Monday, July 29, 2019
Judge James S. Boasberg (D.D.C.) ruled today that the Secretary of Health and Human Services violated the Administrative Procedure Act in approving a state's proposed work requirements for its Medicaid recipients.
The ruling in Philbrick v. Azar comes just months after the court struck HHS's approvals for Arkansas's and Kentucky's proposed work requirements.Those rulings are now on appeal to the D.C. Circuit.
The government didn't change its position or arguments from the earlier cases, suggesting that it's banking on higher courts to rule in its favor and uphold the approvals.
Judge Boasberg ruled here, as in the earlier cases, that HHS didn't sufficiently consider the purpose of the Medicaid program--to provide health care for the financially needy--in granting the approvals for work requirements. The court noted that the requirements mean that Medicaid beneficiaries lose benefits, not gain them, in direct contradiction to the purpose of the program.
Here's the court's summary:
Plaintiffs argue that the Secretary's approval of New Hampshire's plan suffers from the same deficiency [as the Arkansas and Kentucky plans] and thus must meet the same fate. The Court concurs. On their face, these work requirements are more exacting than Kentucky's and Arkansas's, mandating 100 monthly hours--as opposed to 80--of employment or other qualifying activities. They also encompass a larger age range than in Arkansas, which applied the requirements only to persons 19 to 49. Yet the agency has still not contended with the possibility that the project would cause a substantial number of persons to lose their health-care coverage. That omission is particularly startling in light of information before the Secretary about the initial effects of Arkansas's markedly similar project--namely, that more than 80% of persons subject to the requirements had reported no compliance for the initial months, and nearly 16,900 people had lost coverage. The agency's rejoinders--that the requirements advance other asserted purposes of Medicaid, such as the health and financial independence of beneficiaries and the fiscal sustainability of the safety net--are identical to those this Court rejected with respect to HHS's 2018 approval of Kentucky's program.
The government will surely appeal this ruling, too, and try to get the D.C. Circuit or, ultimately, the Supreme Court to bite at its arguments.
Saturday, July 27, 2019
The Supreme Court late Friday granted the administration's motion for a stay of the district court's permanent injunction, affirmed by the Ninth Circuit, prohibiting the administration from reprogramming funds to build a border wall. The ruling is a significant victory for President Trump. It means that the administration can go ahead with its plans to reprogram funds and build portions of the wall.
This ruling doesn't end the case. But it strongly suggests that any further ruling from the Court will also favor the administration.
The case, Trump v. Sierra Club, involves the Sierra Club's challenge to the administration's reprogramming of $2.5 billion from military accounts to build a border wall. The administration moved to reprogram funds after Congress granted the administration only $1.375 billion (of the $5.7 billion requested by the administration), and restricted construction to eastern Texas, for border wall construction. As relevant here, the administration announced that it would transfer $2.5 billion from Defense Department accounts to the Department of Homeland Security. In order to get the money in the right account, DoD had to transfer funds under Section 8005 of the DoD Appropriations Act of 2019. That section authorizes the Secretary of Defense to transfer up to $4 billion "of working capital funds of the Department of Defense or funds made available in this Act to the Department of Defense for military functions (except military construction)," so long as the Secretary determines that "such action is necessary in the national interest." The funds can be used "for higher priority items, based on unforeseen military requirements, than those for which originally appropriated and in no case where the item for which funds are requested has been denied by the Congress."
The Sierra Club sued, arguing that the transfer violated the law, because wall funding wasn't "unforeseen" and because Congress had previously denied requested wall funding. The district court entered a permanent injunction, and the Ninth Circuit affirmed. The government filed an application for a stay with the Supreme Court.
A sharply, and ideologically, divided Court granted the stay. The Court (the majority comprised of Chief Justice Roberts and Justices Thomas, Alito, Gorsuch, and Kavanaugh) gave only this explanation in its short opinion: "Among the reasons is that the Government has made a sufficient showing at this stage that the plaintiffs have no cause of action to obtain review of the Acting Secretary's compliance with Section 8005." This probably refers to the government's argument that the Sierra Club wasn't within the "zone of interests" protected by Section 8005, and therefore wasn't a proper party to bring the case. It may also refer to the government's argument that the district court and the Ninth Circuit misread the "unforeseen" and "has been denied by the Congress" language in Section 8005. (The government offered a much narrower interpretation of those phrases than the lower courts adopted.)
The Court left the door open for Supreme Court review on a regular writ of certiorari. But given the ruling and alignment in its order granting the stay, it seems unlikely that the Court will rule against the administration.
Justices Ginsburg, Sotomayor, and Kagan wrote (without explanation) that they would have denied the stay. Justice Breyer offered a middle ground: allow the administration to move forward with the contracts it needs to build under its strict timeline, but not allow it to actually begin construction until we get a final say-so from the Court.
Sunday, June 30, 2019
Judge Haywood S. Gilliam, Jr., (N.D. Cal.) issued a permanent injunction on Friday halting the Trump Administration's efforts to reprogram Defense Department funds to construct portions of a border wall. The ruling largely incorporates the court's reasoning from its earlier preliminary injunction.
The court declined to stay the injunction pending appeal. This means that the injunction will stay in place unless and until the Ninth Circuit vacates it.
The court ruled that Trump Administration officials "are enjoined from taking any action to construct a border barrier in the areas Defendants have identified as El Paso Sector 1, Yuma Sector 1, El Centro Sector, and Tucson Sectors 1-3 using funds reprogrammed by DoD under Sections 8005 and 9002 of the Department of Defense Appropriations Act, 2019."
At the same time, the court denied the plaintiffs' request for a declaratory judgment concerning the government's invocation of Sections 8005 and 9002 beyond those sectors, its invocation of Section 284 (but only because it didn't have to rule on this, see below), and its compliance with the National Environmental Policy Act.
The ruling does not stop the Administration from using other, valid sources of funding for the wall. Thus, the ruling does not stop the Administration from using $1.375 "for the construction of primary pedestrian fencing, including levee pedestrian fencing, in the Rio Grande Valley Sector" under the Consolidated Appropriations Act of 2019 (although that funding comes with its own statutory restrictions). It also does not stop the Administration from using "[a]bout $601 million from the Treasury Forfeiture Fund."
But those together don't come anywhere close to the $5.7 billion sought by the President in the CAA process. That's why this ruling is such a blow to the Administration's effort to build a border wall.
Importantly, the ruling is not based on the President's use of "emergency" power or the President's determination of what's in the "national interest." Instead, the court ruled that the reprogramming violated other statutory provisions.
