision of the treaty against the state tax. The treaty provision reserves Yakamas' "right, in common with citizens of the United States, to travel upon all public highways," while Washington taxes "the importation of fuel, which is the transportation of fuel." The Court held, 5-4, that the treaty provision preempts the state tax. (Justice Gorsuch joined the progressives; the other four conservatives dissented.)
Justice Breyer wrote for a plurality that included Justices Sotomayor and Kagan. As to the tax, he wrote that it applies to transportation of fuel, and not just the possession of fuel, and thus implicated the treaty's right to travel. As to the treaty, he said that the the language "in common with citizens of the United States" was more than just an equality clause. (Mere equality would have meant only that Yakamas enjoyed the same right to travel as U.S. citizens, and not an especial right to travel to trade goods.) Justice Breyer wrote that prior Court decisions interpreting similar clauses in the treaty gave it broader sweep, and that this was based on the Yakamas' understanding of the treaty when it was signed. Moreover, he said that "the historical record adopted by the agency and the courts below indicates that the right to travel includes a right to travel with goods for sale or distribution." Finally, he wrote that imposing a tax on "traveling with certain goods burdens that travel." Putting the these points together, he concluded that the treaty provision preempts the state tax.
Justice Gorsuch wrote separately, joined by Justice Ginsburg, in a somewhat more muscular opinion--and one even more overtly favoring the Yakamas. In addition to making points similar to Justice Breyer's, he pointed out that the state court relied on factual findings from an earlier case as to the Yakamas' understanding of the treaty (which was broader than mere equality), and ruled that Washington was estopped from challenging those findings. He said that the findings were binding on the Court as well. Justice Gorsuch ended with this:
Really, this case just tells an old and familiar story. The State of Washington included millions of acres that the Yakamas ceded to the United States under significant pressure. In return, the government supplied a handful of modest promises. The State is now dissatisfied with the consequences of one of those promises. It is a new day, and now it wants more. But today and to its credit, the Court holds the parties to the terms of their deal. It is the least we can do.
Chief Justice Roberts, joined by Justices Thomas, Alito, and Kavanaugh, dissented. He argued that the state tax applied to possession of fuel, not to transportation, and therefore didn't implicate the treaty's right to travel at all. Justice Kavanaugh separately dissented, joined by Justice Thomas. He argued that the treaty's plain language only protected an equal right to travel, not an especial right to travel.
Monday, March 18, 2019
Attorney General Barr invoked the state secrets privilege to protect material in Twitter's suit against the Justice Department for forbidding it from publishing information on National Security Letters and surveillance orders that it received from the government.
The case, Twitter v. Barr, arose when Twitter sought to publish a Transparency Report describing the amount of national security legal process that the firm received in the second half of 2013. Twitter sought to publish this information because it said that the government wasn't completely forthcoming in its public comments about the extent of national security legal process served on it. DOJ declined Twitter's request to publish the information, citing national security concerns, and Twitter sued under the First Amendment. Here's Twitter's Second Amended Complaint.
DOJ now asserts the state secrets privilege in order to protect certain information in the pending case. But there are two things that make the assertion a little unusual. First, DOJ asserts the privilege not against the Transparency Report itself or the information contained in it, but instead against a confidential submission (the "Steinbach Declaration") that explains why Twitter's request to publish this information could harm national security. In other words, DOJ says that the explanation why the underlying information could harm national security itself could harm national security.
Next, Twitter's attorney now has a security clearance to view the material, yet DOJ argues that the privilege should still protect the material--even from Twitter's security-cleared attorney. (DOJ's position has been that the court could review material in camera and ex parte and make a determination as to whether it could come in.) In fact, much of the government's submission is dedicated to arguing why privileged material can't be released to a security-cleared plaintiff's attorney. (In short: It would increase the risk of disclosure.)
The government argues that the privileged material is such an important part of Twitter's suit that, without it, the court must dismiss the case.
DOJ cites four categories of privilege-protected classified national security information that appear in the Steinbach Declaration: (1) information regarding national security legal process that has been served on Twitter; (2) information regarding how adversaries may seek to exploit information reflecting the government's use of national security legal process; (3) information regarding the government's investigative and intelligence collection capabilities; and (4) information concerning the FBI's investigation of adversaries and awareness of their activities.
The government's submission is supported by declarations of AG Barr and Acting Executive Assistant Director of the National Security Branch of the FBI Michael McGarrity. The government separately submitted a confidential version of McGarrity's declaration.
