Constitutional Law Prof Blog

January 6 Committee Makes Criminal Referrals for Trump and Others

The January 6 Committee today made criminal referrals to the Department of Justice for former President Trump and others who were involved in the insurrection. The move is the first time that Congress has referred a former president for criminal prosecution.

But remember: the Committee's action doesn't have any formal legal significance, and it doesn't compel the Justice Department to act. Congress lacks that power. The Committee can simply make the referrals, turn over its findings . . . and hope that DOJ will move.

So why would the Committee go to the trouble of referring to DOJ? Most obviously, to pressure DOJ to move, and to highlight the significance of its own findings.

The DOJ is already investigating. The Committee's referrals might only light a fire under that investigation. The referrals have no formal legal significance.

The Committee's "introductory material" to its final report is here.

SCOTUS to Hear Biden Loan Forgiveness Case

The Supreme Court today agreed to hear a case challenging the Biden Administration's federal student loan forgiveness program. The case comes to the Court on the government's application to vacate the injunction halting the program entered by the Eighth Circuit. We last posted here.

The Court will hear oral argument on the program in February. In the meantime, the Eighth Circuit's injunction stays in place. The Court gave no clue as to its thinking on the merits in its brief order.

The Disqualification Clause Clause: What is it? How does it work?

Steven D. Schwinn, University of Illinois Chicago School of Law

Now that Trump has formally announced his candidacy in the 2024 presidential election, there's renewed buzz about the application of the Disqualification Clause. Here's a very brief explainer, along with some resources to help sort out what it is, and how it works.

First, the easy part: what it is. The Disqualification Clause disqualifies certain individuals from holding state and federal offices. The Clause, in Section 3 of the Fourteenth Amendment, was enacted shortly after the Civil War in order to bar confederate officers from holding public office. But its terms continue to apply today. It reads,

No Person shall be a Senator or Representative in Congress, or elector of President and Vice-President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may be a vote of two-thirds of each House, remove such disability.

Next, the harder part: how it works. The Clause itself raises several questions. For one, the Clause doesn't say how it's enforced, or who can enforce it. We do have some clues, though. We know that Congress can enact legislation "to enforce . . . the provisions" of the Fourteenth Amendment (under Section 5 of the Fourteenth Amendment). We know that "[e]ach House shall be the Judge of the Elections, Returns and Qualifications of its own Members . . . ." (Art. I, Sec. 5.) And we know that state officials and even private individuals in some cases have authority to challenge the qualifications of candidates for state and federal offices by filing quo warranto lawsuits.

For another, the Clause doesn't specifically say whether it applies to the president. But there are clues: the weight of historical scholarship says that it does.

For a third, the Clause doesn't define "insurrection or rebellion" or "aid or comfort to the enemies thereof," and it doesn't say how to determine whether a person "engaged" in the former or "g[a]v[e]" the latter. Again, we have clues. We know that Congress can call forth the militia "to suppress Insurrection." And we know that Congress enacted the Insurrection Act, which authorizes the President to call up the armed forces and militia in response to "unlawful obstructions, combinations, or assemblages, or rebellion against the authority of the United States [that] make it impracticable to enforce the laws of the United States by the ordinary course of judicial proceedings." Another part of the Insurrection Act authorizes the use of armed forces when insurrectionists "oppose[] or obstruct[] the execution of the laws of the United States or impede[] the course of justice under those laws." The Act holds accountable anyone who "incites, sets on foot, assists, or engages" in those acts.

As to "giv[ing] aid or comfort to the enemies," this may require some connection to a foreign and opposing government, not just a U.S. citizen opposing the U.S. government.

It seems clear that the January 6 insurrection was, indeed, an "insurrection or rebellion" under the Clause. And those who "incite[d], set[] on foot, assist[ed], or engage[d]" in that insurrection probably "engaged" in it for the purpose of the Clause.

But given the dearth of recent judicial precedent, we don't have a ton of contemporary judicial interpretation on enforcement. The Fourth Circuit earlier this year ruled that the 1872 Amnesty Act, which removed disqualification for confederate officers, did not remove disqualification for Madison Cawthorn in his bid for reelection to the House. The Eleventh Circuit ruled more recently that Marjorie Taylor Greene's case challenging a state process to determination disqualification was moot, because the process concluded in her favor. The best we have comes from a New Mexico state court that removed a county commissioner and prohibited him from seeking or holding any future office. That analysis is good, but it's just one court.

Rep. David Cicilline (D-RI) indicated last week that he's looking to introduce federal legislation that would ban Trump from the presidency. Other legislation is currently pending. In particular, H.R. 7906 authorizes the AG to investigate Section 3 disqualifications and pursue them in court.

CREW, which indicated earlier that it'd file to challenge Trump under the Disqualification Clause, issued letters to state AGs urging them to pursue quo warranto actions in their states. And FreeSpeechforPeople.org and Mi Familia Vota seek to garner public support for state AG actions to enforce the Disqualification Clause.

For more, here's a Congressional Research Service Legal Sidebar on the Clause.

Eighth Circuit Halts Education Debt Forgiveness Program Pending Appeal

Steven D. Schwinn, University of Illinois Chicago School of Law

The Eighth Circuit granted a motion to stop the Biden Administration from implementing its student-debt forgiveness program pending appeal. The court just a few weeks ago granted an emergency motion for an administrative stay, to the same effect.

The ruling halts implementation of the program nationwide during the state's appeal. It's another setback for the loan-forgiveness program in the courts.

The court said, contrary to the district court, that the Missouri Higher Education Loan Authority had standing as a state agency, or, if not, because of "MOHELA's financial obligations to the State treasury, the challenged student loan debt cancellation presents a threatened financial harm to the State of Missouri." Moreover, "the equities strongly favor an injunction considering the irreversible impact the Secretary's debt forgiveness action would have as compared to the lack of harm an injunction would presently impose."

The court said that it couldn't limit an injunction to the plaintiff states, however, because MOHELA services loans nationwide, and because "tailoring an injunction to address the alleged harms to the remaining States would entail delving into complex issues and contested facts that would make any limits uncertain in their application and effectiveness."