Here's a quick review of the relevant statutory issues:
Sections 2005, 2009, and 284
Under Section 284, "[t]he Secretary of Defense may provide support for the counterdrug activities . . . of any other department or agency of the Federal Government" if "such support is requested . . . by the official who has responsibility for [such] counterdrug activities." 10 U.S.C. Sec. 284. But the Administration didn't (and doesn't) intend to use appropriated funds under Section 284 for a border wall. Instead, as the court said, "every dollar of Section 284 support to DHS and its enforcement agency, CBP, [for construction of the wall] is attributable to reprogramming mechanisms."
One of those mechanisms is Section 8005 of the 2019 DOD Appropriations Act. That provision authorizes the Secretary of Defense to transfer up to $4 billion "of working capital funds of the Department of Defense or funds made available in this Act to the Department of Defense for military functions (except military construction)." Under the provision, the transfer must be (1) either (a) DOD working capital funds or (b) "funds made available in this Act to the [DOD] for military functions (except military construction)," (2) first determined by the Secretary of Defense as necessary in the national interest, (3) for higher priority items than those for which originally appropriated, (4) based on unforeseen (5) military requirements, and (6) in no case where the item for which funds are requested has been denied by Congress.
The court ruled in its earlier order granting a preliminary injunction that the plaintiffs are likely to show that the funds were denied by Congress (because Congress considered, and denied, full funding for the wall); that the transfer is not based on "unforeseen military requirements" (because there was nothing "unforeseen" about this, as evidenced by "the Administration's multiple requests for funding for exactly that purpose dating back to at least early 2018"); and that the Administration's interpretation of Section 8005 would raise constitutional questions (because that interpretation would "authorize the Acting Secretary of Defense to essentially triple--or quintuple, when considering the recent additional $1.5 billion reprogramming--the amount Congress allocated to this account for these purposes, notwithstanding Congress's recent and clear actions in passing the CAA, and the relevant committees' express disapproval of the proposed reprogramming," and "reading Section 8005 to permit this massive redirection of funds under these circumstances likely would amount to an 'unbounded authorization for Defendants to rewrite the federal budget'" in violation of the separation of powers).
In yesterday's order granting a permanent injunction, the court also rejected the Administration's effort to use Section 9002 of the DOD Appropriations Act of 2019 as a mechanism for reprogramming, because "Section 9002 authority . . . is subject to Section 8005's limitations."
Given that the government acknowledged that "all of the money they plan to spend on border barrier construction under Section 284 is money transferred into the relevant account under Sections 8005 and 9002 . . . the Court's ruling as to Sections 8005 and 9002 obviates the need to independently assess the lawfulness of Defendants' invocation of Section 284."
Section 2808 authorizes the Secretary of Defense to "undertake military construction projects, and may authorities the Secretaries of the military departments to undertake military construction projects, not otherwise authorized by law." 10 U.S.C. Sec. 2808. The provision requires that the President first declare a national emergency under the National Emergencies Act. The court previously ruled that "it is unclear how border barrier construction could reasonably constitute a 'military construction project' such that Defendants' invocation of Section 2808 would be lawful." The court incorporated that reasoning into its order granting a permanent injunction.
NEPA requires the government to undertake an environmental impact assessment of agency actions. The court ruled previously that DHS validly waived NEPA's requirements as to the wall, and that the actions therefore don't violate NEPA. It incorporated that reasoning on Friday.
Thursday, June 27, 2019
In its highly anticipated opinion in Department of Commerce v. New York on the issue of whether the decision by Secretary of Commerce Wilbur Ross to include a citizenship question on the main census questionnaire for 2020 is lawful, the Court held that given the "unusual circumstances" of the case, the matter should be remanded to the agency to provide a "reasoned explanation" for its decision pursuant to the Administrative Procedure Act (APA), thus affirming the district court on this point.
Chief Justice Roberts's opinion for the Court is relatively brief — 29 pages — but the brevity is undercut by the shifting alliances within the opinion's sections and the additional 58 pages of opinions concurring in part and dissenting in part.
Recall the basic issue from oral argument: whether the challengers had standing, the actual enumeration requirements in the Constitution, Art. I, § 2, cl. 3, and Amend. XIV, § 2, and the nonconstitutional issues centering on the Administrative Procedure Act. The equal protection argument receded into the background on appeal, but has re-emerged in other proceedings.
After explaining the facts and procedural history, including the rather unusual question of whether the Secretary of Commerce, Wilbur Ross, should be deposed, the Court unanimously held the challengers had standing, rejecting the government's contrary contention: "we are satisfied that, in these circumstances, respondents have met their burden of showing that third parties will likely react in predictable ways to the citizenship question, even if they do so unlawfully and despite the requirement that the Government keep individual answers confidential."
A majority of the Court, Roberts joined by Thomas, Alito, Gorsuch, and Kavanaugh — held that the Enumeration Clause did not provide a basis to set aside the determination of Wilbur Ross. The majority held that the Constitution vests Congress with virtually unlimited discretion to conduct the census, and that Congress has delegated this broad authority to the Secretary of Commerce. The majority stated that "history matters" so that "early understanding and long practice" of inquiring about citizenship on the census should control.
A notably different but numerically larger — 7 Justices — rejected the government's contention that the discretion given by Congress to the Secretary of Commerce is so broad as to be unreviewable. There is "law to apply" and the statute provides criteria for meaningful review. Only Justices Alito and Gorsuch disagreed with this conclusion.
And yet another majority, the same majority as the holding for no claim under the Enumeration Clause — Roberts was joined by Thomas, Alito, Gorsuch, and Kavanaugh — rejected the claim "at the heart of this suit" that Secretary Ross "abused his discretion in deciding to reinstate the citizenship question." Essentially, this majority held that because the statute gives the Secretary to make policy choices and "the evidence before the Secretary hardly led ineluctably to just one reasonable course of action."
That same majority rejected the claim of violations of the APA by Secretary Ross in the collection of information and data, and even if he did so, it was harmless.
Finally, the Chief Justice's opinion for the Court — this time with a majority of Justices Ginsburg, Breyer, Sotomayor, and Kagan, considered the district judge's conclusion that the decision of the Secretary of Commerce, Wilbur Ross, rested on a pretextual basis. The Court's opinion reviewed the evidence presented to the district court:
That evidence showed that the Secretary was determined to reinstate a citizenship question from the time he entered office; instructed his staff to make it happen; waited while Commerce officials explored whether another agency would request census-based citizenship data; subsequently contacted the Attorney General himself to ask if DOJ would make the request; and adopted the Voting Rights Act rationale late in the process. In the District Court’s view, this evidence established that the Secretary had made up his mind to reinstate a citizenship question “well before” receiving DOJ’s request, and did so for reasons unknown but unrelated to the VRA.
