Wednesday, March 20, 2019

Eleventh Circuit Orders Release of Alabama's Execution Protocol Under Common Law Right to Access

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.

March 20, 2019 in Cases and Case Materials, News, Opinion Analysis | Permalink | Comments (0)

Tuesday, March 19, 2019

High Court Says Tribal Treaty Preempts State Fuel-Transportation Tax

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.

March 19, 2019 in Cases and Case Materials, Federalism, News, Opinion Analysis, Preemption | Permalink | Comments (0)

Monday, March 18, 2019

AG Barr Invokes States Secrets Privileges in Twitter Suit

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. 

March 18, 2019 in Cases and Case Materials, Executive Authority, Executive Privilege, News, Opinion Analysis, Separation of Powers, State Secrets | Permalink | Comments (0)

Thursday, March 14, 2019

Ninth Circuit Upholds Santa Monica's Regulation on Home Rental Sites

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."

March 14, 2019 in Cases and Case Materials, Federalism, First Amendment, News, Opinion Analysis, Preemption, Speech | Permalink | Comments (0)

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). 

March 13, 2019 in Cases and Case Materials, Courts and Judging, Jurisdiction of Federal Courts, News, Opinion Analysis, Standing | Permalink | Comments (0)

Saturday, March 9, 2019

Ninth Circuit Strikes Limit on Asylum Appeals, Rules that it Violates Suspension Clause

The Ninth Circuit ruled in Thuraissigiam v. USDHS that the statutory limitation on federal habeas corpus jurisdiction for asylum applicants in deportation proceedings violates the Suspension Clause. The ruling sends the case back to the district court to consider Thuraissigiam's legal challenges to the procedures leading to his expedited removal order.

The ruling is a huge victory for asylum seekers in deportation proceedings. It means that Thuraissigiam and other aliens in expedited removal but who seek asylum have access to federal court to challenge a denial of asylum on the merits, and not just on narrow technicalities--at least in the Ninth Circuit.

The case arose when Vijayakumar Thuraissigiam, a native and citizen of Sri Lanka, entered the U.S. through Mexico. He was detained by a Customs and Border Patrol Officer just north of the border and placed into expedited removal proceedings. After Thuraissigiam requested asylum (based on a fear of persecution in Sri Lanka), CBP referred Thuraissigiam for an interview with an asylum officer. The officer denied asylum; the officer's supervisor affirmed; and an immigration judge affirmed.

Thuraissigiam then filed a habeas petition in federal court, arguing that his credible-fear screening deprived him "of a meaningful right to apply for asylum" and other relief in violation of federal law, and that the asylum officer and IJ violated his due process rights by "not providing him with a meaningful opportunity to establish his claims, failing to comply with the applicable statutory and regulatory requirements, and in not providing him with a reasoned explanation for their decision."

The district court dismissed the case for lack of subject matter jurisdiction. The court pointed to 8 U.S.C. Sec. 1252(e), the habeas jurisdictional hook for individuals in expedited deportation proceedings, and noted that the provision only authorized a federal court to determine (1) whether a petitioner is an alien, (2) whether the petitioner was ordered removed, and (3) whether the petitioner could prove that he or she is an alien lawfully admitted for permanent residence, as a refugee, or has been granted asylum. The court ruled that Thuraissigiam's case didn't fall into any of the three categories, and so dismissed it.

The Ninth Circuit agreed that Thuraissigiam's case didn't fall into any of the three categories, and that the district court therefore lacked statutory habeas jurisdiction over his claim. But the court went on to hold that Section 1252(e) violated the Suspension Clause.

The court, looking to Boumediene and St. Cyr, ruled first that Thuraissigiam, as an alien who was arrested in the United States, could invoke the Suspension Clause. The court ruled next that the Suspension Clause requires review of Thuraissigiam's claims, and that Section 1252(e), in disallowing review of his claims, violates the Clause. In particular, the court noted that Section 1252(e) prevented any judicial review of whether DHS complied with the procedures in an individual case or applied the correct legal standard.

The court declined to invoke the constitutional avoidance canon, because, it said, Section 1252(e) cannot bear a reading that avoids the constitutional problems that it creates.

The court remanded the case to the district court to consider Thuraissigiam's legal claims.

March 9, 2019 in Cases and Case Materials, Congressional Authority, Executive Authority, Habeas Corpus, Jurisdiction of Federal Courts, News, Opinion Analysis | Permalink | Comments (0)

Tuesday, February 26, 2019

D.C. Circuit Rebuffs Challenge to Mueller's Appointment

The D.C. Circuit ruled in In re: Grand Jury Investigation that DAG Rosenstein's appointment of Robert Mueller as Special Counsel did not violate the Appointments Clause. The ruling reaffirms Mueller's authority as Special Counsel and means that investigation target Andrew Miller will have to comply with grand jury subpoenas issued by Mueller.