Trump Sues to Halt January 6 Committee Subpoena, surprising nobody

Steven D. Schwinn, University of Illinois Chicago School of Law

As expected, former President Trump sued on Friday to stop the January 6's Committee's subpoena for his testimony and documents.

Trump objects to the subpoena on several grounds:

[T]he Committee did not issue the Subpoena to further a valid legislative purpose; the Subpoena is unwarranted because other sources can provide the information the Subpoena seeks; the Subpoena is broader than reasonably necessary; the Subpoena infringes on executive privilege; the Subpoena infringes President Trump's First Amendment rights; the Committee is not duly authorized; and the Committee lacks authority to issue subpoenas.

Just to be clear: These grounds are entirely spurious. Some are flat wrong, factually or legally or both. Others have been roundly rejected in the courts. Again and again. Still, Trump raises them.

For example, Trump argues that a former president is absolutely immune from compelled testimony. But his best source for this is a letter that President Truman wrote in response to a subpoena by the House Un-American Activities Committee. Every other authority he cites speaks to current, not former, presidents. The difference matters: the reason for the president's absolute immunity (if such immunity exists) is that Congress, by compelling testimony, could frustrate the current president's exercise of their Article II responsibilities (by taking the president away from their job), and thus undermine the separation of powers. This reason applies with far less force, if at all, to a former president. The reason's simple: a former president is no longer exercising Article II responsibilities. In any event, neither OLC nor the Supreme Court has definitively extended absolute immunity from compelled congressional testimony to a former president. And Congress obviously thinks it has the power. That counts for something.

Trump also argues that the subpoena doesn't serve a legitimate legislative purpose. This is a familiar trope in Trump team litigation. And it's failed consistently in the courts, including in court challenges to the January 6 Committee's authority.

The strategy--the same as always--is clear: Trump's trying to run the clock in hopes that the subpoena (and the entire Committee) go away with a new Republican Congress. Or, if not, stall in the courts as long as possible.

Judge Strikes Biden Student Loan Forgiveness

Steven D. Schwinn, University of Illinois Chicago School of Law

Judge Mark T. Pittman (N.D. Tex.) ruled that the Biden Administration's student-loan forgiveness program is unconstitutional. The Administration already said that it'd appeal.

Recall that the Eighth Circuit previously temporarily halted the program pending an appeal. At the same time, the Supreme Court declined to temporarily halt the program in a different case.

Judge Pittman's ruling is different than these, in that it isn't temporary. Instead, it "vacates" the program in its entirety.

The court ruled that the program violated the newly discovered major questions doctrine. The court said that the program involved a matter of "vast 'economic and political significance'" (because it'll "cost more than $400 billion"), yet Congress hadn't clearly authorized it in the HEROES Act. Under West Virginia v. EPA's major questions doctrine, the court said that the program is therefore unconstitutional.

That's striking, given that the HEROES Act plainly authorizes the Secretary of Education to "waive or modify" federal student loans "as the Secretary deems necessary in connection with a war or other military operation or national emergency." ("The term 'national emergency' means a national emergency declared by the President of the United States.") It's striking, too, because, unlike the West Virginia case, the Administration's action here doesn't impose a regulatory scheme. If the major questions doctrine reaches this program, it'll likely reach a whole lot of other programs that we might not necessarily have expected under West Virginia, too--programs where the president has statutory authority to declare an "emergency," or where an administration takes non-regulatory action. (And remember: the Court hasn't defined "economic and political significance." So we don't know how or whether that limiting principle would apply.)

The ruling is striking at an even more basic level, on standing. Under the standing rule, a plaintiff, in order to get into federal court, has to plausibly plead (1) that they've suffered a harm, (2) that the defendant's action caused the harm, and (3) that the plaintiff's requested relief will redress the harm. Here, the plaintiffs in the case didn't qualify for the full forgiveness. That was their "harm" for standing purposes. And they connected that harm to the forgiveness program, demonstrating causation.

Yet they asked the court to vacate the entire program (as opposed to remand to the Department to fix it so that they'd qualify). The court obliged, and, as a result, they (still) don't get forgiveness (and neither does anyone else). This seems counterproductive, at best, as a practical matter. But it also seems to play fast and loose with the third standing requirement, that the requested relief must redress the harm.

Government, House File Arguments in Trump Tax Case

Steven D. Schwinn, University of Illinois Chicago School of Law

The solicitor general and the House today filed separate oppositions to former President Trump's emergency application to the Supreme Court for a stay of the lower court's ruling that Treasury must turn over Trump's taxes to the House Committee on Ways and Means.

The filings follow the Court's temporary stay and super-fast briefing schedule in the case. (The Court's temporary stay prevents Treasury from turning over the taxes until it resolves Trump's emergency application.)

Both briefs argued that the lower court got it right--that the Committee has a legitimate legislative purpose for requesting the taxes, and that the Committee's request doesn't violate the separation of powers.

The Committee brief added that the Court should rule quickly, because time's running out on this Congress, and (implicitly) that delays will simply play into Trump's run-the-clock strategy, should the Republicans take the House: "Delaying Treasury from providing the requested tax information would leave the Committee and Congress as a whole little or no time to complete their legislative work during this Congress, which is quickly approaching its end."

The Committee also added that a ruling for Trump would undermine Congress's authority more generally:

The "power of inquiry--with process to enforce it--is an essential and appropriate auxiliary to the legislative function." And more recently, this Court in Mazars confirmed that "[l]egislative inquiries might involve the President in appropriate cases" and rejected an approach that gave "short shrift to Congress's important interests in conducting inquiries to obtain the information it needs to legislative effectively." To rule for the Trump parties on the merits would disregard those important Congressional interests and "risk seriously impeding Congress in carrying out its responsibilities" by preventing Congress from completing any investigation involving a former President whenever there are allegations that the investigation was politically motivated.

Next move's for the Court.