After considering other evidence, the Court concluded:
Altogether, the evidence tells a story that does not match the explanation the Secretary gave for his decision. In the Secretary’s telling, Commerce was simply acting on a routine data request from another agency. Yet the materials before us indicate that Commerce went to great lengths to elicit the request from DOJ (or any other willing agency). And unlike a typical case in which an agency may have both stated and unstated reasons for a decision, here the VRA enforcement rationale—the sole stated reason—seems to have been contrived.
We are presented, in other words, with an explanation for agency action that is incongruent with what the record reveals about the agency’s priorities and decisionmaking process. It is rare to review a record as extensive as the one before us when evaluating informal agency action— and it should be. But having done so for the sufficient reasons we have explained, we cannot ignore the disconnect between the decision made and the explanation given. Our review is deferential, but we are “not required to exhibit a naiveté from which ordinary citizens are free.” United States v. Stanchich, 550 F. 2d 1294, 1300 (CA2 1977) (Friendly, J.). The reasoned explanation requirement of administrative law, after all, is meant to ensure that agencies offer genuine justifications for important decisions, reasons that can be scrutinized by courts and the interested public. Accepting contrived reasons would defeat the purpose of the enterprise. If judicial review is to be more than an empty ritual, it must demand something better than the explanation offered for the action taken in this case.
In these unusual circumstances, the District Court was warranted in remanding to the agency . . . .
Thus the Court remanded the decision to the agency for further explanation. To be sure, this conclusion and section seems inconsistent with the "abuse of discretion" section finding no "abuse of discretion." And notably, Chief Justice Roberts is the only Justice supporting both of those conclusions.
Also notably, the Court's opinion does not comment on any of the recently revealed evidence or new proceedings - updates shortly.
Monday, June 24, 2019
The Supreme Court ruled today that a federal criminal law that enhances criminal penalties for using, carrying, or possessing a firearm in connection with any federal "crime of violence or drug trafficking crime" was unconstitutionally vague. The ruling strikes the law.
The case, United States v. Davis, tested the federal law that enhances penalties (over and above a defendant's base conviction) for using, carrying, or possessing a firearm "in furtherance of" any federal "crime of violence or drug trafficking crime." The statute then defines "crime of violence" in two subparts, an "elements clause" and a "residual clause." Under the act, a crime of violence is "an offense that is a felony" and
(A) has as an element the use, the attempted use, or threatened use of physical force against the person or property of another, or
(B) that by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.
The Court ruled the residual clause, (B), unconstitutionally vague.
Justice Gorsuch wrote for the Court, joined by Justices Ginsburg, Breyer, Sotomayor, and Kagan. He started by noting that the vagueness doctrine is designed to protect due process and the separation of powers:
In our constitutional order, a vague law is no law at all. Only the people's elected representatives in Congress have the power to write new federal criminal laws. And when Congress exercises that power, it has to write statutes that give ordinary people fair warning about what the law demands of them. Vague laws transgress both of those constitutional requirements. They hand off the legislature's responsibility for defining criminal behavior to unelected prosecutors and judges, and they leave people with no sure way to know what consequences will attach to their conduct. When Congress passes a vague law, the role of the courts under our Constitution is not to fashion a new, clearer law to take its place, but to treat the law as a nullity and invite Congress to try again.
Justice Gorsuch compared the residual clause to similar language that the Court ruled unconstitutionally vague in Johnson v. United States (defining "violent felony" as a "serious potential risk of physical injury to another") and Sessions v. Dimaya (defining "crimes of violence" for many federal statutes). He rejected the government's argument that the courts should interpret the residual clause on a case-by-case basis (to determine in any individual case whether the crime fit the definition), concluding that reading the act's text, context, and history, the act "simply cannot support the government's newly minted case-specific theory." He also rejected the government's constitutional avoidance argument, "doubt[ing] [that] the canon could play a proper role in this case even if the government's reading were 'possible.'" That's because "no one before us has identified a case in which this Court has invoked the canon to expand the reach of a criminal statute in order to save it."
Justice Kavanaugh dissented, joined by Chief Justice Roberts and Justice Thomas and Alito. Justice Kavanaugh distinguished Johnson and Dimaya, arguing that "[t]hose cases involved statutes that imposed additional penalties based on prior convictions," while "[t]his case involves a statute that focuses on the defendant's current conduct during the charged crime." "The statute here operates entirely in the present[, and] [u]nder our precedents, this statute therefore is not unconstitutionally vague." He also pointed to the statute's impact on crime rates, and many years of application of it:
[One] cannot dismiss the effects of state and federal laws that impose steep punishments on those who commit violence crimes with firearms.
Yet today, after 33 years and tens of thousands of federal prosecutions, the Court suddenly finds a key provision of Section 924(c) to be unconstitutional because it is supposedly too vague. That is a surprising conclusion for the Court to reach about a federal law that has been applied so often for so long with so little problem. The Court's decision today will make it harder to prosecute violent gun crimes in the future. The Court's decision also will likely mean that thousands of inmates who committed violent gun crimes will be released far earlier than Congress specified when enacting Section 924(c). The inmates who will be released early are not nonviolent offenders. They are not drug offenders. They are offenders who committed violent crimes with firearms, often brutally violent crimes.
A decision to strike down a 33-year-old, often-prosecuted federal criminal law because it is all of a sudden unconstitutionally vague is an extraordinary event in this Court. The Constitution's separation of powers authorizes this Court to declare Acts of Congress unconstitutional. That is an awesome power. We exercise that power of judicial review in justiciable cases to, among other things, ensure that Congress acts within constitutional limits and abides by the separation of powers. But when we overstep our role in the name of enforcing limits on Congress, we do not uphold the separation of powers, we transgress the separation of powers.
Chief Justice Roberts did not join the portion of Justice Kavanaugh's dissent that argues that the statute is saved under the unconstitutional avoidance canon.
June 24, 2019 in Cases and Case Materials, Congressional Authority, Courts and Judging, Due Process (Substantive), Executive Authority, News, Opinion Analysis, Separation of Powers | Permalink | Comments (0)
Friday, June 21, 2019
House Judiciary Chair Jerry Nadler is preparing to sue former White House Counsel Don McGahn over McGahn's refusal to testify based on a White House invocation of absolute executive privilege, according to Politico.