We posted previously on the case here. We posted on Paul Manafort's similar case here, and another one here. We posted on yet another similar case here. We posted on Mueller's appointment regs and letter here.

The court held that the Special Counsel is an "inferior officer" (and not a "principal officer") under the Appointments Clause, and therefore need not be nominated by the President with the advice and consent of the Senate. (If the Special Counsel were a principal officer, as Miller argued, the Appointments Clause would have required nomination by the President with advice and consent of the Senate. Because Mueller wasn't appointed this way, his appointment would have violated the Clause.) The court noted that the AG exerts near total control over the Special Counsel, notwithstanding the independence built into the Special Counsel regulatory scheme (the good-cause firing requirement), because ultimately the AG could simply revoke the Special Counsel regs and eliminate the office. (The court also noted that Deputy AG Rosenstein could have amended Mueller's appointment letter to do away with the regulatory independence that the office enjoys.) (The fact that the Special Counsel is a creation of DOJ regulations distinguishes this case on this point from Morrison v. Olsen, where the Independent Counsel was a creature of the Ethics in Government Act.)

The court held moreover that Supreme Court and circuit precedent and the AG's broad statutory power to appoint attorneys in the DOJ all say that the AG (or acting AG, here the DAG) had clear authority to appoint a Special Counsel--even one from outside the ranks of the Department. The court pointed to its own ruling in Sealed Case, involving the Office of Independent Counsel for Iran/Contra: "[T]his court assumed that the independent counsel did not already hold a position inside the Department when it held that the Attorney General's appointment of him to the Office of Independent Counsel: Iran/Contra was valid. That analysis applies equally to the facts of the instant case."

Finally, the court ruled that DAG Rosenstein sat in the seat of the AG for the purpose of Mueller's appointment--and therefore Mueller, as an inferior officer, was properly appointed by the head of an agency under the Appointments Clause. The court said that AG Sessions's recusal meant that he was "disabled" under the DOJ line-of-succession act for the purpose of appointing a Special Counsel, and that DAG Rosenstein validly stood in his shoes for that limited purpose.

February 26, 2019 in Appointment and Removal Powers, Cases and Case Materials, Executive Authority, News, Opinion Analysis, Separation of Powers | Permalink | Comments (0)

Monday, February 25, 2019

District Court Denies Preliminary Injunction Against Agency Bump Stock Ban

Judge Dabney L. Friedrich (D.D.C.) denied the plaintiffs' motion for a preliminary injunction in their challenge to ATF's new rule banning bump-stocks. The ruling in Guedes v. Bureau of Alcohol, Tobacco, Firearms, and Explosives means that the ban can go into effect as the case moves forward; it also telegraphs that the plaintiffs don't have a strong legal case, or really any legal case, against the rule.

We posted on the complaint here, with some background. (The ATF rule defines a standard bump stock as a "machinegun" under the National Firearms Act. Under the rule, effective March 26, 2019, current possessors of bump stocks must either destroy them or abandon them at an ATF office.) 

Judge Friedrich ruled that the plaintiffs were unlikely to succeed on the merits of their claims. In particular, the court held that the NFA contained ambiguous terms (key parts of the definition of "machinegun," "single function of the trigger" and "automatically," are not separately defined), and under Chevron the ATF could define "machinegun" for itself. Moreover, the court said that the ATF didn't violate any procedure under the Administrative Procedure Act in adopting the reg. The court held that the plaintiffs' Takings Clause challenge should await future government compensation, instead of a preliminary injunction. And the court rejected the plaintiffs' statutory and constitutional challenges to Acting AG Whitaker's appointment:

The plain text and structure of [the AG Act and the Federal Vacancies Reform Act], however, demonstrate that they were intended to coexist: the AG Act provides a line of succession, and the FVRA gives the President discretion to depart from that line, subject to certain limitations met here.

As a constitutional matter, the plaintiffs argue that the Appointments Clause generally requires an acting principal officer to be either the principal officer's first assistant or appointed by the President with the advice and consent of the Senate. But that theory is foreclosed by Supreme Court precedent and historical practice, both of which have long approved temporary service by non-Senate confirmed officials, irrespective of their status as first assistants.

Separately, the plaintiffs argue that the Appointments Clause at a minimum requires the role of an acting principal officer to be filled by an inferior officer and not a mere employee. . . . Whitaker's designation under the FVRA was a Presidential appointment. And if the temporary nature of Whitaker's service prevented him from becoming an officer, then the President was not constitutionally obligated to appoint him at all. 