Can Plaintiffs Sue to Enforce Conditions in Spending Clause Legislation?

Steven D. Schwinn, University of Illinois Chicago School of Law

The Supreme Court will hear arguments on Tuesday in Health and Hospital Corporation of Marion County v. Talevski. The case tests whether a state-owned nursing-home resident can sue under Section 1983 for violations of standards of care that the state must satisfy in order to receive Medicaid funding. Here's my Preview, from the ABA Preview of United States Supreme Court Cases, with permission:

FACTS

In January 2016, Gorgi Talevski entered Valparaiso Care and Rehabilitation (VCR), a government-owned nursing home, after his family determined that he needed professional care for his dementia. Shortly after he moved to VCR, Gorgi’s condition deteriorated rapidly. He lost his abilities to feed himself and to communicate in English (instead speaking only in his native Macedonian), among other cognitive and physical functions that he exhibited upon entering VCR.

Gorgi’s family discovered that VCR had been prescribing six powerful psychotropic drugs as part of his regimen. (VCR says that they prescribed drugs, including these six and others, in order “to arrest his decline and ameliorate his behavior.” In particular, VCR claims that Gorgi “repeatedly acted in a violent and sexually aggressive manner toward members of VCR’s staff and female residents.”) Gorgi’s family filed a grievance with the Indiana State Department of Health and hired a private neurologist, who ordered the drugs stopped. Gorgi’s condition improved, and he could feed himself again. (VCR contends that Gorgi’s aggressive behavior did not improve, however.)

During the same period, VCR temporarily transferred Gorgi two or more times to an all-male facility about an hour-and-a-half away. (Gorgi returned to VCR in between the temporary transfers.) Around December 2016, a physician at the second facility determined that Gorgi should not return to VCR. So VCR transferred Gorgi through an involuntary discharge to a dementia facility in Indianapolis.

Gorgi’s family filed a grievance with the Indiana State Department of Health. A state administrative law judge ruled that VCR violated Gorgi’s discharge rights. But the only relief available was readmittance to VCR. Fearing that VCR would retaliate against him, Gorgi’s family moved him to another nursing home.

Gorgi’s wife, Ivanka Talevski, sued VCR on Gorgi’s behalf. She alleged that VCR wrongfully used chemical restraints on Gorgi and impermissibly transferred him in violation of the Federal Nursing Home Reform Act (FNHRA). The district court ruled in favor of VCR, but the United States Court of Appeals for the Seventh Circuit reversed. This appeal followed.

CASE ANALYSIS

Congress enacted the FNHRA to establish minimum standards of care that nursing homes must meet in order to qualify for federal Medicaid funding. The FNHRA sets certain rules for nursing-home facilities, and it sets certain “[r]equirements relating to residents’ rights.” In return for receiving federal Medicaid funds, state nursing-home facilities must comply with these rules and respect these rights.

Two of those rights are at issue here. The first one protects nursing-home residents against “chemical restraints imposed for purposes of discipline or convenience and not required to treat the resident’s medical symptoms,” except “to ensure the physical safety of the resident or other residents” and only under specific physician instructions. 42 U.S.C. § 1396r(c)(1)(A). The second one prohibits a nursing home from transferring a resident unless “the safety of individuals in the facility is endangered,” among other specified exceptions. 42 U.S.C. § 1396r(c)(2).

But just because the FNHRA establishes those rights, a nursing-home resident cannot necessarily sue to enforce them. That’s because the FNHRA is a federal spending program; it sets conditions for states on the receipt of federal funds (in this case Medicaid funds). In that way, the FNHRA, like other spending programs, creates benefits and obligations between the federal government and the states. While the FNHRA sets standards for the benefit of nursing home patients, the question is whether those patients can sue to enforce those rights. (Just a quick technical note, with important implications: individuals sue to enforce federal rights under another statute, 42 U.S.C. § 1983, or just “Section 1983.” That law, first enacted in 1871, authorizes individuals to sue defendants who are acting “under color of law” for violating their rights under the Constitution or federal law. We’ll hear the parties reference Section 1983 throughout the oral argument.)

Under Court precedent, a person can sue to enforce rights created by a federal spending program only when that program has certain characteristics. In particular, Congress must have intended that the program, or a provision in it, benefits the plaintiff; the rights can’t be “vague and amorphous” so as to “strain judicial competence”; and the program “must unambiguously impose a binding obligation on the States.” Blessing v. Freestone, 550 U.S. 329 (1997). All this means that a plaintiff must demonstrate that a federal spending program unambiguously creates an individual right that protects the plaintiff. Gonzaga University v. Doe, 536 U.S. 273 (2002). That’s a high bar, and the Court hasn’t found that a federal spending program created an individually enforceable right since 1990.

Against this backdrop, VCR argues first that congressional spending programs do not create enforceable rights under Section 1983 at all. VCR says that Congress enacted Section 1983 with common-law contractual principles in mind. According to VCR, those principles preclude “third parties” from enforcing contracts. If a federal spending program is a contract between the federal government and a state, this means that an individual who is not a party to the contract (like a nursing home resident) can’t sue to enforce that contract, even if the contract protects them. VCR claims that this is also consistent with separation-of-powers and federalism principles in our Constitution. Finally, it contends that the Court itself has effectively recognized this in its most recent decisions, which, according to VCR, call into question whether congressional spending programs give rise to Section 1983 claims. VCR asserts that the Court should overrule its cases to the contrary.

But even if the Court continues to hold that certain federal spending programs allow Section 1983 claims, VCR argues that the FNHRA doesn’t. VCR says that Congress has created “more than sufficient [other] individualized remedies” for nursing-home residents “to foreclose resort to Section 1983.” Moreover, it claims that the two rights asserted by Talevski “come nowhere close to meeting the stringent criteria” in Blessing and Gonzaga.