According to Politico's story, Nadler says that Hope Hicks's "blanket refusal to tell lawmakers about her tenure in the West Wing is the real-life illustration Democrats needed to show a judge just how extreme the White House's blockade on witness testimony has become."
Cipollone asserted the same "absolute executive privilege" over Hicks's testimony this week. Cipollone wrote to Nadler in advance of Hicks's scheduled testimony:
Ms. Hicks is absolutely immune from compelled congressional testimony with respect to matters occurring during her service as senior adviser to the President. . . . That immunity arises from the President's position as head of the Executive Branch and from Ms. Hicks's former position as a senior adviser to the President. "Subjecting a senior presidential advisor to the congressional subpoena power would be akin to requiring the President himself to appear before Congress on matters relating to the performance of his constitutionally assigned functions."
As the Department has recognized, "[w]hile a senior presidential adviser, like other executive officials, could rely on executive privilege to decline to answer specific questions at a hearing, the privilege is insufficient to ameliorate several threats that compelled testimony poses to the independence and candor of executive councils." . . .
Because of this constitutional immunity, and in order to protect the prerogatives of the Office of President, the President has directed Ms. Hicks not to answer questions before the Committee relating to the time of her service as a senior adviser to the President. . . .
Hicks nevertheless testified in a closed hearing this week. (The full transcript is here.) But White House attorneys repeatedly asserted absolute executive privilege in support of Hicks's refusal to answer a host of questions. Here's the first exchange between Nadler and a White House attorney:
Nadler: It's a matter of public record. Why would you object?
Purpura: Mr. Chairman, as we explained in Mr. Cipllone's letter yesterday, as a matter of longstanding executive branch precedent in the Department of Justice practice and advice, as a former senior adviser to the President, Ms. Hicks may not be compelled to speak about events that occurred during her service as a senior adviser to the President. That question touched upon that area.
Nadler: With all due respect, that is absolute nonsense as a matter of law. . . .
According to Politico, Nadler thinks that Hicks's refusal to answer such basic and silly questions as whether an Israel-Egypt war broke out while she worked in government vividly illustrates how extreme the White House's "absolute executive privilege" is--and provides good fodder for the House's lawsuit against McGahn.
Meanwhile, Republicans on the House Oversight Committee issued a Minority Report on the Committee's resolution recommending that the House find AG William Barr and Commerce Secretary Wilbur Ross in contempt for failing to comply with a Committee subpoena for documents related to the addition of the citizenship question on the census. Among other points, the Report argues that the Committee wrongly inferred that the White House waived executive privilege:
As a "fundamental" privilege rooted in constitutional separation of powers, executive privilege ought to be afforded serious consideration. In addition, because an executive privilege waiver should not be lightly inferred, the Committee should be careful in imputing a waiver for failure to comply with Committee Rule 16(c). The Committee's contempt citation errs in concluding unilaterally that executive privilege can be waived when the President does not invoke executive privilege in accordance with Committee rules.
Thursday, June 20, 2019
The Supreme Court today rejected a nondelegation challenge to a provision in the federal Sex Offender Registration and Notification Act that authorized the Attorney General to "specify the applicability" of the registration requirement under the Act to pre-Act offenders. We last posted on the case--an analysis of the oral arguments--here.
The ruling leaves the nondelegation standard in place, but perhaps not for long. There are three clear votes (Chief Justice Roberts and Justices Thomas and Gorsuch), and probably a fourth (Justice Alito), to reevaluate and tighten up the standard. If Justice Kavanaugh, who was recused from today's ruling, joins those four, the Court will likely take a new approach to nondelegation in coming Terms, and sharply restrict Congress's authority to delegate powers to executive agencies. Depending on the approach, this could take down any number of federal statutes that give discretion to executive agencies.
In short: We still have an "intelligible principle" approach to the nondelegation doctrine, which permits Congress to delegate broad authority and discretion to executive agencies. But that's likely to change soon.
The case, Gundy v. United States, tested SORNA's delegation to the AG as a violation of the separation of powers. In short, Gundy argued that Congress ceded away too much law-making authority to the Executive Branch when it authorized the AG to "specify the applicability" of the Act's registration requirement to pre-Act offenders.
The Court ruled 5-3 (Justice Kavanaugh recused) to uphold the delegation.
Justice Kagan wrote the plurality opinion, joined by Justices Ginsburg, Breyer, and Sotomayor. The plurality said that SORNA's delegation to the AG satisfied the long-standing nondelegation doctrine test--that a congressional act that delegates authority to the Executive Branch with "intelligible principles" does not violate the separation of powers. Justice Kagan wrote that SORNA's delegation provided "intelligible principles," because it only delegated to the AG the power to determine when (but not if) SORNA's registration requirement would apply to pre-Act offenders. She argued that Congress authorized this flexibility because of the possible logistical issues for some pre-Act offenders (those who have been released from prison, e.g.) to register. She wrote that this understanding of the delegation is confirmed by the Act's test and legislative history, and by the Court's interpretation of the delegation in Reynolds v. United States.
Justice Alito concurred in the result, but wrote separately to say that he'd be willing to consider the "intelligible principle" approach to the nondelegation doctrine in an appropriate case.
Justice Gorsuch dissented, joined by Chief Justice Roberts and Justice Thomas. Justice Gorsuch argued that the "intelligible principle" approach to the nondelegation doctrine allows too much congressional delegation to the Executive Branch and violates the separation of powers.
Saturday, June 15, 2019
The Office of Legal Counsel late yesterday issued an opinion giving its reasons why the Treasury Department doesn't have to comply with House Ways and Means Committee Chair Richard Neal's request, authorized by federal law, for President Trump's tax returns. We last posted on the controversy here.
The opinion is the culmination of breathtaking efforts by the Trump Administration to protect President Trump's tax returns from the Committee. Why breathtaking? Because federal law says that Treasury "shall furnish" (as in must furnish) the returns upon the request of the Committee Chair.
26 U.S.C. Sec. 6103 says that Treasury "shall furnish" tax-return information "[u]pon written request from the chairman of the Committee on Ways and Means of the House of Representatives." Chair Neal issued the requisite written request, stating that he sought the returns in order to investigate how the IRS audits presidents' tax returns. So far, Treasury declined to turn them over, saying that Chair Neal's request lacks a "legitimate legislative purpose," and that the Office of Legal Counsel would soon elaborate. Yesterday's opinion is that elaboration.
OLC's opinion riffs on Treasury's well worn claim--that Neal's request for the returns doesn't serve a "legitimate legislative purpose," and therefore Treasury can ignore the mandatory language (quoted above) in federal law.