February 25, 2019 in Appointment and Removal Powers, Cases and Case Materials, Executive Authority, News, Opinion Analysis, Separation of Powers, Takings Clause | Permalink | Comments (0)

Thursday, February 21, 2019

D.C. Circuit Says Palestinians' Genocide Claims Against Americans Can Move Forward

The D.C. Circuit ruled in al-Tamimi v. Adelson that claims by Palestinians that pro-Israeli American individuals and entities conspired to support genocide in disputed territories does not present a non-justiciable political question. The court remanded the case so that it can move forward.

The case involves Palestinian nationals' and Palestinian-Americans' claims that certain pro-Israeli American individuals and organizations funneled money to Israeli settlements, which then used the funds to train a militia of Israeli settlers to kill Palestinians and confiscate their property. In particular, the plaintiffs alleged that some or all of the defendants (1) engaged in civil conspiracy to rid the disputed territory of all Palestinians, (2) committed or sponsored genocide and other war crimes, (3) aided and abetted the commission of genocide and other war crimes, and (4) trespassed on Palestinian property. The plaintiffs brought their claims under the Alien Tort Statute and the Torture Victims Protection Act.

The district court held that the case raised non-justiciable political questions and dismissed the complaint.

The D.C. Circuit reversed. The court said that the plaintiffs' complaint reduced to two questions for the court: (1) Who has sovereignty over the disputed territory?; and (2) Are Israeli settlers committing genocide? The court ruled that the first question raised a political question, because it "plainly implicates foreign policy and thus is reserved to the political branches." But it ruled that the second question didn't:

An ATS claim, then, incorporates the law of nations. And it is well settled that genocide violates the law of nations. Genocide has a legal definition. Thus, the ATS--by incorporating the law of nations and the definitions included therein--provides a judicially manageable standard to determine whether Israeli settlers are committing genocide. . . . We are well able, however, to apply the standards enunciated by the Supreme Court to the facts of this case. . . .

In light of the statutory grounds of plaintiffs' claims coupled with Zivotofsky I's muteness regarding Baker's four prudential factors, we believe that whether Israeli settlers are committing genocide is not a jurisdiction-stripping political question. Accordingly, although the question who has sovereignty over the disputed territory does present a "hands-off" political question, the question whether Israeli settlers are committing genocide does not.

The court held that the first question was extricable from the rest of the case, and therefore the lower court could move forward on the second question. (The second question doesn't require resolution of sovereignty over the disputed territories; it only asks whether Israeli settlers are committing genocide in the disputed territories.)

February 21, 2019 in Cases and Case Materials, Courts and Judging, International, Jurisdiction of Federal Courts, News, Opinion Analysis, Political Question Doctrine, Separation of Powers | Permalink | Comments (0)

Wednesday, February 20, 2019

Check it Out: Bagley on ACA Cost-Sharing at the Court of Federal Claims

Check out Nick Bagley's two-part series at Take Care on the cases coming out of the Court of Federal Claims that say that the government has to pay up its cost-sharing obligation to insurers on the Affordable Care Act exchanges--even though Congress didn't appropriate funds to do so.

The short version: Three different judges have now ruled that the ACA created an obligation on the part of the government to make the cost-sharing payments to insurers on the exchange; that Congress's refusal to appropriate funds (without more) doesn't change that obligation; and that the obligation is now enforceable in court (under the Tucker Act).

The rulings could mean that the government owes insurers about $12 billion a year.

The rulings may seem in tension with Judge Collyer's (D.D.C.) ruling that President Obama lacked authority to make cost-sharing payments without a congressional appropriation. But they're not: These cases say that the government created an obligation in the ACA, and that it must now make good on that obligation, one way or another. Congress's refusal to appropriate money in the particular cost-sharing line item (which was the basis of Judge Collyer's ruling) only means that Congress has to either fund that line or find a new source to pay the insurers. (The Court of Federal Claims notes that judgments from that court come from the Judgment Fund, a permanent, indefinite appropriation to pay judgments against the United States. So if the rulings stick, Congress wouldn't have to do anything.)

As to that second step---that Congress's refusal to appropriate funds doesn't change the underlying obligation--here's how one judge explained it:

Here, Congress has had ample opportunity to modify, suspend, or eliminate the statutory obligation to make cost-sharing reduction payments but has not done so. . . . Congress has never enacted any such appropriation riders with respect to cost-sharing reduction payments, even when cost-sharing reduction payments were being made--during both the Obama and Trump administrations--from the permanent appropriation for tax credits . . . . Thus, the congressional inaction in this case may be interpreted contrary to defendant's contention, as a decision not to suspend or terminate the government's cost-sharing reduction payment obligation. 

In short, Congress's failure to appropriate funds to make cost-sharing reduction payments through annual appropriations acts or otherwise does not reflect a congressional intent to foreclose, either temporarily or permanently, the government's liability to make those payments.