Talevski counters that congressional spending programs like the FNHRA can create rights, and that the plain text of Section 1983 authorizes individual lawsuits to enforce them. Talevski says that the text, context, and purpose of Section 1983 all support this conclusion. He also claims that the Court’s precedents and specific congressional ratification of those precedents support this conclusion. Talevski asserts that these sources should guide the Court’s ruling, not the common law of contracts in the 1870s. But even if the common law of contracts governs, Talevski says that “the prevailing rule in this country in the early 1870s was that third parties could sue to enforce contracts for their benefits,” and so Section 1983 authorizes lawsuits to enforce rights in federal spending programs even under VCR’s historical argument.

Talevski argues next that Congress clearly intended to allow individual lawsuits to enforce the FNHRA’s rights against chemical restraint and involuntary discharge. He says that the FNHRA’s text, structure, history, and purpose all support this conclusion. For example, he points out that the FNHRA repeatedly refers to residents’ “rights,” that the FNHRA specifically describes them as “legal rights,” and that the FNHRA rights pass to a resident’s guardian if the resident becomes incompetent. Talevski also points out that the FNHRA rights are part of a “bill of rights” that are provided orally and in writing to each resident. He claims that these rights are “fundamental” for nursing home residents, who “are among the most vulnerable individuals in our society.”

Finally, Talevski argues that the FNHRA offers no other federal mechanism for residents to hold nursing homes accountable for individual rights violations. He says that before the FNHRA these rights were secured only by regulation, and that Congress would have no reason to enact the FNHRA if regulatory enforcement sufficed. Moreover, he points out that the FNHRA “explicitly preserves access to other federal remedies outside FNHRA,” including Section 1983 actions.

The government weighed in as amicus to argue that congressional spending programs can create rights that are enforceable through Section 1983 actions. In particular, the government argues that VCR is wrong to argue that common-law contract principles should govern the Court’s interpretation of Section 1983, and that the Court should not overturn its precedents authorizing Section 1983 suits to enforce spending program rights.

But at the same time the government argues that Section 1983 is not available to protect the rights in the FNHRA. The government says that the vast majority of nursing-home residents live in private nursing homes that are not covered by the FNHRA; that Congress provided only administrative oversight and enforcement for those nursing homes; and that Congress could not have intended to create an additional and potentially conflicting enforcement mechanism (through Section 1983 lawsuits) for the small percentage of public nursing-home residents.

 

SIGNIFICANCE

The first question in this case—whether a plaintiff can sue under Section 1983 to enforce rights provided in federal spending programs—could impact the ability of millions of participants in those programs to enforce their rights in court. In particular, if the Court overrules its precedents—or lets those precedents die on the vine—participants in core social-safety-net programs like Medicaid, Medicare, the Children’s Health Insurance Program, Temporary Assistance to Needy Family, the Supplemental Nutrition Assistance Program, and the McKinney-Vento Homeless Assistance Program will not be able to sue in court to enforce their rights under those programs. Because the federal government cannot enforce rights in every instance, and because the government only reluctantly withholds federal funds for noncomplying states, this would leave millions of participants at the whim of state legislatures and state officials who administer the programs—and who too often have little regard for participants’ rights.

But even if the Court stops short on the first question, the second question could have a similarly significant impact, but for a smaller population. If the Court rules that nursing-home residents cannot sue under Section 1983 to enforce their rights under the FNHRA, those residents could only rely on administrative mechanisms and, ultimately, revocation of Medicaid funds to enforce their rights. But the federal government cannot enforce FNHRA rights in every case, and it’s loath to revoke funds when states don’t comply with the Act (because such a move would ultimately hurt nursing-home residents even more).

All that said, the Court has not authorized a Section 1983 lawsuit to enforce rights in a federal spending program since 1990. For this Court, that may cut in favor of overruling precedent—either actually or practically—that allows such suits. (As we saw this Summer, this Court is not shy about expressly overruling well-settled precedent, or acknowledging that well-settled precedent has effectively withered away.) And VCR’s historical argument (on the common-law of contracts) is pitch-perfect for this Court and its newly revitalized historical approach. (That’s not to say that VCR’s argument is right. As several amici point out, it’s not. But the Court’s newly revitalized historical approach only concerns itself with “the historical record compiled by the parties” in litigation, not (necessarily) the actual historical understanding of a particular area of law. New York State Rifle & Pistol Association, Inc. v. Bruen, 597 U.S. ___ (2022).) All this means that the case is ripe for this Court to restrict or even overturn its precedents allowing Section 1983 claims to enforce rights in federal spending programs.

Eleventh Circuit Writes Final Chapter in Marjorie Taylor Greene Candidacy Challenge

Steven D. Schwinn, University of Illinois Chicago School of Law

The Eleventh Circuit yesterday ruled that Representative Marjorie Taylor Greene's federal lawsuit seeking to halt a state-level challenge to her candidacy was moot. The court said that the state process ran its course in her favor, and so there was nothing left for the federal courts to enjoin.

The case started when a group of Georgia voters filed a claim under Georgia's "Challenge Statute" that Marjorie Taylor Greene was ineligible for election to the House under Section 3 of the Fourteenth Amendment. That provision says that a person can't be candidate for office if they took an oath as an officer to support the Constitution of the United States and subsequently "shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof."

Greene sued in federal court to halt the state-level challenge, arguing that it violated her First Amendment right to run for public office; the Due Process Clause; Article I, Section 5, insofar as it exceeded the state's power to regulate election procedures and usurped the House's role as judge of the qualifications of its members; and the 1872 Amnesty Act (which she claimed removed the "disability" imposed by Section 3 prospectively to all members of Congress).

The federal district court ruled against Greene, and Greene appealed to the Eleventh Circuit.

Meanwhile, in the state challenge, a Georgia administrative law judge ruled that Greene's challengers failed to show that she fit within Section 3. Georgia Secretary of State Brad Raffensperger adopted the ALJ's conclusion, and the state courts affirmed.

Given that the state challenge ran its course, the Eleventh Circuit yesterday dismissed Greene's federal case as moot. The court said nothing about the merits of the challengers' Section 3 claim against Greene.