In short, the opinion says that while Chair Neal claimed that he sought the returns to investigate how the IRS conducts audits of presidents (a legitimate legislative purpose), Chair Neal's real reason for requesting the returns is to release them to the public--and that's not a legitimate legislative purpose. The opinion draws on statements by Neal and other Democrats in the prior Congress suggesting that they'd like to publicize President Trump's tax returns when they gain a majority in the House. The memo says that this creates a mismatch between Chair Neal's stated reason for requesting the returns (to investigate how the IRS conducts audits) and his real reason (simply to publicize the President's returns).
The opinion cites several reasons why OLC believes that Chair Neal's stated reasons aren't his real reasons. First, OLC says that Chair Neal didn't also request other information, like IRS audit procedures. Next, it says that Chair Neal requested six years of the President's returns, even though "only the last two years correspond to his time in office." Third, OLC argues that the request focuses on just one taxpayer, President Trump, and not other Presidents and Vice-Presidents. OLC also notes that "the Chairman's request appeared to be 'perfectly tailored' to accomplish the Chairman's long-standing and avowed goal, namely 'to obtain and expose the President's tax returns.'"
Given that the courts are quite deferential to Congress in determining the scope of its own investigation authority, you might wonder where the administration gets off second-guessing Congress's motives. That is: Why does the administration think it can be less deferential to Congress regarding Congress's reasons for conducting an investigation? Here's part of the reason:
Allowing a congressional committee to dictate when Treasury must keep tax information confidential and when it must disclose such information would impermissibly intrude on executive power by ceding control to the Committee over ensuring that section 6103 is implemented in a manner consistent with the constitutional limitations.
Here's the rest:
Separated from the democratic process, the federal courts are not well equipped to second-guess the action of the political branches by close scrutiny of their motivations. . . .
These same limitations do not apply to the Executive Branch, which operates as a politically accountable check on the Legislative Branch. The Founders separated the President from the Congress, giving him "a separate political consistency, to which he alone was responsible," and "the means to resist legislative encroachment" upon his duty to executive the laws. The head of the Executive Branch, who is elected separately from Congress, ultimately must answer to the people for the manner in which he exercises his authority. The separation of powers would be dramatically impaired were the Executive required to implement the laws by accepting the legitimacy of any reason proffered by Congress, even in the face of clear evidence to the contrary. In order to prevent the "special danger . . . of congressional usurpation of Executive Branch functions," we believe that Treasury must determine, for itself, whether the Committee's stated reason reflects its true one or is merely a pretext.
Next step: Look for the Committee to seek to enforce Chair Neal's request in court.
Friday, June 14, 2019
The Fourth Circuit this week rejected an as-applied Commerce Clause challenge to the Matthew Shepard & James Byrd, Jr. Hate Crimes Prevention Act of 2009. The divided court (2-1) ruled that the Act, which criminalizes certain hate-crimes based on sexual orientation, fell within Congress's Commerce Clause authority.
As the court noted, this is the first federal appeals court ruling on "[w]hether the Hate Crimes Act may be constitutionally applied to an unarmed assault of a victim engaged in commercial activity at his place of work . . . ."
The case, United States v. Hill, turned on the Act's "jurisdictional element," which requires a commercial connection--but, importantly, by its plain terms not necessarily a "foreign" or "inter-state" commercial connection. It's that lack of a textual "foreign" or "inter-state" commercial connection that divided the majority and dissent. The majority held that the jurisdictional element, as applied to this case, fell within Congress's Commerce Clause authority, even without a specific textual required a "foreign" or "inter-state" commercial connection. The dissent said not.
The case arose when James Hill III physically and violently assaulted Curtis Tibbs, a co-worker at an Amazon fulfillment center, because Tibbs is gay. (Hill didn't deny this; indeed, he boasted about it.) Hill repeatedly punched Tibbs in the face, causing significant bruising, cuts, and a bloody nose. Tibbs left his shift to go to the hospital for treatment, and the facility shut down the area of the assault for 30 to 45 minutes to clean blood off the floor.
Because Tibbs worked as a "packer," preparing goods for interstate shipment, and because Virginia doesn't have a hate-crimes law that criminalizes assault because of sexual orientation, the federal government charged Hill under the Shepard & Byrd Act. The government relied on a "jurisdictional element" in the Act that requires that the defendant's behavior "interfere[d] with commercial or other economic activity in which the victim [was] engaged at the time of the conduct."
Hill was convicted, but the district court granted is motion for a judgment of acquittal, holding that the Act was unconstitutional as applied to Hill. The Fourth Circuit reversed.
The court ruled that the Hill's assault met the jurisdictional element (because Tibbs was packing goods for shipment in commerce), and that the jurisdictional element fell within Congress's Commerce Clause authority.
[W]hen Congress may regulate an economic or commercial activity, it also may regulate violent conduct that interferes with or affects that activity. Hence, if individuals are engaged in ongoing economic or commercial activity subject to congressional regulation--as Tibbs was at the time of the assault--then Congress also may prohibit violent crime that interferes with or affects such individuals' ongoing economic or commercial activity, including the type of bias-motivated assaults proscribed by the Hate Crimes Act.
The court rejected Hill's argument that the assault didn't have a substantial effect on commerce because the facility as a whole still met its shipments:
That Amazon was able to absorb the impact of Tibbs' absence without missing any key shipping deadlines and that the fulfillment center's performance during the shift impacted by Tibbs' assault was in-line with its performance during other shifts does not call into question this determination. On the contrary, the Supreme Court and this Court repeatedly have clarified that Congress may regulate interferences with commerce, even if the effect of the interference on interstate commerce in an individual case is "minimal." . . . .
Similarly, this Court has held that, in as-applied Commerce Clause challenges, "the relevant question . . . is not whether one particular offense has an impact on interstate commerce, but whether the class of acts proscribed has such an impact."
The court acknowledged the importance of the jurisdictional element in the case--and, by extension, to any congressional act--writing that the "Defendant has not identified any case--nor have we found any such case--in which a federal criminal statute including an interstate commerce jurisdictional element has been held to exceed Congress's authority under the Commerce Clause."