Importantly, AG Barr's declaration draws on the Attorney General's Policies and Procedures Governing Invocation of the State Secrets Privilege, adopted in the Obama Administration as a response to the widely regarded overly aggressive assertions of the privilege during the Bush Administration. AG Barr's references to this document suggest that the current DOJ will respect the principles stated in it.
Thursday, March 14, 2019
The Ninth Circuit rebuffed federal preemption and First Amendment challenges by Airbnb and HomeAway.com to Santa Monica's regulations on vacation home rentals. The ruling means that Santa Monica's regs can stay in place, and gives a green light to other jurisdictions that similarly seek to regulate these services.
The case, HomeAway.com v. City of Santa Monica, involves Santa Monica's efforts to regulate the Internet vacation home-rental market. The city first prohibited all short-term home rentals of 30 consecutive days or less, except licensed "home-sharing" (rentals where residents remain on-site with guests). It later added four requirements for Internet hosting platforms for vacation rentals: (1) collecting and remitting "Transient Occupancy Taxes," (2) disclosing certain listing and booking information regularly, (3) refraining from completing any booking transaction for properties not licensed and listed on the City's registry, and (4) refraining from collecting or receiving a fee for "facilitating or providing services ancillary to a vacation rental or unregistered home-share." Under the ordinance, if a platform complies with these requirements, it's presumed to be in compliance with the law. Otherwise, violations carry a fine up to $500 or imprisonment for up to six months.
Airbnb and HomeAway.com sued, arguing that the requirements were preempted by the federal Communications Decency Act and violated free speech. The Ninth Circuit rejected these claims.
As to the CDA, the Ninth Circuit ruled that the regs didn't require the plaintiffs to act as a "publisher or speaker," which would have brought them within the CDA's immunity provision. (The CDA provides Internet companies immunity from certain claims and liability in order "to promote the continued development of the Internet and other interactive computer services.") The court said that Santa Monica's regs only prohibited the plaintiffs from processing transactions for unregistered parties, not to monitor third-party content. Moreover, it held that the regs didn't require the plaintiffs to remove third-party content (even if in practice the plaintiffs would). Finally, the court ruled that the regs "would not pose an obstacle to Congress's aim to encourage self-monitoring of third-party content," so wouldn't post an obstacle to congressional purposes under the Act.
As to the First Amendment, the court said that the ordinance doesn't regulate speech (it regulates conduct, a commercial exchange), it doesn't "singl[e] out those engaged in expressive activity," and "the incidental impacts on speech . . . raise minimal concerns."
Wednesday, March 13, 2019
District Court Gives the Go Ahead to Sierra Club Suit Against Energy for Lack of Energy-Efficiency Regulation
Judge Emmet G. Sullivan (D.D.C.) ruled in Sierra Club v. Perry that Sierra Club has associational standing to sue the Department of Energy for the Department's failure to promulgate energy-efficiency standards for manufactured housing, as required by the Energy Independence and Security Act of 2007.
The ruling means that Sierra Club's case can go forward. And given the court's conclusions, and the law, it seems likely that Sierra Club will win. But that doesn't mean that we'll see regs any time soon.
The case arose when Sierra Club sued the Department for failing to promulgate energy-efficiency standards for manufactured housing by 2011, as required by the Act. The Department moved to dismiss for lack of standing. The court rejected that motion.
The court ruled that Sierra Club sufficiently pleaded that its members suffered three different harms. As to the first, economic injury, the court said that "members have alleged that they either cannot find, or it is difficult to find, energy-efficient manufactured homes, and their ability to search for such homes will continue to be adversely impacted by DOE's inaction." The court noted that under circuit law a plaintiff has suffered an injury to challenge an agency action if the action prevented consumers from purchasing a desired product--even if they could purchase an alternative.
As to the second, health injury, the court said that "seven members allege that their exposure to air pollutants and other harmful emissions is negatively impacting their health due to the lack of standards for energy-efficiency in manufactured housing."
As to the third, procedural injury, the court simply said that "the Secretary has compromised Sierra Club's members' 'concrete and particularized procedural rights,' because it is clear that the Secretary failed to establish regulations for energy-efficiency standards mandated by Congress, and it is substantially probable that the Secretary's failure to establish the standards has caused Sierra Club's members' concrete injury."
The court held that Sierra Club satisfied the causation and redressability requirements, because, by the Department's own reckoning, regulations would clean up the air (and a lack of regulations keeps it dirtier).