Now the interesting question is whether the insurers' mitigation efforts (through "silver loading") mean that the government doesn't have to pay, or at least doesn't have to pay as much. Check out Bagley on this.

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

Tuesday, February 19, 2019

States Sue to Stop Trump's "Emergency" Wall

Sixteen states filed suit in the Northern District of California to halt President Trump's emergency action to reprogram federal funds to build the wall. The lawsuit follows an earlier suit filed by Public Citizen, and a third one filed by environmental groups. (Both of those are in the D.C. District.)

The suits all raise similar claims (there is no "emergency" under the National Emergencies Act, and, even if there were, it doesn't unlock the authorities that President Trump is using to reprogram funds, and other cited authorities are unavailable) and ask for similar relief (a declaration that President Trump's action is unlawful, and an injunction to halt it). 

In addition to declaring an emergency under the NEA, President Trump identified three sources of funds for reprogramming. First, 10 U.S.C. Sec. 2808 allows the Secretary of Defense to "undertake military construction projects . . . not otherwise authorized by law that are necessary to support such use of the armed forces." (Section 2808 funds are only available upon the President's declaration of an emergency under the NEA, so the President's emergency declaration "unlocks" those funds.) Second, 10 U.S.C. Sec. 284 authorizes the Secretary of Defense to support certain counterdrug actions on the request of another department or agency or a state or local official, including "[c]onstruction of roads and fences and installation of lighting to block drug smuggling corridors across international boundaries of the United States." (Section 284 allows the Secretary of Defense to reprogram funds without an emergency declaration under the NEA.) Finally, 31 U.S.C. Sec. 9705 provides that after reserves and required transfers, the Treasury Forfeiture Fund's "unobligated balances . . . shall be available to the Secretary . . . for obligation or expenditure in connection with the law enforcement activities of any Federal agency. . . ." (Section 9705 also allows action without a presidential emergency declaration.) (The proclamation also invokes the Ready Reserve provision, allowing the Secretary of Defense, upon the President's declaration of an emergency, to call up "any unit, and any member not assigned to a unit to serve as a unit . . . for not more than 24 months.")

According to the White House Fact Sheet, President Trump's action authorizes reprogramming of funds (1) from the Treasury Forfeiture Fund (Section 9705, about $601 million), (2) counterdrug activities (Section 284, up to $2.5 billion), (3) and military construction (Section 2808, up to $3.6 billion). Importantly, "[t]hese funding sources will be used sequentially and as needed."

The states argue first that there is no emergency under the NEA, and that President Trump therefore lacked authority to declare one. The complaint details the ton of evidence, much from the government itself, on illegal immigration across the southern border, crime by illegal immigrants, and drugs that cross the southern border and argues that this simply doesn't add up to an NEA "emergency."

The states claim that even if there is an emergency, the President can't unlock federal funds under Section 2808. That's because building the wall doesn't "require[] use of the armed forces." Moreover, the President can't reprogram counterdrug money under Section 284, because "the proposed border wall will not assist in blocking 'drug smuggling corridors.'" Finally, the President can't tap Treasury Forfeiture Funds, because the statutory criteria under that statute aren't satisfied. 

The states also argue that the administration violated the National Environmental Protection Act, because it failed to prepare an Environmental Impact Assessment for the wall. 

The states claim that the President's actions violate the separation of powers, encroach upon Congress's spending power, and violate the relevant statutes.

As to standing, the states argue that they'll lose federal funds and the resulting economic activity when the administration reprograms money already allocated to other projects:

If the Administration were to use the funding sources identified in the Executive Actions, Plaintiff States collectively stand to lose millions in federal funding that their national guard units receive for domestic drug interdiction and counter-drug activities, and millions of dollars received on an annual basis for law enforcement programs from the Treasury Forfeiture Fund, harming the public safety of Plaintiff States. The redirection of funding from authorized military construction projects located in Plaintiff States will cause damage to their economies. Plaintiff States will face harm to their proprietary interests by the diversion of funding from military construction projects for the States' national guard units. And the construction of a wall along California's and New Mexico's southern borders will cause irreparable environmental damage to those States' natural resources.

 

February 19, 2019 in Cases and Case Materials, Congressional Authority, Executive Authority, News, Opinion Analysis, Separation of Powers | Permalink | Comments (0)

Monday, February 18, 2019

First Circuit Rules Puerto Rican Debt Restructuring Board Unconstitutional

The First Circuit ruled last week that the congressionally created Board to oversee the restructuring of Puerto Rico's debt was constituted in violation of the Appointments Clause. The court, however, stopped short of halting the Board's federal lawsuit to initiate debt adjustment proceedings on behalf of Puerto Rico, giving the government 90 days to cure the appointments defect.

