Friday, December 14, 2018
Judge Reed O'Connor (N.D. Tex.) today issued a sweeping and breathtaking ruling striking the entire Affordable Care Act. Judge O'Connor ruled that the individual mandate could no longer be supported by Congress's taxing power; that the individual mandate is not severable from the rest of the ACA; and that therefore the entire ACA must fail.
The case, Texas v. United States, arose after Congress passed the 2017 Tax Cuts and Jobs Act, which set the tax-penalty for noncompliance with the ACA's individual mandate at $0. Texas, a handful of other states, and a couple individuals sued, arguing that the individual mandate could no longer be supported by Congress's taxing power (as the Court held in NFIB), and, because it also couldn't be supported by Congress's Commerce Clause power (also as the Court held in NFIB), it was unconstitutional. Moreover, they argued that it was non-severable from the non-discrimination and community rating provisions of the ACA, and so therefore those provisions needed to fall, too.
The court agreed. Judge O'Connor ruled that the tax-penalty of the individual mandate could no longer be supported by Congress's taxing authority (in light of the $0 penalty in the 2017 tax act, which means that the penalty no longer raises money for the government, the touchstone for the taxing power). And because the mandate couldn't stand alone, without a tax penalty, because it can't be supported by the Commerce Clause, it is unconstitutional. But Judge O'Connor went a step farther and ruled that the individual mandate was non-severable from the entire ACA. The court looked to the statutory language (including congressional findings, which stated that the individual mandate was an essential part of the integrated ACA in order to ensure broad health insurance coverage and low costs), and the Court's ruling in NFIB to concluded that the entire Act was non-severable. As a result, the court struck the entire Act.
The ruling came as a declaratory judgment and summary judgment in favor of the plaintiffs, despite the fact that the plaintiffs originally sought only declaratory relief and a preliminary injunction.
Unless stayed pending appeal (not in this ruling), the ruling gives cover to the government to start to dismantle the entire ACA (or at least those provisions that it hasn't already started to dismantle).
Tuesday, December 11, 2018
Judge Ellen Segal Huvelle (D.D.C.) dismissed a suit challenging President Trump's Infrastructure Council under the Federal Advisory Committee Act.
The ruling in Food & Water Watch v. Trump arose out of the plaintiff's FACA challenge to the Council, which was (or would have been) designed to give the President advice on infrastructure policy. The plaintiff claimed that the Council was stacked with President Trump's friends, and thus violated FACA's membership and transparency requirements.
The problem: the Council never got off the ground. For that reason, the court said it wasn't a "committee" or even a "de facto committee" under FACA, and the court therefore lacked jurisdiction.
Judge Huvelle emphasized how narrowly courts interpret FACA in order to avoid a separation-of-powers problem. Citing In re Cheney, she wrote
Congress could not have meant that participation in committee meetings or activities, even influential participation, would be enough to make someone a member of the committee . . . . Separation-of-powers concerns strongly support this interpretation of FACA. In making decisions on personnel and policy, and in formulating legislative proposals, the President must be free to seek confidential information from many sources, both inside the government and outside.
The court also denied the plaintiff's request for further discovery.
December 11, 2018 in Cases and Case Materials, Congressional Authority, Courts and Judging, Executive Authority, Jurisdiction of Federal Courts, News, Opinion Analysis, Separation of Powers | Permalink | Comments (0)
Friday, December 7, 2018
If you want to know what William P. Barr, President Trump's nominee for Attorney General, thinks about congressional interference with executive-branch operations and the "unitary executive," check out his 1989 memo as assistant attorney general in the OLC. (Spoiler alert: He's an aggressive proponent of a unitary executive, in ways both familiar and less familiar in today's constitutional politics.)
Notably--and contrary to a trend among unitary executive advocates--he doesn't disavow Morrison v. Olson (at least not in this memo); he just says that most or all independent offices are distinguishable from the independent counsel (and therefore unconstitutional even under that case). Given the current political winds, it seems likely his position on Morrison will likely change. In any event, this doesn't necessarily say anything about his position on Special Counsel Mueller: Mueller was appointed pursuant to DOJ regs, not a congressional statute, so doesn't raise the same separation-of-powers concerns as the old independent counsel.
The memo outlines these "Common Legislative Encroachments On Executive Branch Authority":
- Interference with the President's Appointment Power, including incompatibility and ineligibility issues (e.g., appointing members of Congress to executive-branch commissions that have more than advisory roles), directing the president to appoint from an approved list of candidates, and delegations of authority to positions outside the executive branch (e.g., qui tam statutes).
- The creation of hybrid commissions that reach into executive authority.
- Attempts to constraint the president's "removal power."
- "Micromanagement of the Executive Branch," by mandating certain executive processes and bureaucratic organization.
- "Attempts to Gain Access to Sensitive Executive Branch Information."
- Legislative vetoes (even after Chadha).
- Requirements that executive officials submit legislation to Congress.
- Restrictions on the president's recess appointment power.
Wednesday, December 5, 2018
Check out Elizabeth Goitein's piece in The Atlantic on the president's statutory emergency powers, and their potential misuse. From the piece:
the president has access to emergency powers contained in 123 statutory provisions, as recently calculated by the Brennan Center for Justice at NYU School of Law, where I work. These laws address a broad range of matters, from military composition to agricultural exports to public contracts. For the most part, the president is free to use any of them; the National Emergencies Act doesn't require that the powers invoked relate to the nature of the emergency. Even if the crisis at hand is, say, a nationwide crop blight, the president may activate the law that allows the secretary of transportation to requisition any privately owned vessel at sea. Many other laws permit the executive branch to take extraordinary action under specified conditions, such as war and domestic upheaval, regardless of whether a national emergency has been declared.