Judge Agee dissented, arguing that the jurisdictional element "does not limit the class of activities being regulated to acts that fall under Congress' Commerce Clause power" and that "the root activity . . . regulated in this case--a bias-motivated punch--is not an inherently economic activity." As to the jurisdictional element, Judge Agee argued that it is different than other jurisdictional elements in this statute and in other statutes, and that it sweeps beyond Congress's power to regulate inter-state or foreign commerce:
In contrast, [the jurisdictional element here] is a distinct outlier without an interstate or foreign commerce statutory nexus. Nor is the unrestricted phrase "commercial or other economic activity" one of the categories the Supreme Court has identified as an area Congress can regulate under its Commerce Clause power. By [the jurisdictional element's] plain terms, it contains no jurisdictional nexus to Congress' authority under the Commerce Clause that thus fails under Lopez to be a "jurisdictional element" that has "an explicit connection with or effect on interstate commerce." This textual difference is meaningful . . . .
Wednesday, June 12, 2019
President Trump today formally asserted executive privilege over documents related to the Commerce Department's addition of a citizenship question on the 2020 Census. The assertion, communicated by the Commerce Department, comes after the Justice Department informed House Oversight Committee Chair Elijah Cummings late yesterday that it would ask the President to assert executive privilege if the Committee proceeded with a contempt vote against AG William Bar and Commerce Secretary Wilbur Ross.
In yesterday's letter, Assistant AG Stephen Boyd wrote,
a limited subset of the documents is protected from disclosure by the deliberative process, attorney-client communications, or attorney work product components of executive privilege. These are the kind of materials that the Executive Branch regularly and appropriately withholds in connection with oversight matters, because the disclosure of such information would have a significant chilling effect on future deliberations among senior executive branch officials, and would compromise the confidentiality on which the Executive Branch's attorney-client relationships depend. . . .
The Committee has failed to abide by the constitutionally mandated accommodation process by declining to negotiate over the scope of the subpoenaed materials or to recognize legitimate executive branch interests, as well as by its premature decision to schedule a contempt vote. In the face of this threatened contempt vote, the Attorney General is now compelled to request that the President invoke executive privilege with respect to the materials . . . .
Accordingly, I hereby advise you that the President has asserted executive privilege over the specific subset of the documents identified by the Committee in its June 3, 2019 letter--documents that are clearly protected from disclosure by the deliberative process, attorney-client communications, or attorney work product components of executive privilege. In addition, I advise you that the President has asserted executive privilege over the balance of the Department's documents responsive to the Committee's April 2, 2019 subpoena. As the Attorney General indicated in his letter to you yesterday, this protective assertion of executive privilege ensures the President's ability to make a final decision whether to assert privilege following a full review of these materials.
Monday, June 10, 2019
The Supreme Court ruled today that federal law does not borrow state labor law on the Outer Continental Shelf. The unanimous ruling reverses the Ninth Circuit.
Given the unusual statutory provision at issue, and given the federal enclave status of the OCS, the ruling is quite narrow, based only on the particular statutory language, and does not say anything more general about the Court's preemption or federalism jurisprudence.
The case, Parker Drilling Management Services, Ltd. v. Newton, tested an unusual provision in federal law that applies to the OCS. That provision says that the laws of the adjacent state will apply to the OCS "[t]o the extent that they are applicable and not inconsistent with [federal law]." In other words, federal law applies on the OCS, and federal law borrows state law when it's "applicable and not inconsistent with" federal law.
So what happens when state law is more generous to workers than federal law? Does the state law apply (as it would under ordinary preemption analysis), or does the federal law apply?
A unanimous Supreme Court said that federal law applies. Justice Thomas, writing for the Court, noted first that the OCS is a federal enclave, where only federal law applies. (Remember, under the Act federal law borrows state law as its own.) He said that in that situation, ordinary preemption analysis doesn't apply; instead, the Court needs to determine what the phrase "applicable and not inconsistent" means in a location where the default is that only federal law applies.
Taken together, these provisions convince us that state laws can be "applicable and not inconsistent" with federal law under [the Act] only if federal law does not address the relevant issue. As we have said before, [the Act] makes apparent "that federal law is 'exclusive' in its regulation of [the OCS], and that state law is adopted only as surrogate federal law." [The Act] extends all federal law to the OCS, and instead of also extending state law writ large, it borrows only certain state laws. These laws, in turn, are declared to be federal law and are administered by federal officials. Given the primacy of federal law on the OCS and the limited role of state law, it would make little sense to treat the OCS as a mere extension of the adjacent State, where state law applies unless it conflicts with federal law. That type of pre-emption analysis is applicable only where the overlapping, dual jurisdiction of the Federal and State Governments makes it necessary to decide which law takes precedence. But the OCS is not, and never was, part of a State, so state law has never applies of its own force.
Wednesday, June 5, 2019
Check out the latest podcast from Prof. Harry Litman's outstanding Talking Feds, High Crimes and Misdemeanors, featuring Prof. Laurence Tribe, Dean Erwin Chemerinsky, and Congressman Jamie Raskin. The high-power panel talks, well, high crimes and misdemeanors.
Tuesday, June 4, 2019
White House Counsel Pat Cipollone wrote to House Judiciary Committee Chair Jerrold Nadler today that the White House had instructed former staffers Hope Hicks and Annie Donaldson not to comply with Committee subpoenas for documents related to their time in the White House. The instruction is categorical.
The reasons are all too familiar, even if ill defined. Cipollone wrote,
Th[e subpoenaed documents] include White House records that remain legally protected from disclosure under longstanding constitutional principles, because they implicate significant Executive Branch confidentiality interests and executive privilege.
It's not at all clear which documents Cipollone is referring to (all? some? which?), and it's not clear how "confidentiality interests" and executive privilege apply. Cipollone writes that this spaghetti-on-the-wall approach has DOJ's concurrence. He also writes that the White House and the Committee might be able to work something out.
Absent from this latest White House effort at frustrating congressional oversight is another familiar claim: that the Committee has no "legitimate legislative purpose" in the material. Perhaps that'll come out if and when this goes to litigation.
Monday, June 3, 2019
Judge Trevor N. McFadden (D.D.C.) ruled today that the House of Representatives lacks standing to challenge President Trump's reallocation of appropriated funds to build a border wall.
The ruling deals a sharp blow to the House in this case (although one imagines it'll be appealed). But other legal challenges against the reallocation of funds are still pending. And as Judge McFadden wrote in some detail, the House has other ways to hold President Trump to account.
Recall the background: Congress declined to appropriate the full amount of money that President Trump sought for the wall; President Trump then turned to three statutory authorities, including an "emergency" authority, that he claimed authorized him to reallocate funds appropriated for other purposes for the wall; and the House sued, arguing that the reallocation violated the Appropriations Clause and federal law.