The ruling in Aurelius Investment v. Commonwealth of Puerto Rico puts the ball in the government's court to get the Board members properly appointed before the debt readjustment proceeding can move forward.

The case involves the Financial Oversight Management Board created under the Puerto Rico Oversight, Management, and Economic Stability Act ("PROMESA"). Congress created the Board to provide independent supervision and control over Puerto Rico's financial affairs and to help the Island "achieve fiscal responsibility and access to capital markets." Under the Act, Board members are appointed by the President from a slate of candidates created by congressional leadership. (If the President doesn't select a member from one of these lists, the Senate has to confirm the President's nominee. But current Board members all came from a list, without Senate confirmation.)

The Board filed for debt readjustment on behalf of Puerto Rico. Debt-holders sought to dismiss the suit, arguing that the Board lacked authority to file, because Board members weren't appointed pursuant to the Appointments Clause. The Board responded that Congress had authority to constitute the Board this way under the Territorial Clause.

The First Circuit ruled against the Board. The court first acknowledged that the Territorial Clause gives Congress broad authority over U.S. territories, but rejected the argument that the the Clause is so powerful as to allow Congress to bypass the Appointments Clause. The court applied the specific-governs-the-general canon and held that the specific Appointments Clause prevails over the more general Territorial Clause. Moreover, the court said that the Territorial Clause doesn't allow Congress to override the requirement of other structural provisions, like presentment (under the Presentment Clause); so, too, it it doesn't allow Congress to override the requirements of the Appointments Clause.

The court also rejected the claim that the nondelegation doctrine, which operates more flexibly in territories (allowing Congress wider berth to delegate lawmaking authority), gives Congress room to bypass the Appointments Clause. Moreover, the court rejected arguments based on congressional control over the D.C. courts, and declined to read the Insular Cases as creating an Appointments Clause-free-zone in Puerto Rico.

As to the Appointments Clause itself, the court ruled that Board members are "officers" and therefore subject to the Clause, because the positions are "continuing," the incumbent exercises significant authority, and that authority is exercised pursuant to the laws of the United States. On this last point, the court noted that "[e]ssentially everything [Board members] do is pursuant to federal law." The court distinguished high-level Puerto Rican officials who are elected by Puerto Ricans, even though their ultimate authority traces to Congress. "So the elected Governor's power ultimately depends on the continuation of a federal grant. But that fact alone does not make the laws of Puerto Rico the laws of the United States, else every claim brought under Puerto Rico's laws would pose a federal question."

Finally, the court held that Board members are "principal" officers, because, under Edmond, "[t]hey are answerable to and removable only by the President and are not directed or supervised by others who were appointed by the President with Senate confirmation." As such, they must be nominated by the President, with advice and consent of the Senate.

The court declined to dismiss the Board's Title III petitions, however, because "[a]t a minimum, dismissing the Title III petitions and nullifying the Board's years of work will cancel out any progress made towards PROMESA's aim of helping Puerto Rico 'achieve fiscal responsibility and access to the capital markets.'" Moreover, the court stayed its ruling for 90 days to give the government time for Senate confirmation.

February 18, 2019 in Appointment and Removal Powers, Cases and Case Materials, Congressional Authority, Executive Authority, News, Opinion Analysis, Separation of Powers | Permalink | Comments (0)

Saturday, February 16, 2019

Public Citizen Sues Trump Over "Emergency" Wall Action

Public Citizen and the Frontiera Audubon Society sued President Trump for declaratory and injunctive relief yesterday over the president's declaration of a national emergency in order to reallocate funds to build the wall. The lawsuit, filed in the District of Columbia, is the first of (undoubtedly) many.

The lawsuit, Alvarez v. Trump, alleges that President Trump unlawfully invoked the National Emergencies Act because there is, in fact, no emergency, and that he unlawfully reallocated funding from Defense Department construction projects and drug interdiction efforts to build the wall. The complaint details the government's now well known statistics about immigration at the Southern border, and related matters, and quotes from President Trump's press conference yesterday: "I could do the wall over a longer period of time. I didn't need to do this, but I'd rather do it much faster"--a statement seemingly at odds with an "emergency." (But remember that the Supreme Court, in Trump v. Hawaii, upheld the travel ban under the President's authority to suspend entry of aliens if entry "would be detrimental to the interests of the United States," under the INA. In doing so, the Court managed to disregard so much of what President Trump actually said about the travel ban--which had nothing to do with "the interests of the United States." This suggests that the Supreme Court will be quite deferential to the President when the wall case gets to the high Court.)