Wednesday, November 21, 2018
Judge Bernard A. Friedman (E.D. Mich.) ruled that the federal criminal statute banning female genital mutilation exceeded Congress's authority and was therefore invalid. The ruling dismisses those counts in an indictment against Michigan doctors accused of performing the procedure.
The federal criminal ban reads,
Except as provided in subsection (b), whoever knowingly circumcises, excises, or infibulates the whole or any part of the labia majora or labia minora or clitoris of another person who has not attained the age of 18 years shall be fined under this title or imprisoned not more than 5 years, or both.
The government defended the statute under Congress's authority to enforce a treaty and its power to regulate interstate commerce. The court rejected both.
As to the treaty power, the court concluded that the statute wasn't rationally related to applicable provisions in the supporting treaty, the International Covenant on Civil and Political Rights. More, the court ruled that even if it were rationally related to the ICCPR, federalism principles restricted Congress from acting. That's because the U.S. entered the ICCPR with a reservation (valid under international law) that "this Convention shall be implemented by the Federal Government to the extent that it exercises legislative and judicial jurisdiction over the matters covered therein, and otherwise by state and local governments . . . ." And because intrastate criminal law is a traditional area for the states (and not the federal government), the reservation itself restricts Congress from acting. (Judge Friedman suggested that under Bond Congress might have lacked authority even without the reservation--just because the federal statute intrudes on states' exclusive authority over "local criminal activity.")
As to the Commerce Clause, the court ruled that the statute failed: FGM is not commerce (the government produced no evidence that it's done for money); there's no jurisdictional element in the statute; congressional fact-finding on the commercial connection was sparse; and FGM is a local activity that, without more, has no actual connection to the interstate economy.
Congress could certainly go back and fix any of this (if Judge Friedman is upheld on appeal). For example, it could clarify that the ICCPR bans FGM, and remove its reservation. Or it could incentivize states to criminalize FGM. As to the Commerce Clause, it could add a jurisdictional element and fact-finding--exactly what it did after the Court struck the Gun Free School Zone Act in Lopez. (It's not clear why the jurisdictional element wasn't in the act--enacted after Lopez--in the first place.)
Monday, October 29, 2018
The reported announcement that the United States is sending "5,200 troops, military helicopters and giant spools of razor wire to the Mexican border in the coming days to brace for the arrival of Central American migrants President Trump is calling 'an invasion," raises the question of Presidential authority under the Constitution.
Professor Rudesill (pictured) asks "What is the constitutional textual basis for key statutes that constrain the national security apparatus and condition the President’s ability to direct it – statutes that are neither spending limitations, nor war declarations or authorizations for the use of military force (AUMFs), nor militia laws?"
He notes that there are a series of such statutory frameworks, including the Posse Comitatus Act and its relatives which generally operates as a default ban on active duty federal armed forces engaging in law enforcement. He argues that the best textual footing for such statutes is Article I, Section 8, Clause 14 of the Constitution. This clause gives Congress the power “To make Rules for the Government and Regulation of the land and naval Forces.”
The statutory frameworks at the heart of the national security legal regime that find textual grounding in the Forces Clause are important to the republic at any moment. There are constant and enduring operational pressures and political incentives for the Executive Branch to disregard the law and its liberty/security balancing work. These statutory frameworks are of special importance, however, in a time of chronic national insecurity: war without end against transnational terrorist networks and within cyberspace, and the alarm and constant engagement of the military and intelligence apparatus they engender. These statutory frameworks safeguard liberty in the atmosphere of uncertainty and fear that national insecurity, together with dysfunctional government and volatile politics, produces. Such anxiety was not, of course, unknown to the Framers . . . .
He contends that Courts could take up the issues, but also Congress has an important role:
Congress’s authority to govern and regulate the land and naval forces and control their Commander in Chief is contingent. The Forces Clause does not stipulate a one-way ratchet toward greater liberty protections. Congress could choose not to use the Forces Clause’s authority – it could acquiesce to harsh presidential discipline of the military, authoritarian employment of it against the people, or reckless use of it abroad. Congress could use the Clause’s authority to weaken FISA, the Posse Comitatus Act, and other liberty-protecting laws. Or, Congress could choose to use the Clause’s authority actively – and more explicitly and consistently – to balance liberty and security considerations in a manner that protects both. The Clause’s potential, like the republic’s fate, ultimately resides with Congress and the love of liberty among the people the Article I branch represents, governs, and protects.
An interesting read as the composition of Congress is at issue in the midterm election.
Wednesday, October 10, 2018
In his opinion in Brackeen v. Zinke, United States District Judge for the Northern District of Texas, Reed O'Connor, entered summary judgment for the plaintiffs and found that portions of the Indian Child Welfare Act, ICWA are unconstitutional, specifically violating equal protection, the non-delegation doctrine of Article I, and the commandeering principle of the Tenth Amendment. Passed in 1978, the general purpose of ICWA is to prevent Native children from being removed from their families and tribes based on a finding that "an alarmingly high percentage of Indian families [were being] broken up by the removal, often unwarranted, of their children from them by nontribal public and private agencies” as Judge O'Connor's opinion acknowledged, quoting Adoptive Couple v. Baby Girl (2013) (quoting 25 U.S.C. § 1901(4)).
Judge Reed O'Connor, however, accepts an argument that was sidestepped by the United States Supreme Court in Baby Girl: that ICWA violates equal protection (applied to the federal government through the Fifth Amendment) by making a racial classification that does not survive strict scrutiny. Recall that in some briefs as well as in the oral argument, the specter of the racial classification was raised. In United States District Judge O'Connor's opinion, that specter is fully embodied. Judge O'Connor found that ICWA does make a racial classification, rejecting the government's view that the classification at issue was a political category. Judge O'Connor reasoned that ICWA defines Indian child not only by membership in an Indian child, but extends its coverage to children "simply eligible for membership who have a biological Indian parent." Thus, Judge O'Connor reasoned, ICWA's definition "uses ancestry as a proxy for race" and therefore must be subject to strict scrutiny. Interestingly, the United States government did not offer any compelling governmental interest or argued that the classification is narrowly tailored to serve that interest. Judge O'Connor nevertheless credited the Tribal Defendants/Intervenors assertion of an interest in maintaining the Indian child's relationship with the tribe, but found that the means chosen was overinclusive, concluding that
The ICWA’s racial classification applies to potential Indian children, including those who will never be members of their ancestral tribe, those who will ultimately be placed with non-tribal family members, and those who will be adopted by members of other tribes.