But Judge Branch, in a concurring opinion, argued that Greene was likely to prevail on her claim that the state process would have violated Article I, Sections 4 and 5 by imposing an additional qualification on her--that she defend herself against a Section 3 challenge in a state process:

[I]n purporting to assess Rep. Greene's eligibility under the rubric of Section 3 of the Fourteenth Amendment to the U.S. Constitution, Georgia imposed a substantive qualification on her. The State was not merely, as the district court incorrectly concluded, enforcing the preexisting constitutional disability in Section 3. Instead, the State Defendants, acting under the Challenge Statute, forced Rep. Greene to defend her eligibility under Section 3 to even appear on the ballot pursuant to a voter challenge to her candidacy--thereby imposing a qualification for office that conflicts with the constitutional mechanism contained in Section 3. In other words, by requiring Rep. Greene to adjudicate her eligibility under Section 3 to run for office through a state administrative process without a chance of congressional override, the State imposed a qualification in direct conflict with the procedure in Section 3--which provides a prohibition on being a Representative and an escape hatch.

SCOTUS Temporarily Blocks Committee Access to Trump Taxes

Chief Justice Roberts issued an order temporarily blocking the House Committee on Ways and Means from obtaining former President Trump's tax returns from Treasury. The D.C. Circuit previously rebuffed Trump's various claims and ruled that the Committee could obtain the returns under a federal law that requires Treasury to turn over tax returns "[u]pon written request from the chairman of the Committee on Ways and Means." Chief Justice Roberts's order (as D.C. Circuit justice) temporarily stays that ruling and blocks the Committee from receiving the returns, pending Court consideration.

At the same time, Chief Justice Roberts ordered the Committee to respond to Trump's application by November 10, indicating that the Court intends to move quickly on this.

We previously posted here.

SCOTUS Clears Way for Graham Testimony in GA Election Case

The Supreme Court rejected Senator Lindsey Graham's application to halt a lower court ruling requiring him to testify before the special grand jury investigating possible criminal activity surrounding the 2020 general elections in Georgia.

We posted most recently here.

The ruling means that Graham will have to testify, but that he can still raise Speech-or-Debate-Clause immunity in response to particular questions, and bring any disputes back to court.

The order reads,

The lower courts assumed that the informal investigative fact-finding that Senator Graham assertedly engaged in constitutes legislative activity protected by the Speech or Debate Clause . . . and they held that Senator Graham may not be questioned about such activities. The lower courts also made clear that Senator Graham may return to the District Court should disputes arise regarding the application of the Speech or Debate Clause immunity to specific questions. Accordingly, a stay or injunction is not necessary to safeguard the Senator's Speech or Debate clause immunity.

Fulton DA Fires Back Against Graham's Emergency Application for Stay

Steven D. Schwinn, University of Illinois Chicago School of Law

The Fulton County DA filed her Response in Opposition to Senator Lindsey Graham's emergency petition to Justice Thomas (as Eleventh Circuit justice) to stay the lower courts' rulings ordering him to testify before the special grand jury investigating possible criminal activity surrounding the 2020 general elections in Georgia.

Justice Thomas could rule on Senator Graham's petition himself, or he could refer it to the whole Court. Given the sensitivities, look for him to refer it to the whole Court. Either way, a ruling could come any time.

We previously posted on the Eleventh Circuit's ruling, Senator Graham's emergency petition, and Justice Thomas's temporary stay here.

DA Fani Willis argues that the lower courts got it right on Senator Graham's claim of immunity under the Speech and Debate Clause. She wrote that the lower courts properly concluded that Senator Graham's calls to Georgia Secretary of State Brad Raffensperger were not "manifestly legislative." She said that the courts' solution--that Senator Graham could be asked about aspects of his calls that did not relate to his legislative activities, but not aspects of the calls that did--was sound.

As to Senator Graham's claim of sovereign immunity, DA Willis said he simply has no support.

While the Senator states that the subpoena was issued to "Senator Graham" rather than "citizen Graham," that is simply not true. The Grand Jury is aware that it cannot question "Senator Graham" about his indisputably legislative actions, and a great deal of time and effort has been expended to determine precisely the safest way to question the Senator and avoid improper questioning. Any questions will be addressed to topics outside legislative duties as defined by this Court. Because the Senator's arguments do not have a foundation in the law, as the district court repeatedly held, sovereign immunity does not afford him a basis for success on the merits of his arguments.

Full D.C. Circuit Allows Committee To Get Trump Tax Returns

The full D.C. Circuit, with no noted dissent, declined to review a panel ruling that held that the House Committee on Ways and Means could obtain former President Trump's tax returns from Treasury. This isn't really a surprise: the panel ruling in favor of the Committee was thorough and sound.

But this doesn't mean that the Committee will actually get the returns anytime soon. That's because Trump is sure to seek review at the Supreme Court. Even if the Court declines review quickly, Trump'll certainly drag this out until the next Congress moves in. If Republicans take the House, the whole thing'll become moot.

Why Did the Eighth Circuit Halt Educational Debt Cancellation (after Justice Barrett allowed it)?

Steven D. Schwinn, University of Illinois Chicago School of Law

Justice Barrett last week denied an emergency request by a Wisconsin taxpayer association to halt the Biden Administration's program to cancel qualifying student debt. The ruling meant that the Administration could continue to operate the program pending the association's appeal.

Then the Eighth Circuit granted the same emergency relief to Missouri in a parallel case. This ruling halted the program pending appeal.

The two cases raise the same legal claims. District courts in both cases dismissed the cases because the plaintiffs lacked standing. (The Seventh Circuit refused to halt the program while the Wisconsin group appealed.)

So why the difference? Neither Justice Barrett's order nor the Eighth Circuit order contains any legal analysis. So we don't know for sure. But here's a take:

In order to establish standing, a plaintiff has to plausibly allege that they've suffered, or will imminently suffer, a concrete and personal harm, caused by the defendant's actions, and redressible in federal court. Because the harm must be concrete and personal (to the plaintiff), a person or organization cannot establish standing simply because they don't like the way the government is using their taxes. This kind of "generalized taxpayer" harm is too diffuse, and the Court has rejected it as a basis for standing.