The complaint alleges that the President violated the separation of powers by encroaching on Congress's appropriations power. In short: Congress only appropriated $1.35 billion for the wall; President Trump invoked the NEA to reallocate funds from other pots, even though there was no emergency; in so reallocating appropriated funds, President Trump encroached on Congress's power of the purse.

The complaint does not allege that the NEA's definition of "emergency" delegates too much lawmaking authority to the executive in violation of the nondelegation doctrine.

The plaintiffs include landowners along the border, who have been told that the government would use their land to build a wall, if it got the money to do so.

February 16, 2019 in Cases and Case Materials, Congressional Authority, Executive Authority, News, Opinion Analysis, Separation of Powers | Permalink | Comments (0)

Thursday, February 14, 2019

Third Circuit Says State Liquor Control Board Gets Eleventh Amendment Immunity

The Third Circuit ruled that the Pennsylvania Liquor Control Board is entitled to Eleventh Amendment immunity from a suit for monetary damages by an employee who alleged that the PLCB discriminated against him in violation of the Equal Protection Clause. The ruling ends the case.

The case, Patterson v. PLCB, arose when a PLCB employee accused the Board of discriminating against him because of his race. The employee sued for monetary damages; the PLCB moved to dismiss under Eleventh Amendment immunity; and the district court dismissed the case.

The Third Circuit affirmed. The court ruled that the PLCB, an "independent" state agency, is entitled to Eleventh Amendment immunity under the circuit's three-part balancing test. The court said first that "the state is not legally responsible for adverse judgments, the PLCB can satisfy a judgment using revenue obtained from liquor sales, and the PLCB is responsible for its own debts"--weighing against immunity. Second, the court said that the state treats the Board as an arm of the state--the Board is separately incorporated, it has its own power to sue and be sued, it's immune from state taxes, and state law considers the Board an arm of the state--weighing in favor of immunity. Finally, the court said that the Board's governing structure and oversight by the state weigh in favor of immunity. On balance, the court held that the Board gets immunity.

February 14, 2019 in Cases and Case Materials, Courts and Judging, Eleventh Amendment, Federalism, News, Opinion Analysis | Permalink | Comments (0)

Wednesday, February 13, 2019

Check it Out: Litman on the Substance of the Supreme Court's Procedure

Check out Leah Litman's piece at Take Care on the Court's orders last week in June Medical (granting a stay of the Fifth Circuit's rejection of a challenge to Louisiana's admitting-privileges requirement for doctors who perform abortion) and Dunn v. Ray (granting a stay of the Eleventh Circuit's stay of execution for an inmate who was denied an imam to attend his execution). Litman argues that these rulings "are not really about the district court's general role as fact-finders. They are, instead, about the factual, procedural, and equitable standards that courts hold different kinds of plaintiffs to--who they indulge, and who they hold to increasingly insurmountable or prohibitively difficult standards."

February 13, 2019 in Abortion, Cases and Case Materials, Courts and Judging, News, Opinion Analysis, Religion | Permalink | Comments (0)

Tuesday, February 12, 2019

Fourth Circuit Rejects Student's Establishment, Free Speech Claims Against Lesson on Islam

The Fourth Circuit rejected an eleventh-grade student's Establishment Clause and Free Speech Clause claims against school administrators and the district for including lessons on Islam in a world history course. The ruling ends the challenge and leaves the lessons in place.

The case, Wood v. Arnold, involves a particular reading and a separate particular exercise in a "Muslim World" unit within a larger world history class. The reading, which appeared on a PowerPoint slide, said, "Most Muslim's [sic] faith is stronger than the average Christian." (Underlining in original.) The exercise required students to fill in the blanks for this statement: "There is no god but Allah and Muhammad is the messenger of Allah." (Underlined words were blank in the original.) 

A student challenged the two lessons under the Establishment Clause and Free Speech Clause. The Fourth Circuit rejected those claims.

The court ruled that, given the larger context, the lessons did not violate the Lemon test: they had a sufficiently secular purpose (to study comparative religions); they did not inhibit or advance religion (applying the endorsement test as the second prong under Lemon, they merely "identif[ied] the views of a particular religion," and didn't endorse those views); and they did not entangle government and religion (because they were not religious in the first place). 

As to free speech, the court said that the fill-in-the-blank exercise didn't violate the student's right against compelled speech, because it was a school exercise that didn't require her to adopt any particular view.

February 12, 2019 in Cases and Case Materials, Establishment Clause, First Amendment, News, Opinion Analysis, Speech | Permalink | Comments (0)

Court Says Plaintiffs Don't Not Have Standing to Challenge Trump's 2-for-1 Regulatory EO

Judge Randolph D. Moss (D.D.C.) ruled last week that Public Citizen doesn't not have standing to challenge President Trump's executive order requiring agencies to revoke two regs for every one they adopt. 