On the non-delegation claim, Judge Reed O'Connor found it fatal that ICWA allows Tribes to change the child placement preferences selected by Congress and which then must be honored by the states in child custody proceedings.
On the Tenth Amendment claim, Judge Reed O'Connor relied on the Court's recent decision in Murphy v. NCAA holding unconstitutional a federal law prohibiting states from allowing sports gambling regarding anti-commandeering, concluding that
Congress violated all three principles [articulated in Murphy] when it enacted the ICWA. First, the ICWA offends the structure of the Constitution by overstepping the division of federal and state authority over Indian affairs by commanding States to impose federal standards in state created causes of action. See 25 U.S.C. § 1915(a). Second, because the ICWA only applies in custody proceedings arising under state law, it appears to the public as if state courts or legislatures are responsible for federally-mandated standards, meaning “responsibility is blurred.” Third, the ICWA shifts “the costs of regulations to the States” by giving the sole power to enforce a federal policy to the States. Congress is similarly not forced to weigh costs the States incur enforcing the ICWA against the benefits of doing so. In sum, Congress shifts all responsibility to the States, yet “unequivocally dictates” what they must do.
[citations to Murphy omitted].
October 10, 2018 in Congressional Authority, Courts and Judging, Due Process (Substantive), Equal Protection, Family, Federalism, Fifth Amendment, Fundamental Rights, Nondelegation Doctrine, Opinion Analysis, Race, Tenth Amendment | Permalink | Comments (0)
Wednesday, October 3, 2018
The Supreme Court heard oral arguments yesterday in Gundy v. United States, the case testing whether the federal Sex Offender Registration and Notification Act delegated too much authority to the Attorney General to determine the Act's application to pre-Act offenders. Our preview is here.
If the arguments any any predictor, the Non-Delegation Doctrine challenge to the Act faces an uphill battle. Indeed, there was only one Justice, Justice Gorsuch, who seriously went to bat against the Act. And his problems with the Act sounded more in due process (void-for-vagueness), and not in the separation of powers or non-delegation.
The question for the Court was whether SORNA's delegation to the AG to determine the applicability of the Act to pre-Act offenders provided an "intelligible principle" to guide the AG's decision. If so, there's no delegation problem; if not, there's a violation of the Non-Delegation Doctrine. (That Doctrine seeks to preserve the separation of powers by preventing Congress from delegating too much law-making authority to the Executive Branch.)
The Court's approach will likely turn on two considerations. First, can the Court look to the Act in its entirety in determining whether Congress legislated with an "intelligible principle," or is it restricted to the particular provision that delegates authority to the AG to determine its application to pre-Act offenders? (Related: Should the Court seek to interpret the Act to avoid a delegation problem?) Court precedent and most of the Justice who spoke seemed to favor the former approach; only Justice Gorsuch spoke out forcefully in favor of the latter approach (and, again, his objections really sounded in due process, not the separation of powers). Next, does the Non-Delegation Doctrine apply differently to legislation that provides more serious enforcement than to legislation that provides less serious enforcement? In particular, is the Doctrine more rigorous when the delegation goes to the AG (as chief federal prosecutor of federal crimes, as opposed to an ordinary regulatory agency), because a vague delegation would put both the power to interpret the law and the power to prosecute the criminal law in the hands of one executive officer? Again, precedent and questions seemed to say no, and, again, only Justice Gorsuch seriously pushed back.
As far as the separation of powers goes, it's worth noting that if the Court rules that SORNA violates the Non-Delegation Doctrine, this is a net gain for the judicial branch: it means that the courts can play a more aggressive role than they have played in determining the authority of executive agencies in interpreting and executing the law. To that extent, we might consider this case alongside other challenges to the administrative state (challenges to the Chevron doctrine, challenges to Morrison v. Olson and independent agencies, etc.).
It's certainly possible that the Court might do some refining around the edges of the Non-Delegation Doctrine. (Maybe that's why the Court granted cert. Otherwise, the grant seems a mystery.) But it seems quite unlikely that the Court will hold the SORNA's delegation to the AG unconstitutional.
Monday, October 1, 2018
The Supreme Court will hear oral arguments tomorrow in Gundy v. United States, the case testing whether Congress violated the separation of powers by delegating too much authority to the Attorney General to determine whether the Sex Offender and Registration and Notification Act applies to pre-Act offenders. Here's my preview for the ABA Preview of United States Supreme Court Cases (with permission):
The Sex Offender Registration and Notification Act
In 2006, Congress enacted SORNA to “establish a comprehensive national system for the registration” of sex offenders. Before SORNA, every state had its own registration system, and the federal government required states to adopt certain unifying measures or lose certain federal funds. SORNA strengthened these baselines, but it also did more.
In particular, SORNA created—and required states to create, as a condition of receiving certain federal funds—criminal penalties for individuals who fail to comply with its registration requirements. SORNA created a federal three-tier system for classifying sex offenders based on the significance of their offense, and made it a federal crime to fail to register for a specified number of years (depending on the tier of the crime). (This was different than the classification system that many states previously used, which set requirements based on individualized risk assessments of the offenders.) The Act states that a person who (1) “is required to register under” SORNA; (2) “travels in interstate or foreign commerce”; and (3) “knowingly fails to register or update a registration as required by” SORNA is guilty of a federal crime punishable to up to ten years in prison. 18 U.S.C. § 2250(a). It also requires states (again, as a condition of receiving certain federal funds) to “provide a criminal penalty that includes a maximum term that is greater than 1 year for the failure of a sex offender to comply with” SORNA’s registration requirements.