The plaintiff in the Wisconsin case is a taxpayer association that unashamedly pleads generalized taxpayer standing. The district court easily rejected standing in that case, and the Seventh Circuit easily declined to halt the Administration's program pending the plaintiff's appeal. Justice Barrett then easily denied the plaintiff's request for emergency relief.

The plaintiff in the Missouri case, in contrast, is the state itself. It asserted standing on behalf of an organization that the state established to service federal loans. The district court ruled that the state didn't have authority to sue on the organization's behalf, and therefore lacked standing. While this seems right (or at least not obviously wrong), it's a closer case than the Wisconsin plaintiff.

That difference may explain the difference in the two preliminary rulings. The Eighth Circuit might've thought that Missouri could establish standing, where Justice Barrett might've seen that the Wisconsin organization couldn't.

But the key word there is "preliminary." No court has yet ruled on the merits. The Administration justifies the debt-cancellation program under the Higher Education Relief Opportunities for Students Act of 2003, which authorizes the Secretary of Education to "waive or modify" terms of federal student loans in an emergency, here COVID-19. The plaintiffs claim in short that the Administration's debt cancellation exceeds the statutory authority, or, if it doesn't, that the statute grants too much discretion in violation of the recently discovered major questions doctrine. Here's the Office of Legal Counsel's opinion on the issue.

Fifth Circuit Says CFPB Funding Violates Appropriations Clause, Separation of Powers

Steven D. Schwinn, University of Illinois Chicago School of Law

The Fifth Circuit ruled last week that funding mechanism for the Consumer Financial Protection Bureau violates the Appropriations Clause and the separation of powers. While the ruling itself only strikes the CFPB's Payday Lending Rule, the logic of the opinion threatens all CFPB actions and the CFPB itself.

The case is just the latest attack on the CFPB under separation-of-powers principles (and, more generally, attacks on all agencies with any independence under separation-of-powers principles). The Court previously ruled in Seila Law v. CFPB that the for-cause tenure protection for the Director impermissibly intruded on the President's Article II authority over the executive branch, in violation of the separation of powers. This case tests agency independence under a different principle, though, the Appropriations Clause and Congress's power of the purse. The argument--and the court's ruling--says that the CFPB's funding mechanism is unconstitutional, because the CFPB doesn't get its funds through the ordinary congressional appropriations process, as required by the Appropriations Clause; instead, it gets its funds from the Federal Reserve, which, in turn, gets its funds from bank assessments.

While the ruling only applies to the Payday Lending Rule, its logic extends to all things CFPB. Indeed, the ruling will invite other cases challenging all manner of CFPB actions. If the ruling gains traction in other circuits or sticks on appeal, it'll likely ultimately end the agency as we know it.

The case, Community Financial Services Association of America v. CFPB, arose out of a challenge to the CFPB's Payday Lending Rule. That Rule prohibits lenders from making covered loans "without reasonably determining that consumers have the ability to repay the loans according to their terms," and limits a lender's ability to obtain loan repayments by pre-authorized account access. Community Financial Services argued that the Rule was invalid because (1) the Director enjoyed unconstitutional insulation from removal at the time of its adoption, (2) the Rule violated the non-delegation doctrine, and (3) the CFPB, in issuing the rule, violated the Appropriations Clause and the separation of powers.

The Fifth Circuit rejected the first two arguments, but accepted the third. The court noted that the CFPB gets its funding from the Federal Reserve, which gets its own funding from bank assessments (and not congressional appropriations). The CFPB then holds its funds in a separate account maintained by the Fed, and not an account at Treasury (like other agencies). This allows the CFPB to roll-over funding from year to year (unlike most other agencies). 

The court said that this structure "double-insulated" the CFPB from the ordinary congressional appropriations process, and that the structure therefore violated the Appropriations Clause and the separation of powers. "An expansive executive agency insulated (no, double-insulated) from Congress's purse strings, expressly exempt from budgetary review, and headed by a single Director removable at the President's pleasure is the epitome of the unification of the purse and the sword in the executive . . . ."

The court was unconcerned that Congress itself created the CFPB's funding structure. It said that Congress created the funding structure through ordinary legislation, not "in consequence of appropriations made by law," as required by the Appropriations Clause. Moreover, it said that Congress can't cede away its authority in violation of the separation of powers.

The court acknowledged that several other courts upheld the CFPB's funding structure. But it disagreed as to the reasoning. The court said that these other courts focused on the fact that some other federal agencies are self-funded, but that in contrast to these agencies the CFPB is "double-insulated" because it receives its funding from the Fed.

The court "vacate[d] the Payday Lending Rule as the product of the Bureau's unconstitutional funding scheme."

UPDATE: Senator Graham Asks SCOTUS to Block Subpoena Pending Appeal in GA Election Investigation

Steven D. Schwinn, University of Illinois Chicago School of Law

Senator Lindsey Graham on Friday asked Justice Thomas (as Eleventh Circuit Justice) and the Supreme Court to stay a district court order requiring him to comply with a subpoena issued by Fulton County Prosecutor Fani Willis to testify before a special grand jury in the investigation into attempts to disrupt the 2020 elections in Georgia.

Senator Graham argues that the subpoena violates the Speech and Debate Clause and sovereign immunity.

UPDATE: Justice Thomas stayed the district court order without referring the matter to the full Court, "pending further order of the undersigned or of the Court." The ruling means that Senator Graham won't have to testify, at least yet, while his appeal of the district court order moves forward.