Today's ruling in U.S. House of Representatives v. Mnuchin says that the House hasn't suffered a sufficient concrete injury because of President Trump's reallocation of funds to build the wall. In particular, the court said that the House hasn't suffered a "complete nullification" of its appropriations powers, and therefore hasn't suffered a sufficient injury to support standing:
But unlike the plaintiffs in Raines, the House retains the institutional tools necessary to remedy any harm caused to this power by the Administration's actions. Its Members can, with a two-thirds majority, override the President's veto of the resolution voiding the National Emergency Declaration. They did not. It can amend appropriations laws to expressly restrict the transfer or spending of funds for a border wall under Sections 284 and 2808. Indeed, it appears to be doing so. And Congress "may always exercise its power to expand recoveries" for any private parties harmed by the Administration's actions.
More still, the House can hold hearings on the Administration's spending decisions.
You might wonder why the (Republican) House had standing to challenge President Obama's decision to reallocate funds for the cost-sharing reduction payments under the Affordable Care Act, but the (Democratic) House has no standing to challenge President Trump's reallocation of funds for the wall.
I don't have a good answer, and I'm not sure the court in today's case does, either.
Judge McFadden seems to say that standing in the cost-sharing case was based on the House's constitutional (Appropriations Clause) claim, whereas this case looked more like a statutory claim (in which the House wouldn't have standing). But that seems weak: Judge McFadden himself says that the distinction between a constitutional claim and statutory claim is murky; and the constitutional claim in this case seems as strong, or stronger, than the constitutional claim in the cost-sharing case. Judge McFadden also says that allowing the House to sue here would also allow the House to sue over "every instance of the Executive's statutory non-compliance." But that's plainly not the case.
(Maybe you can understand the court's analysis better than I can. Take a crack: it's at pages 14 to 15 of the enclosed version of the opinion.)
Thursday, May 23, 2019
Judge Edgardo Ramos (S.D.N.Y.) rejected President Trump's motion for a preliminary injunction to halt congressional subpoenas directed at Deutsche Bank and Capital One for President Trump's financial records. We previously posted on the case here. The ruling is (another) sharp blow to President Trump and his efforts to block congressional subpoenas for his financial records.
Judge Ramos delivered his opinion from the bench and issued this short order.
The court ruled that President Trump was "highly unlikely" to succeed in his effort to halt the subpoenas. In response to the administration's now-standard (and bold and inventive) refrain in response to all House inquiries, the court said that Congress, indeed, had a "legitimate legislative purpose" in seeking the records. (Congress has broad investigative and oversight authority, cabined only by the loose "legitimate legislative purpose." But the Court has given that phrase an expansive reading, making President Trump's argument extremely tenuous--a last and desperate resort to shield his records from Congress.)
The ruling follows a similar ruling earlier this week from another court and another case in response to President Trump's effort to block a subpoena directed at his accountant, Mazars, for his financial records.
Wednesday, May 22, 2019
The State of New York and a host of other states and cities yesterday filed suit in the Southern District of New York to halt the implementation of President Trump's "conscience protection" regulations for health-care providers.
We posted on the regs here. In short, they require health-care providers and state and local recipients of certain federal funds to permit employees to opt out of providing health services if they have a religious objection to those services.
New York's lawsuit follows San Francisco's, filed earlier this month.
The plaintiffs in the New York case allege that the regs exceed statutory authority, violate federal law, are arbitrary and capricious, and violate the Spending Clause, the separation of powers, and the Establishment Clause.
Plaintiffs focus on the expansive definitions in the new regs that sweep beyond the administration's statutory authority, and HHS's ability under the regs to cut off vast amounts of federal funding to states and local governments who do not comply with the "conscience protections." They allege that they'll be harmed in their ability to enforce their own laws (which, among other things, require health-care providers to provide certain services, irrespective of religious beliefs) and in their receipt of federal funds.
In a bit of what-goes-around-comes-around, the plaintiffs draw on the Court's ruling in NFIB v. Sebelius--the Medicaid expansion portion of the ruling--to argue that the sheer amount of threatened federal funds under the new regs turns the condition on federal funding for state and local governments (compliance with the "conscience protections") from pressure into compulsion, in violation of federalism principles. They also contend that the conditions are vague, and that the administration impermissibly imposed them without prior congressional action in violation of the separation of powers. (This latter point is based on HHS's apparent ability to withhold funds not authorized for withholding under existing federal law.)
Tuesday, May 21, 2019
The Washington Post today reported on a confidential draft memo apparently prepared by the IRS that concludes that the IRS must turn over tax returns to certain congressional committees except if the President asserts executive privilege.
The memo doesn't mention the current spat over President Trump's tax returns between House Ways and Means Committee Chair Richard Neal (who requested the returns) and Treasury Secretary Steven Mnuchin (who refused to release them). But the memo makes clear: Apparently even the IRS thinks that it must turn over President Trump's taxes.
President Trump has not asserted executive privilege over the returns--and he probably couldn't (it doesn't seem to apply). Instead, Mnuchin (rather boldly) wrote to Neal that Neal's request was invalid, and that the IRS wouldn't comply with it, because it lacks a "legitimate legislative purpose."
The confidential draft memo reads:
The IRS discloses returns and return information when authorized or required by section 6103. Congress in its oversight and investigative role could seek to compel by subpoena a refusal to disclose returns or return information requested. The only basis for the agency's refusal to comply with a committee's subpoena would be the invocation of the doctrine of executive privilege.
Further on, the memo notes (correctly) that the statute requiring disclosure upon request "is mandatory, requiring the Secretary to disclose returns and return information requested by the tax writing Chairs." "On its face, the statute does not allow the Secretary to exercise discretion to disclosing the information provided the statutory conditions are met."
The memo also notes that the statute doesn't require the relevant committee chairs to state a reason for their request. "Unlike section 6103(f)(3), subsections (f)(1) and (f)(2) do not require the Ways and Means and Finance Chair of JCT Chief of Staff to include a reason or purpose for the request."
The memo almost certainly doesn't change things between Mnuchin and Neal, however. That's because the memo is only a draft, not (necessarily) the agency's final legal reasoning. It's also because Mnuchin claimed a different reason for not complying with Neal's request: the Committee lacks a "legitimate legislative purpose." So even if the memo reflects actual, current IRS thinking on the agency's obligation to turn over the returns, Congress might still be limited by its oversight and investigative authority--to things that have a "legitimate legislative purpose."
But as we've noted, that a bold and inventive claim with respect to President Trump's tax returns. The Court has given Congress wide berth in exercising its oversight authority. Unless things change at the Court, Neal's request for President Trump's tax returns falls well within it.