But Congress didn’t specify whether these new criminal provisions would apply to pre-Act offenders. (The question was important: legislators estimated that there were more than 500,000 pre-Act offenders when Congress passed the law.) Instead, Congress left it to the Attorney General. SORNA says: “The Attorney General shall have the authority to specify the applicability of the requirements of this subchapter to sex offenders convicted before the enactment of this chapter . . . and to prescribe rules for the registration of any such sex offenders . . . .” 34 U.S.C. § 20913(d).
This gives the Attorney General quite a bit of discretion. It allows the Attorney General to apply SORNA to pre-Act offenders immediately, or later, or not at all. It also allows the Attorney General to make a decision at one time, but to change course later, or under any new President, with regard to whether and how SORNA’s registration requirements would apply to pre-Act offenders.
In fact, the Attorney General exercised this discretion, at least to some extent. Attorney General Alberto G. Gonzales issued an interim rule about six months after Congress passed SORNA stating that SORNA would apply to pre-Act offenders. Since then, different Attorneys General issued different guidelines as to how it would apply, particularly with regard to offenders who had been released from prison for longer than SORNA’s maximum registration periods (for example, a person who was released more than 25 years before Congress enacted SORNA, but who would be subject to a maximum 25-year registration period under SORNA). As relevant to this case, Attorney General Eric Holder issued guidance in 2010 that SORNA credit pre-Act offenders with their entire prior period in the community, regardless of what a local jurisdiction might decide.
In 2005, Herman Avery Gundy pled guilty in Maryland to sexual assault of a minor. He was sentenced to 20 years in prison, with ten years suspended and five years of probation.
In November 2010, Gundy completed his state sentence and was transferred to the custody of the Federal Bureau of Prisons to serve a related federal sentence. The Bureau of Prisons transferred Gundy from Maryland to a prison in Pennsylvania. In July 2012, it transferred him from Pennsylvania to a halfway house in New York to complete his sentence. Gundy was released on August 27, 2012. He remained in New York.
In October 2012, Gundy was arrested in New York and charged with violating SORNA’s federal criminal provision. The indictment alleged that Gundy (1) was “an individual required to register” under SORNA based on his 2005 Maryland sex offense, (2) traveled in interstate commerce, and (3) “thereafter resided in New York without registering” as required by SORNA.
Gundy moved to dismiss the indictment, arguing, among other things, that SORNA could not constitutionally apply to him, because Congress delegated too much authority to the Attorney General to make a fundamentally legislative decision about whether SORNA applied to pre-Act offenders. The district court initially dismissed the indictment, but later, on remand from the Second Circuit, rejected Gundy’s constitutional argument. The Second Circuit affirmed, and remanded the case for trial. Gundy was convicted, and the district court sentenced him to time served and five years of supervised release. Gundy appealed, again arguing that SORNA could not constitutionally apply to him. The Second Circuit again rejected this argument. This appeal followed.
In order to protect Congress’s lawmaking authority within our separation-of-powers system—and to ensure that Congress does not cede this authority to the Executive Branch—the Court has set a standard for congressional delegations: it requires Congress to provide “intelligible principles” whenever it delegates authority to enforce the law to agencies within the Executive Branch. This is called the “Nondelegation Doctrine.”
Historically speaking, the Nondelegation Doctrine has been loose and quite permissive, giving Congress wide berth. Thus, the Court has said that a congressional delegation satisfies the Nondelegation Doctrine “if Congress clearly delineates the general policy, the public agency which is to apply it, and the boundaries of th[e] delegated authority.” American Power & Light Co. v. SEC, 329 U.S. 90 (1946). To date, the Court has found only two statutory delegations that violated the Doctrine, and both of those provided almost no guidance to the Executive.
Still, Gundy contends that SORNA’s delegation to the Attorney General to determine the Act’s application to pre-Act offenders violates the Doctrine. Gundy argues first that SORNA provides no intelligible principles to the Attorney General, because it doesn’t say “whether he should make any pre-Act offenders register; which offenders should be required to register; or even what he must (or must not) consider in deciding these questions.” He says that even the government concedes that SORNA allows the Attorney General to take no action at all, to wait years before taking action, and to reverse course at any time. Gundy claims this unbridled authority “can only be characterized as ‘legislative’ power” in violation of the separation of powers.
Gundy argues next that the Court should apply a heightened nondelegation standard in this context, and that SORNA violates the heightened standard, too. In particular, Gundy claims that SORNA delegates “significant power” to the Attorney General “to make policy decisions that bear directly on an individual’s liberty . . . ; disturb settled expectations of law . . . ; and infringe states’ sovereign interests (by regulating purely intrastate conduct and dictating to states, as a condition of federal funding, how they must regulate and criminalize conduct within their own borders).” Gundy contends that these features of SORNA require a heightened nondelegation standard, and that SORNA fails, because “the statute gives the Attorney General no meaningful guidance as to how to exercise these vast powers.”
The government counters that SORNA satisfies the traditional Nondelegation Doctrine. The government says that the Act identifies the official to whom it delegates authority (the Attorney General), and that SORNA’s text and history sufficiently provide a “general policy” that the Attorney General should pursue in making the determination. The government claims that SORNA thus easily satisfies the deferential traditional nondelegation standard.
To illustrate its point, the government contends that SORNA provides the Attorney General the exact same discretion as a hypothetical (and valid) statute that required all pre-Act offenders to register but authorized the Attorney General to grant waivers. Under this hypothetical (and, again, valid) statute, “the scope of [the Attorney General’s] authority . . . would be the same.” The government says that if Congress can enact this hypothetical statute (which it can), then it can also enact SORNA.