The unusual ruling in this unusual case comes because of the unusual procedural posture: the government moved to dismiss for lack of standing, even as Public Citizen moved for partial summary judgment on standing. 

The ruling simply means that the case can move forward--first, on standing. The next step: the court will schedule a conference to determine how best to finally decide the standing question. At issue: Whether President Trump's EO is actually causing agencies not to adopt regulations (that then harm Public Citizens or its members).

After the court initially dismissed the case for lack of standing, Public Citizen amended its complaint to allege "purchaser standing" under circuit law. Under that doctrine, a plaintiff can allege standing based on an agency's failure to regulate, if the consumer wanted to purchase a product that would have been subject to that regulation. As the court explained, with regard to the vehicle-to-vehicle regulation--one of the five that Public Citizen challenged: 

Plaintiffs now [state] that "[t]he delay of the V2V rule is depriving" two of their members "of the opportunity to purchase vehicles with this desired feature." Although that addition might seem minor, it signals a significant change in Plaintiffs' theory of standing: rather than rely on an increased-risk-of-harm theory of standing, as they previously did, they now contend that two members of Public Citizen, Amanda Fleming and Terri Weissman, would have "purchaser standing" were they to sue in their right and that their interests are sufficient to sustain Public Citizen's associational standing to sue. . . .

Fleming attests that she plans to purchase a new car "in the next 5 years or so," and Weissman attests that she plans to buy a new car "in the next 5-7 years." Both attest that they would like their new cars to include V2V technology. They assert that the delay in finalizing the rule "will negatively affect [their] ability to purchase a new car with this safety system" and that they will "be limited in [their] ability to purchase the vehicle[s] [they] desire." 

Under circuit precedent, "the inability of consumers to buy a desired product may constitute an injury-in-fact 'even if they could ameliorate the injury by purchasing some alternative product.'" "That holds true here and provides a sufficient basis to reject the government's argument that Fleming and Weissman face no threat of injury because they can, in any event, buy a V2V-equipped Cadillac CTS sedan, Lexus, or Toyota."

But still there's the question of causality (and the related question of redressability). In particular: Did President Trump's EO cause the failure to regulate, and would a court order redress the plaintiffs' injuries? The court said that Public Citizen plausibly pleaded causation (and thus denied the government's motion to dismiss), but that it didn't show causation beyond genuine dispute (and thus denied Public Citizen's motion for summary judgment).

That ruling leaves the case alive--but only (at first) to decide whether the EO caused the plaintiffs' injuries.

February 12, 2019 in Cases and Case Materials, Executive Authority, Jurisdiction of Federal Courts, News, Opinion Analysis, Standing | Permalink | Comments (0)

Wednesday, February 6, 2019

Third Circuit Says Political Balancing on Bench Violates Free Association

The Third Circuit ruled in Adams v. Governor of Delaware that the state's constitutional requirement for political balance among the judges on most state courts violated the plaintiff's free association rights under the First Amendment. The ruling means that plaintiff James Adams can throw his hat in the ring for state judicial positions, even if his independent party status would otherwise bar his appointment under the balancing requirement.

The case tests Delaware's constitutional requirement that most state courts have political balance on the bench between the two major political parties. (The provision is at Article IV, Section 3 of the Delaware Constitution.) The governor's appointments are thus restricted by available slots for Democrats or Republicans. And in most cases the provision makes no room for independents or other party candidates for the bench. (Delaware's judges are appointed by the governor on the advice of a judicial nominating commission, with confirmation by the state Senate. When advertising for open positions, the commission designates available slots by party--"Democrat" or "Republican.")

The court ruled that restriction violated Adams's free association rights under Elrod v. Burns, Branti v. Finkel, and Rutan v. Republican Party of Illinois. First, the court (creating a split with the Sixth and Seventh Circuits) concluded that state judges were not policy-making positions or confidential positions:

Judges simply do not fit this description. The American Bar Association's Model Code of Judicial Conduct instructs judges to promote "independence" and "impartiality," not loyalty. It also asks judges to refrain from political or campaign activity. The Delaware Code of Judicial Conduct similarly makes clear that judges must be "unswayed by partisan interests" and avoid partisan political activity. The Delaware Supreme Court has stated that Delaware judges "must take the law as they find it, and their personal predilections as to what the law should be have no place in efforts to override properly stated legislative will." Independence, not political allegiance, is required of Delaware judges.

***

[T]he question before us is not whether judges make policy, it is whether they make policies that necessarily reflect the political will and partisan goals of the party in power. . . .

To the extent that Delaware judges create policy, they do so by deciding individual cases and controversies before them, not by creating partisan agendas that reflect the interests of the parties to which they belong. . . . [T]he operation of the judicial branch is not "so intimately related to [Delaware] policy" that the Governor would have "the right to receive the complete cooperation and loyalty of a trusted advisor [in that position]."