Monday, May 20, 2019
House Judiciary Committee Jerold Nadler and the Office of Legal Counsel today sparred over whether former White House Counsel Don McGahn enjoys absolute immunity from testimony before Nadler's Committee.
On the one side, OLC argues that "[s]ince the 1970s, [it] has consistently advised that 'the President and his immediate advisers are absolutely immune from testimonial compulsion by a Congressional committee' on matters related to their official duties." According to OLC, this is based in the separation of powers:
The President stands at the head of a co-equal branch of government. Yet allowing Congress to subpoena the President to appear and testify would 'promote a perception that the President is subordinate to Congress, contrary to the Constitution's separation of governmental powers into equal and coordinate branches." . . .
"For the President's absolute immunity to be fully meaningful," we explained, "and for these separation of powers principles to be adequately protected, the President's immediate advisers must likewise have absolute immunity from congressional compulsion to testify about the matters that occur during the course of discharging their official duties." . . .
Recognizing a congressional authority to compel the President's immediate advisers to appear and testify at the times and places of their choosing would interfere directly with the President's ability to faithfully discharge his responsibilities. It would allow congressional committees to "wield their compulsory power to attempt to supervise the President's actions, or to harass those advisers in an effort to influence their conduct, retaliate for actions the committee disliked, or embarrass and weaken the President for partisan gain." And in the case of the President's current advisers, preparing for such examinations would force them to divert time and attention from their duties to the President at the whim of congressional committees. This "would risk significant congressional encroachment on, and interference with, the President's prerogatives and his ability to discharge his duties with the advice and assistance of his closest advisers," ultimate subordinating senior presidential advisers to Congress rather than to the President.
The OLC explained that this absolute immunity was distinct from--and swept more broadly than--executive privilege. It also explained that absolute immunity only applied to the president's immediate advisers, not to appointees whose offices are created by Congress and who need Senate advice and consent.
Counsel to the President Pat Cipollone then wrote to Nadler that McGahn wouldn't testify, based on the OLC memo.
On the other side, Nadler shot to McGahn that the OLC memo "has no support in relevant case law, and its arguments have been flatly rejected by the courts." He also argued that executive privilege doesn't apply (although, to be clear, the OLC cites absolute immunity of close-level presidential advisers, not executive privilege).
Judge Amit Mehta (D.D.C.) rejected President Trump's effort to block a congressional subpoena directed to his accountant for his financial records. Judge Mehta also declined to stay his ruling pending appeal.
Unless President Trump can get immediate relief from the D.C. Circuit, the ruling means that his accountant, Mazars USA LLP, will have to turn over his financial records and related documents of President Trump and his business entities dating back to 2011.
The ruling is a significant defeat for the President, although it's sure to be appealed. In addition to dealing a blow to the President in this case, the ruling sets a standard for the President's more general complaint--lodged in each of his challenges to congressional oversight--that the congressional request lacks a "legitimate legislative purpose." The court's deferential, flexible approach to "legitimate legislative oversight" doesn't bode well for the President in these other challenges.
The case, Trump v. Committee on Oversight and Reform of the U.S. House of Representatives, arose when President Trump sued the Committee to halt its subpoena of financial records from Mazars, some of which dated back before his election. The court today ruled definitively in favor of the Committee.
The court ruled that the Committee asserted "facially valid legislative purposes," and thus had the power to subpoena Mazars:
Without a resolution as a point of reference, the logical starting point for identifying the purpose of the Mazars subpoena is the memorandum to Members of the Oversight Committee written by Chairman Cummings on April 12, 2019. Chairman Cummings penned that Memorandum in anticipation of issuing the subpoena. It is therefore the best evidence of the Committee's purpose. The Memorandum lists four areas of investigation: (1) "whether the President may have engaged in illegal conduct before and during his tenure in office," (2) "whether he has undisclosed conflicts of interest that may impair his ability to make impartial policy decisions," (3) "whether he is complying with the Emoluments Clauses of the Constitution," and (4) "whether he has accurately reported his finances to the Office of Government Ethics and other federal entities." Each of these is a subject "on which legislation could be had."
The court rejected the President's arguments (1) that the Committee is usurping executive and judicial functions ("Just because a congressional investigation has the potential to reveal law violations does not mean such investigation exceeds the legislative function."); (2) that the Committee is improperly investigating private affairs (because the subpoena is valid so long as it is related to a valid legislative purpose, which, as described above, it is); and (3) that the records request isn't "pertinent" (because it is relevant, and serves potential legislation, and because it's not the court's role to say so, anyway).
The court went on to reject the President's motion for a stay pending appeal, ruling, among other things, that he lacked a likelihood of success on the merits of his challenge.
Ninth Circuit Upholds Campaign Contribution, Firearms Ban for Foreign Nationals, Nonimmigrant Visa Holders
The Ninth Circuit last week upheld federal bans on campaign contributions and firearms possession by foreign nationals and nonimmigrant visa holders, respectively, against First and Second Amendment challenges. The ruling keeps the bans in place.
The case tested the federal ban on campaign contributions by foreign nationals. The court held first that Congress had authority impose the ban:
The federal government has the "inherent power as sovereign to control and conduct relations with foreign nations." . . . Thus, where, as here, Congress has made a judgment on a matter of foreign affairs and national security by barring foreign nationals from contributing to our election processes, it retains a broad power to legislate. . . . A prohibition on campaign donations and contributions by foreign nationals is necessary and proper to the exercise of the immigration and foreign relations powers.
The court held next that the ban didn't violate the First Amendment. The court relied on the Court's summary affirmance in Bluman v. FEC, writing that "although '[t]he precedential effect of a summary affirmance extends no further than the precise issues presented and necessarily decided by those actions,' Blumen did decide the precise issue present in this case."
As to the ban on firearm possession by nonimmigrant visa holders, the court acknowledged that there's some ambiguity about whether the law "burdens conduct protected by the Second Amendment" (the first step in the two-step Second Amendment analysis):
Some courts have read the historical right as one afforded only to citizens or those involved in the political community, while others have focused instead on an individual's connection to the United States. Nonimmigrant aliens, like those unlawfully present, are neither citizens nor members of the political community.
Still, the court assumed that the Second Amendment applied and moved to the second step, application of intermediate scrutiny, and upheld the ban:
The government's interest in this case is straightforward. The government's interest is . . . crime control and maintaining public safety. . . .
Further, the statute reasonably serves this important interest. It carves out exceptions for visa holders who are less likely to threaten public safety. . . . We find this tailoring sufficient.