The government argues next that the Court need not address Gundy’s argument about a heightened nondelegation standard. The government contends that SORNA does not raise especial concerns that would justify a heightened standard, that the Court has already rejected a heightened standard, and that SORNA would satisfy any standard, anyway.
This case addresses a key question left open the last time the Court took on SORNA, in Reynolds v. United States. 565 U.S. 432 (2012). In that case, the Court ruled that pre-Act offenders do not have to register under SORNA until the Attorney General validly specified that the Act’s registration provisions applied to them. In dissent, Justice Antonin Scalia, joined by Justice Ruth Bader Ginsburg, noted that SORNA potentially raised a nondelegation problem:
it is not entirely clear to me that Congress can constitutionally leave it to the Attorney General to decide—with no statutory standard whatever governing his discretion—whether a criminal statute will or will not apply to certain individuals. That seems to me sailing close to the wind with regard to the principle that legislative powers are nondelegable.
This case picks up that cue. That’s notable, because the Nondelegation Doctrine has been all but dormant since 1935. In that year, the Court ruled in Panama Refining Co. v. Ryan, 293 U.S. 388 (1935), and Schechter Poultry Corp. v. United States, 295 U.S. 495 (1935), that two different statutes were unconstitutional. Since then, the Court has not ruled a single act of Congress unconstitutional under the Doctrine. This case could resurrect this long-dormant doctrine.
This could be especially significant in the broader context of a Court that seems increasingly skeptical, even hostile, to aggressive agency rule-making—what some describe as impermissible “lawmaking”—within the Executive Branch. This hostility comes out in the increasingly common arguments from some quarters against judicial deference toward agency rule-making under so-called “Chevron deference.” Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc. 467 U.S. 837 (1984). Chevron deference says that the courts should defer to an agency’s interpretation of a statute, so long as the interpretation is reasonable. Opponents of Chevron deference call for greater judicial scrutiny of agency interpretations, in order to rein them in. (As this piece goes to print, Judge Brett Kavanaugh is fielding questions on this precise topic from Senators on the Judiciary Committee.) Arguments against Chevron deference share this feature with arguments against the deferential Nondelegation Doctrine: They both seek to control an Executive bureaucracy that some see as an unaccountable, lawmaking “fourth branch” of government.
Within this context, the Court’s ruling could contribute to a more general move by the Court to rein-in Executive agency actions. Such a move could shift power away from Executive agencies to Congress.
But on that point, it’s important to remember that in our separation-of-powers system there’s a third independent branch of government, the judiciary. And if the Court exercises its prerogative to shift power in this way—by tightening up the Nondelegation Doctrine, by doing away with Chevron deference, or by otherwise reining in agencies’ actions—it looks more like the Court is the branch that gets a boost in power.
Friday, September 28, 2018
Judge Emmet G. Sullivan (D.D.C.) ruled today in Blumenthal v. Trump that members of Congress have standing to sue President Trump for violations of the Foreign Emoluments Clause. At the same time, Judge Sullivan declined to rule on the President's other three arguments for dismissal--that the plaintiffs lack a cause of action, that they've failed to state a claim (because the President's business interests aren't "emoluments" under the Clause), and that injunctive relief sought is unconstitutional. Thus, the ruling is a set-back for the President, but Judge Sullivan may yet end up dismissing the case on other grounds.
We posted here on the earlier district court ruling that another Emoluments case, brought by Maryland and D.C., can move forward.
The Congressmembers' case alleges that President Trump's overseas business holdings and properties generate income and benefits for the President, without the consent of Congress, in violation of the Foreign Emoluments Clause. That Clause says:
No Title of Nobility shall be granted by the United States: And no Person holding any Office of Profit or Trust under them, shall, without the Consent of the Congress, accept of any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State.
The 201 plaintiffs seek declaratory and injunctive relief. They claimed that they were harmed (for standing purposes) because the President, by failing to seek congressional consent, denied each of them a "vote on the record about whether to approve his acceptance of a prohibited foreign emolument."
The court agreed:
[E]ach time the President allegedly accepts a foreign emolument without seeking congressional consent, plaintiffs suffer a concrete and particularized injury--the deprivation of the right to vote on whether to consent to the President's acceptance of the prohibited foreign emolument--before he accepts it. And although the injury is an institutional one, the injury is personal to legislators entitled to cast the vote that was nullified.
The court went on to say that standing didn't violate the separation of powers. The court held that the plaintiffs lacked an alternative legislative remedy, and that the case was appropriate for judicial review.
September 28, 2018 in Congressional Authority, Courts and Judging, Executive Authority, Jurisdiction of Federal Courts, News, Opinion Analysis, Separation of Powers, Standing | Permalink | Comments (0)
Wednesday, September 26, 2018
Senator Jeff Merkley today sued President Trump, Senate colleagues, and others in federal court (D.D.C.) to halt the confirmation process of Judge Brett Kavanaugh. Senator Merkley argues that the defendants' actions violate the separation of powers and the Senate's constitutional role in providing advice and consent on Judge Kavanaugh's nomination to the Supreme Court.
The lawsuit relates to the defendants' failure to produce documents, not the more recent sexual assault and misconduct allegations against Judge Kavanaugh. The government will surely file a motion to dismiss based on the political question doctrine (itself a separation-of-powers matter), among others. The outcome of the case (and the confirmation process more generally) will set the standards for document release and Senate advice-and-consent for future judicial nominations, by Republicans and Democrats alike.