Next, the court said that even if the state's interest in partisan balance on the bench was a compelling interest, the constitutional requirement of balance wasn't the only (or narrowest) way it could achieve that interest.

Judge McKee concurred and wrote separately "to note the potential damage to the image of the judiciary [in states that select judges in general elections preceded by partisan political campaigns] and the extent to which it can undermine the public's faith in the judges who are elected."

February 6, 2019 in Association, Cases and Case Materials, First Amendment, News, Opinion Analysis | Permalink | Comments (0)

Monday, February 4, 2019

District Court Dismisses Maryland's Obamacare Case Against the Feds for Lack of Standing

Judge Ellen Lipton Hollander (D. Md.) dismissed Maryland's case against the federal government for a declaration as to the constitutionality and enforceability of the Affordable Care Act and an injunction to get the government to enforce it. Judge Hollander concluded that the state lacked standing.

At the same time, the court recognized that Maryland might establish standing in the future--if the administration actually fails to enforce the ACA.

Maryland threw all of its standing-spaghetti at the wall, but still it wasn't enough to overcome what the court called the speculative nature of its harm. Maryland argued that the government's failure to enforce the ACA would harm its proprietary and financial interests (because the state set up systems, including an exchange, under the ACA, and because the state would be on the hook for uninsureds' care); quasi-sovereign interests (ensuring that the state and its residents get to participate in the ACA); and sovereign interests (in the creation and enforcement of its insurance and healthcare regulatory regime).

But the court said Maryland's harms were too speculative, even given the state's allegations in a second amended complaint that specifically detailed the administration's efforts to undermine the ACA. (Importantly, the court concluded that Maryland hadn't sufficiently pleaded that the administration would fail to enforce the ACA--not that nonenforcement would lead to the harms that Maryland cited.) In short:

Here, the State does not fear an imminent risk of enforcement. Rather, it fears nonenforcement, which it claims would result in significant costs and harm to the State. Whereas the executive agencies are responsible for enforcing the law and can therefore be expected to bring enforcement actions, they are categorically prohibited from flouting the law. To establish a plausible inference that an agency will imminently flout the law, particularly one affecting millions of people and billions of federal dollars, requires more persuasive allegations that defendants imminently intend not to enforce the ACA.

The President's profound disdain for the ACA cannot be seriously disputed. But, the State's allegations do not create a plausible inference of a substantial or certainly impending risk that the Trump Administration will cease enforcement of part or all of the ACA. Neither the President's zealous attempts to repeal the statute, nor his derisive comments about it, support an inference that he will fail to enforce the law.

February 4, 2019 in Cases and Case Materials, Courts and Judging, News, Opinion Analysis, Standing | Permalink | Comments (0)

Friday, February 1, 2019

Fourth Circuit Dings Union President's First Amendment Retaliation Claim

The Fourth Circuit ruled in McClure v. Ports that the Maryland Transit Authority didn't retaliate against a local union president in violation of the First Amendment when it revoked his access privileges to MTA property in reprisal for his protected speech. The court also dismissed the plaintiff's Fourth Amendment claim.

The case arose when David McClure, President of the Amalgamated Transit Union Local 1300, led a public advocacy campaign against unsafe MTA policies and operations. He later represented a worker in a disciplinary hearing, where the MTA claimed that he verbally harassed an MTA hearing officer.

Citing the harassment, the MTA required McClure to get permission before entering MTA's offices, and revoked his keycard access to its facilities. After McClure several times re-entered MTA properties without permission (in order to represent union workers), the MTA had him escorted out by police (the basis of his Fourth Amendment claim).

McClure sued, arguing that the MTA retaliated against him in violation of the First Amendment by requiring permission to enter its properties and by revoking his keycard access.

The Fourth Circuit disagreed. The court assumed that McClure engaged in protected speech, and that the MTA retaliated against him because of that speech. But it held that the MTA's retaliatory actions didn't amount to unconstitutionally adverse behavior. According to the court, that's because McClure's interest in maintaining access to MTA property was "slight when compared to the government's interest in regulating such access."

On the one side of the scale, the court said that McClure was never entitled to enter MTA property: the collective bargaining agreement permitted union representatives' access only on permission of the MTA; McClure could have represented union members at grievance hearings at off-site locations (an option that the MTA offered); and McClure's keycard access was extended simply by grace of the MTA. On the other side, the MTA's interest in restricting access to its property, including private offices and garages with heavy machinery, was "weighty."

February 1, 2019 in Cases and Case Materials, First Amendment, News, Opinion Analysis, Speech | Permalink | Comments (0)