The case started when Senator Graham called Georgia election officials after the 2020 elections. Willis subpoenaed Graham to testify before the special grand jury about the calls, and Graham sought to quash the subpoena in federal court, arguing that the subpoena violated the Speech and Debate Clause. (That Clause says that members of Congress "shall not be questioned in any other place" for "any Speech or Debate in either House.") After some back and forth, the district court partially quashed the subpoena: it ruled that the Clause protected Graham against compelled testimony over legitimate inquiries he made about the election related to his decision "to certify the results of the 2020 presidential election," but that the Clause did not protect him from testimony over any non-investigatory conduct. (In so ruling, the court said that Graham's investigations into the election were part of his "Speech or Debate in either House," that is, part of his job as a senator, but that his non-investigatory conduct was not.) The Eleventh Circuit denied Graham's emergency application to halt the district court's order.

Graham then filed for emergency relief at the Supreme Court. As to the Speech and Debate Clause, Graham argues that his phone calls were protected, because they were part of his investigation as a senator to determine whether to certify the 2020 election. He also says that the calls led to his co-sponsoring legislation to amend the Electoral Count Act. He argues that the district court's order requires courts to assess his motives in making the calls in order to determine whether they're protected by the Speech and Debate Clause, but that the Clause "forbids inquiry into acts which are purportedly or apparently legislative, even to determine if they are legislative in fact."

In other words, he says that the courts have to take his word for it that his "apparently legislative" acts are, in fact, legislative acts. (He claims that there's a circuit split on the question, and that the D.C. Circuit most recently ruled that courts lack authority to inquire into a member's motives.)

(For more on the Speech and Debate Clause, check out this Congressional Research Service report.)

As to sovereign immunity, Graham argues that he is immune because the subpoena was issued to him as a senator (and representative of the U.S. government), not a citizen.

Graham contends that if the Court doesn't stay the district court order pending appeal, he'll be forced to testify in violation of the Speech and Debate Clause and sovereign immunity--an irreparable harm.

Justice Thomas asked for a response by Thursday. The Court's ruling should follow shortly.

January 6 Committee Subpoenas Trump

Steven D. Schwinn, University of Illinois Chicago School of Law

The January 6 Committee last week issued a subpoena for documents and testimony to former President Donald Trump. The move was expected (after an earlier Committee vote in support of a subpoena), although the Committee itself recognized that it was "significant and historic." (Compelled testimony by a former president could raise separation-of-powers issues, because the threat of future compelled testimony could chill a current president's exercise of authority under Article II. The Committee was careful to sidestep this concern, however, by requesting documents and testimony related to former President Trump's behavior outside of Article II (that is, trying to reverse a valid election, which, of course, is the exact opposite of executing Article II authority).) But at the same time, this isn't the first congressional subpoena directed at a former president, or the first time a former president testified before Congress. (For more on this, see the Senate's page on testimony by former presidents before congressional committees and this Congressional Research Service report on Congress's Contempt Power and the Enforcement of Congressional Subpoenas.)

In support of the subpoena, the Committee wrote:

Because of your central role in [various efforts to overturn the 2020 presidential election], the Select Committee unanimously directed the issuance of a subpoena seeking your testimony and relevant documents in your possession on these and related topics. This subpoena calls for testimony regarding your dealings with multiple individuals who have now themselves invoked their Fifth Amendment privilege against self-incrimination regarding their communications with you, including Roger Stone, Lt. Gen. Michael Flynn, U.S. Army (Retired), John Eastman, Jeffrey Clark, and Kelli Ward. These Fifth Amendment assertions--made by persons with whom you interacted--related directly to you and your conduct. They provide specific examples where your truthful testimony under oath will be important.

In addition, as is likely obvious from the topics identified in the bullets above, we are considering multiple legislative recommendations intended to provide further assistance that no future President could succeed at anything even remotely similar to the unlawful steps you took to overturn the election. Your testimony and documentary evidence would further inform the Select Committee's ongoing work.

This last paragraph is designed to short-circuit former President Trump's inevitable argument that the Committee's subpoena lacks a legitimate legislative purpose, and is therefore invalid. Former President Trump and his supporters have lodged this claim against most every congressional inquiry into significant actions of former President Trump and his administration. The claims are spurious and designed only to delay compliance, force litigation on the question, and run the clock.

Still, look for former President Trump to make this claim, among others, in response to the Committee's subpoena. If Republicans win the House in November (and shut down the Committee when they take their seats next year), this kind of foot-dragging will pay off for him.

KBJ Goes Originalist on the Fourteenth

Steven D. Schwinn, University of Illinois Chicago School of Law

Justice Ketanji Brown Jackson went originalist on the Fourteenth Amendment (and on Alabama's solicitor general) today at oral arguments in Merrill v. Milligan, the VRA Section 2 to challenge to Alabama's congressional district map.

Justice Jackson explained that the Framers of the Fourteenth Amendment intended to allow Congress to use race-based means to overcome racial inequalities . . . and that Congress actually used race-based means in the Civil Rights Act of 1866. (The point came up in response to Alabama's argument that Section 2 plaintiffs can make their case only with a comparator map that itself is race neutral. Justice Jackson pointed out that an original understanding of the Fourteenth Amendment allows Congress to use race-based methods (like a race-based comparator map) to achieve racial equality (like fair congressional districts).)

Originalism is a constitutional interpretive technique that purports to interpret and apply the Constitution based on its original meaning (or understanding, or intent, depending on your brand). It's usually associated with a politically conservative view of the Constitution. (That's why Justice Jackson's progressive invocation today has gotten some attention.)

For more on this, check out the Constitutional Accountability Center's amicus briefs in Merrill and Students for Fair Admissions v. Harvard and UNC (the affirmative action cases). For that matter, check out CAC's work on progressive originalism generally.

Court Upholds Biden Administration's Reversal of MPP, for now

Steven D. Schwinn, University of Illinois Chicago School of Law

The Supreme Court ruled this week in Biden v. Texas that the Biden Administration's revocation of the Trump Administration's Migrant Protection Protocols did not violate the Immigration and Naturalization Act.

The ruling is a victory for the Biden Administration and its effort to reverse MPP. But at the same time, the Court gives the lowers courts yet another shot at halting the reversal.