Here's the gist:
This case arises from the direct and substantial interference by President Trump and other agents of the executive branch in the ability of the Senate to examine the record and evaluate the fitness of Judge Brett Kavanaugh, the President's nominee for a lifetime appointment as an Associate Justice of the Supreme Court of the United States. President Trump and agents of the executive branch interfered in the ability of Senator Merkley and the Senate to provide advice and consent by, inter alia, imposing a broad and unprecedented blockade on the Senate's and public's access to reams of key documents that directly bear on Judge Kavanaugh's views, experience, and character. This improper process regarding the production of relevant documents prevents Senator Merkley and his colleagues from properly exercising their constitutional obligation to provide advice and consent on the qualifications of the nominee and deprives them of the ability to fully assess the nominee's fitness to assume the position of an Associate Justice of the United States Supreme Court.
The President and officers of the executive branch have interfered in the Senate's advice and consent responsibility in three critical ways: encouraging the Senate Majority to not request documents related to Kavanaugh's time while serving as Staff Secretary to George W. Bush; blocking access to an extensive set of documents related to the nominee's views and actions while serving in President George W. Bush's Office of White House Counsel; and blocking full access by all Senators and the public to documents delivered to the Senate Judiciary Committee but marked "Committee Confidential."
Senator Merkley asks the court to order that
(a) Defendant Trump withdraw his excessive invocation of executive privilege and produce a privilege log for documents truly subject to executive privilege;
(b) Defendants McConnell, Grassley, Adams, and Stenger not hold or permit a vote on the nominee's confirmation, or otherwise act to advance the confirmation process, until the National Archives releases his records, including the records requested by Senator Grassley regarding the nominee's work at the Office of White House Counsel, and there is sufficient time for the U.S. Senate to review the documents and conduct a careful review of the newly released documents;
(c) National Archives expedite the production of the documents to the earliest date practical;
(d) Defendant Burck cease and desist from usurping the traditional role of the neutral professionals at the National Archives.
Saturday, August 18, 2018
The National Archives and Records Administration this week issued a backgrounder and update on the dispute over Judge Kavanaugh's records, with links to congressional requests and NARA responses. The statement comes at a time when Senate Democrats accuse Republicans of failing to seek and release most of Judge Kavanaugh's records, including, critically, documents related to his time as staff secretary to President Bush (which might shed light on his involvement, if any, in controversial Bush Administration policies).
In the usual course of things, the Chair of relevant congressional committees would request--and receive--all relevant docs from NARA on a nominee under the Presidential Records Act. That's what happened during other, most recent confirmation proceedings, including Justices Sotomayor's, Kagan's, and Gorsuch's. But not here.
NARA explained that it holds "several million pages of paper and email records related to Judge Kavanaugh." Still, Senator Grassley requested only about 900,000 of these (not related to Judge Kavanaugh's time as staff secretary). NARA says that expects to review and release about 300,000 pages by August 20, but can't release the remaining 600,000 pages until later, "by the end of October."
The Senate scheduled Judge Kavanaugh's hearings to begin on September 4.
At the same time, NARA explains that it can't respond to Democrats' requests for Judge Kavanaugh's records (including records relating to Judge Kavanaugh's time as staff secretary), because under the Presidential Records Act "consistent practice has been to respond only to requests from the Chair of Congressional Committees, regardless of which party is in power." Senate Democrats took the extraordinary step of filing a FOIA request, and Senator Schumer this week threatened to sue NARA to get the docs not requested by Senator Grassley, and to get them more quickly.
Finally, NARA explained that "a separate review . . . is also underway." In particular, a Bush Administration representative (William Burck) "requested and received from [NARA] a copy of the White House Counsel's Office and nomination records and has begun to provide copies of those records directly to the Senate Judiciary Committee." Burck is conducting his own review outside of the ordinary NARA process. NARA explained that this
is something that has never happened before. This effort by former President Bush does not represent the National Archives of the George W. Bush Presidential Library. The Senate Judiciary Committee is publicly releasing some of these documents on its website, which also do not represent the National Archives.
Tuesday, August 14, 2018
President Trump late yesterday issued a breathtaking constitutional signing statement on the John S. McCain National Defense Authorization Act for Fiscal Year 2019. The President called out dozens of provisions for impinging on the commander-in-chief authority, the foreign affairs authority, the appointments authority, executive privilege, and the President's authority to recommend legislation.
Perhaps most alarming, the President identified 18 separate sections that require public disclosure or reports to Congress on various topics as categorically "protected by executive privilege."
My Administration will treat these provisions consistent with the President's constitutional authority to withhold information, the disclosure of which could impair national security, foreign relations, law enforcement, or the performance of the President's constitutional duties.
The move pits the President's inherent Article II powers against Congress's powers to appropriate funds, its war powers and powers over the military, its foreign-relations powers, and its oversight authority (to say nothing of any interest or right that the people have in knowing what their government is up to). But unless Congress is willing to push back (for example, by issuing and enforcing subpoenas for reports required by the Act, but over which the President has claimed a categorical "executive privilege"), or unless a person or group has standing to challenge any of the President's rejection of funding restrictions or requirements or appointments matters, these claims will never see the inside of a courtroom.
If not, then the President will have effectively line-item vetoed a whopping 50 or more provisions of a single Act of Congress, with no check.
Thursday, August 2, 2018
Chief Judge Beryl A. Howell (D.D.C.) rejected a challenge to Special Counsel Robert Mueller's appointment under the Appointments Clause. The ruling, which came in response to a witness's challenge to a grand jury subpoena issued by Mueller, means that the witness--identified by several sources as Andrew Miller, a former associate of Roger Stone--will have to comply with the subpoena.
The ruling aligns with other district court rulings that upheld Mueller's appointment.
Miller challenged a grand jury subpoena issued by Mueller, arguing that Mueller was invalidly appointed under the Appointments Clause. Judge Howell rejected that claim. The court, relying on the factors in Morrison v. Olson, ruled that Mueller was an "inferior officer" and was validly appointed, pursuant to federal statute, by the head of a department. As to Miller's claim that DAG Rod Rosenstein wasn't the "Head of Department" for purposes of the Appointments Clause (because he was the DAG, not the AG), the court said that federal law authorizes the DAG to serve as Acting AG when the AG is recused, and that a different statutory provision allows the AG to delegate to the DAG authority to appoint the Special Counsel.
Wednesday, August 1, 2018
The Ninth Circuit struck another blow today against the administration's anti-sanctuary cities policy, ruling in San Francisco v. Trump that the President can't unilaterally withhold federal grants from sanctuary jurisdictions without Congress's say-so.
The ruling is just the latest in a line of similar rulings, and aligns broadly with the Seventh Circuit's ruling in the spring. This ruling is just a little bit different, however, in that it focuses principally on President Trump's original and sweeping Executive Order (and not AG Sessions's interpretive memo). The court rejects the government's attempt to narrow the test of the EO by focusing instead on AG Sessions's memo as the actual government policy. It said that the memo doesn't align with the EO (and is therefore itself ultra vires), and that in any event it's only a post-hoc justification to get the EO to pass muster in the courts.
While the ruling is an outright win for San Francisco and Santa Clara County, the court threw a bone to the administration by vacating the district court's nationwide injunction and remanding the case for reconsideration and further findings on that issue.
The facts--or at least their general outline--is all too familiar by now: In an effort to clamp down on sanctuary jurisdictions, the President ordered that sanctuary jurisdictions come into line with 8 U.S.C. Sec. 1373, which prohibits state and local jurisdictions from restricting their officers from communicating with federal immigration officials. (Other cases have also involved the "notice" and "access" conditions that AG Sessions purported to put on receipt of a certain federal grant in his memo. Those conditions required jurisdictions to provide notice to federal immigration enforcement officials of any detention, and access to state and local facilities for federal immigration enforcement. This ruling didn't deal with those, because it focused on the EO itself.)
The court simply held that under the separation of powers and Congress's Article I, Section 8, power of the purse, it's for Congress, not the Executive, to put conditions on federal spending. The court said that "because Congress has the exclusive power to spend and has not delegated authority to the Executive to condition new grants on compliance with Section 1373, the President's 'power is at its lowest ebb,'" under Justice Jackson's Youngstown framework. And at the lowest ebb, "[b]ecause the Executive Order directs Executive Branch administrative agencies to withhold funding that Congress has not tied to compliance with Section 1373, there is no reasonable argument that the President has not exceeded his authority." In sum:
Absent congressional authorization, the Administration may not redistribute or withhold properly appropriated funds in order to effectuate its own policy goals. Because Congress did not authorize withholding of funds, the Executive Order violates the constitutional principle of the Separation of Powers.
The court flatly rejected the administration's (pretty incredible) argument that its move to condition funds "is all bluster and no bite, representing a perfectly legitimate use of the presidential 'bully pulpit,' without any real meaning . . . .":
[E]ven if we ignore the statements made by and on behalf of the Administration outside the context of this litigation, the Administration's interpretation of the Executive Order strains credulity. And consideration of those statements suggests that the Administration's current litigation position is grounded not in the text of the Executive Order but in a desire to avoid legal consequences.
(Interestingly, the court said nothing about the constitutionality of Section 1373 itself. That provision is now questionable, in light of Murphy v. NCAA, as a possible "commandeering" of state governments in violation of the anti-commandeering principle. Judge Fernandez, in dissent, distinguished Murphy in a footnote by saying that the Court's articulated "principles behind the anticommnadeering rule" don't apply to Section 1373. But it's not clear how the plain ruling itself doesn't apply to Section 1373. More to come on this, I'm sure.)
The court then vacated the district court's nationwide injunction, because "the present record does not support a nationwide injunction." The court remanded "for a more searching inquiry into whether this case justifies the breadth of the injunction imposed."
(Along the way, the court also ruled that the plaintiffs had standing and that the case was ripe for judicial review.)
Judge Fernandez dissented, arguing that the case wasn't ripe and, in any event, that the EO was constitutional, because, by its plain terms, it only applies "to the fullest extent of the law."
Check out Prof. Michael Morley's new piece, Prophylactic Redistricting? Congress's Section 5 Power and the New Equal Protection Right to Vote, in the William & Mary Law Review.
Morley argues that traditional remedial features of Section 2 of the Voting Rights Act are getting squeezed from two sides: (1) Boerne and reduced congressional authority to enforce the Fourteenth and Fifteenth Amendments mean that the Court will likely give a narrower reading to Section 2 (focusing only on intentional discrimination); and (2) the Court's shift to a "pro-equality" (and away from a "pro-vote") approach to the right to vote mean that courts will likely say that any legislative expansions of the franchise have to be shared equally by all. Here's what to do about it:
Courts may apply section 2 more aggressively to defendant jurisdictions or officials that have a recent history of engaging in intentional racial discrimination concerning the right to vote. They should also be more willing to allow prophylactic applications of section 2 in circumstances where direct evidence of constitutional violations (that is, intentional discrimination) would be impracticable or impossible to uncover. Finally, remedies under section 2 should not be broader than necessary to achieve its important prophylactic purposes. Section 2 runs a risk: the more it deviates from the mandates of the Court's developing conception of equal protection, and does so in a race-conscious manner that almost invariably inures to the benefit of a particular political party, the greater skepticism it will trigger in the courts. It places courts in the difficult position of reshaping both the rules of elections and the shape of electoral districts to attempt to replicate what a fair electoral outcome in the absence of past and present society discrimination would look like. Such awesome power demands careful use.
Friday, July 6, 2018
Judge John A. Mendez (E.D. Cal.) yesterday granted part, but denied most, of the federal government's motion for a preliminary injunction against California's sanctuary-jurisdiction laws. The ruling is only preliminary--so goes only to the likelihood of success on the merits, and not the actual success on the merits--but it nevertheless signals the court's likely approach if and when it gets to the actual merits.