The Trump Administration's MPP sent certain immigrants arriving from Mexico back to Mexico pending their deportation proceedings. The Administration cited authority for the move in a provision of the INA that that said that the Secretary of Homeland Security "may return the alien to that territory pending a proceeding [to determine deportability]." 8 U.S.C. Sec. 1225(b)(2)(C).

The Biden Administration revoked MPP, however, focusing on the discretionary power in that section ("may return"), and the many policy problems that MPP wrought.

Texas and Missouri sued, arguing that the revocation violated the INA and the Administrative Procedure Act. As to the INA, the States focused on a different section, which says that immigrants "shall be detained" pending their deportation hearings. 8 U.S.C. Sec. 1225(b)(2)(A). As to the APA, the States claimed that the Administration didn't sufficiently explain its decision to revoke.

The Biden Administration countered that (C), above, is discretionary, not mandatory, and that Congress hadn't appropriated nearly enough money for the Administration to detain all immigrants under (A), above.

Lower courts ruled for the States. They held that the Biden Administration violated (A), and that it failed to engage in reasoned decisionmaking in violation of the APA. After the Administration issued a new final action reversing MPP, the appeals court held that this was merely part of its first reversal, and therefore not separately reviewable (and leaving the ruling that the revocation violated the INA on the books).

The Supreme Court reversed and ruled for the Biden Administration on the INA claim. The Court held that (C)'s "may" means "may," not "must" or "shall," and therefore the INA doesn't require the Biden Administration to retain MPP. The Court said that text, prior practice, and the President's powers over foreign affairs all supported this conclusion.

The Court said that the lack of resources to detain all immigrants didn't affect this result. In particular, the Court rejected the argument that lack of resources forced the Administration to return immigrants to Mexico. That argument went like this: (1) Under the INA, the government must detain all immigrants pending deportation hearings; (2) if it can't detain them, it may either (a) return them to Mexico or (b) release them into the United States pending deportation hearings; (3) the government can't justify a blanket policy of releasing immigrants into the United States under (b), because such a policy isn't justified under the government's parole authority in the INA, which requires, among other things, a "case-by-case" determination that parole is based on "urgent humanitarian reasons or significant public benefit."

The Court simply said that it didn't need to resolve the complicated underlying questions in this argument, because (C) clearly grants the government discretionary power, and therefore does not mandate MPP.

As to the APA, the Court remanded the case for determination whether the Administration's second effort to revoke MPP was arbitrary, capricious, an abuse of discretion, or contrary to law. This part of the ruling means that the challenge isn't over . . . and that the Biden Administration's revocation may fail yet.

Justice Kavanaugh concurred, emphasizing that the lower courts should be deferential to the Biden Administration on remand, given that the case implicates foreign-policy concerns.

Justice Alito wrote the principal dissent, joined by Justices Thomas and Gorsuch. He argued that the INA clearly requires the Administration to detain immigrants pending deportation hearings, and, if not, to hold them in Mexico.

Justice Barrett dissented, too, joined by Justices Thomas, Alito, and Gorsuch. She argued that the Court should remand the case for a determination whether the lower courts have jurisdiction in the first place, under a jurisdiction-limiting provision in the INA. (Justice Barrett also explicitly agreed with the Court's analysis on the merits. Justices Thomas, Alito, and Gorsuch did not sign on to that portion (just a sentence) of her opinion.)

Court, Under Guise of Major Questions Doctrine, Slashes EPA Authority to Regulate Power Plants

Steven D. Schwinn, University of Illinois Chicago School of Law

The Supreme Court ruled this week in West Virginia v. EPA that EPA lacked authority to adopt generation-shifting measures to regulate power-plant emissions, because Congress didn't grant EPA that authority with sufficient clarity in the authorizing legislation.

The ruling strikes the Clean Power Plan, a regulatory scheme that is no longer in use, anyway. (More on that below.)

Bigger picture, the ruling creates a new separation-of-powers rule--the major questions doctrine--that says that if Congress wants to delegate regulatory authority over a significant policy question to an administrative agency, it must do so with clarity.

Because of lingering questions--What is a "major question"? What does it mean for Congress to legislative with sufficient specificity?--and because Congress often delegates authority in broad terms, this new doctrine threatens to take down a wide array of federal agency regulations, across the regulatory board. In short: The ruling is a potentially sweeping setback to the administrative state.

The case challenged EPA's authority to adopt the Clean Power Plan, a complex regulatory scheme that, in short, set emissions standards for existing power plants based on generation-shifting, that is, a power-plant's shift to cleaner sources. EPA claimed authority under the Clean Air Act, which authorizes EPA to select the "best system of emission reduction" for regulating power plants.

This didn't sit well with several States. They claimed that this provision authorized EPA to regulate only emissions from within power plants ("inside the fenceline" regulations), and not to force power plants to shift to new sources of energy or to engage in cap-and-trade ("outside the fenceline" regulations). In other words, they claimed that the generation-shifting standard in the Plan was not a "system of emission reduction," because it forced plants to make changes outside their existing facilities.

The Trump Administration later disavowed the Plan, and the Biden Administration put it on ice, because by then it was obsolete. (Market forces drove shifts to cleaner power since its original adoption.) The Biden Administration announced that it'd consider new rules, but continued to defend the Plan in court.

The Court first ruled that the case wasn't moot: it fell under the "voluntary cessation" exception, because the Biden Administration could re-adopt the Plan, or something like it.

The Court ruled next that the Plan violated the major questions doctrine. The Court held that EPA, in adopting the Plan, "assert[ed] highly consequential power" without "clear congressional authorization." In other words, the Plan effects Big Policy, but the Clean Air Act only authorized EPA to select the "best system of emission reduction." The statutory text was too vague to support EPA's regulatory regime.

Justice Gorsuch concurred, joined by Justice Alito, and set out a full-throated articulation of the major questions doctrine and his view of its basis in constitutional law.

Justice Kagan dissented, joined by Justices Breyer and Sotomayor. She argued that the Clean Power Plan fits well within valid congressional authorization, and that the Court has no business second-guessing the judgments of Congress and EPA on something as important as greenhouse gas regulation.