This is just the latest ruling where a state promoting a progressive immigration agenda draws on conservative-Court-created structural features of the constitution (here, federalism). In particular, Judge Mendez writes that Section 1373 (the federal prohibition on states prohibiting their officers from communicating with the feds about detained individuals in order to determine their immigration status) likely violates the Court-created anticommandeering principle in Printz and (just recently) Murphy.
The case, United States v. State of California, is the federal government's challenge to California's several sanctuary laws. Here they are, with the court's analysis, one at a time:
Assembly Bill 103's Direction for State AG Review of Detention Facilities. This provision directs the state attorney general to review and report on county, local, and private locked detention facilities used by the federal government to house detainees in civil immigration proceedings in the state. The court rejected the government's argument that this provision interfered with the federal government's exclusive authority in the area of immigration detention (and was thus preempted), because the provision amounted merely to funding an authority the state AG already had. "The Court finds no indication . . . that Congress intended for States to have no oversight over detention facilities operating within their borders. Indeed, the detention facility contracts [California] provided to the Court expressly contemplate compliance with state and local law."
Assembly Bill 405's Prohibition on Consent. This provision prohibits (on pain of fine) public and private employers from providing voluntary consent to an immigration enforcement agent to enter nonpublic areas of a job-site or to access an employer's records on its employees. The court said that the consent prohibition violated intergovernmental immunity, because "[t]hese fines inflict a burden on those employers who acquiesce in a federal investigation but not on those who do not."
Assembly Bill 405's Notice Requirement. This provision requires employers to provide notice to their employees "of any inspections of I-9 Employment Eligibility Verification forms or other employment records conducted by an immigration agency within 72 hours of receiving notice of the inspection." The court said that this prohibition was likely valid: Federal immigration law "primarily imposes obligations and penalties on employers, not employees. . . . [T]he Court finds no indication--express or implied--that Congress intended for employees to be kept in the dark."
Assembly Bill 405's Reverification Requirement. This limits an employer's ability to reverify an employee's employment eligibility when not required by law. The court said that it likely "stand[s] as an obstacle" to federal immigration law and is thus preempted.
Senate Bill 54's Prohibition on State Law Enforcement Providing Immigration Information to the Feds. This provision prohibits state law enforcement from providing certain information to federal immigration officials relating to a detained person, except as required by federal law. The court wrote that Section 1373 (which prohibits states from prohibiting their officials from sharing this kind of information) likely violates the anticommandeering principle under Murphy (the Court's most recent foray into the principle, in the New Jersey sports-gambling case), because that case held that anticommandeering applies equally when Congress tells states what they may not do. But ultimately the court dodged the anticommandeering question by giving Section 1373 a narrow reading and recognizing that SB 54 contained an exception for complying with federal law--and thus holding that the two are not in conflict. The court went on to say that SB 54 also does not create an obstacle to federal enforcement, because it merely means that state officials don't cooperate with federal enforcement (and not that they actively stand in the way of federal immigration enforcement).
Saturday, June 16, 2018
The Seventh Circuit this week denied the Justice Department's request to stay the nationwide injunction against the Department in Chicago's sanctuary cities case. The order says that the Seventh Circuit will wait until the Supreme Court rules in Trump v. Hawaii, the travel-ban case, before ruling on the issue.
Recall that a three-judge panel of the Seventh Circuit upheld a nationwide injunction issued by the district court against the Department enforcing two conditions imposed by the Attorney General on the DOJ-JAG/Byrne Grant program. DOJ filed a motion to stay the nationwide injunction pending appeal, and the full Seventh Circuit agreed to review the issue.
This latest round of jockeying came when DOJ sent a letter this week to the Seventh Circuit saying that if the Seventh Circuit didn't rule on its motion to stay the nationwide injunction by COB on June 18, DOJ would take it up with the Supreme Court. The Seventh Circuit interpreted the letter as a motion for an immediate ruling on DOJ's motion for a stay, and rejected it. The court said that it expected that the Supreme Court would have something to say about this in the travel-ban case, and it would await word from the high Court before ruling here.
The ruling makes it likely (or certain?) that DOJ will try to take this (the nationwide injunction) to the Supreme Court as early as Monday.
Saturday, June 9, 2018
Sixteen states plus the District of Columbia responded this week to the Justice Department's brief in the Texas Obamacare challenge. The intervenor-defendants argue that (1) the individual mandate remains within congressional authority under its taxing power (even post Tax Cuts and Jobs Act, which set the tax-penalty at $0), (2) if the individual mandate is unconstitutional, the remedy is to strike that portion of the TCJA setting the tax-penalty at $0 and reinstate the original tax amount (to save it), and (3) even if it's unconstitutional, the rest of the ACA is severable (and thus savable). The states also argue that the plaintiffs lack standing, because they can't be harmed by a $0 tax.
Here's the gist:
First, Plaintiffs are unlikely to prevail on the merits. Continuous production of revenues is not a constitutional requirement for a tax, and the minimum coverage requirement will continue to produce revenue for years to come. If the Court nevertheless concludes that the minimum coverage requirement will become unconstitutional once it ceases to generate revenue, under long-standing and controlling Supreme Court precedent, the proper remedy is to strike the unconstitutional amendment and revert back to hte prior statutory provision which was upheld in NFIB.
If the Court reaches the severability question, it should sever the unconstitutional provision and leave the remainder of the ACA intact, as the Supreme Court has done in almost every case over the past century. The touchstone for any decision about remedy is legislative intent, which a court cannot use its remedial powers to circumvent. Here, the Congress that passed the TCJA expressly and intentionally left the rest of the ACA untouched. Striking down the entire ACA would disregard that intent and impose an outcome that Congress chose not to achieve through the legislative process. Even if the severability inquiry turned on the intent of the Congress that enacted the ACA (and it does not), Plaintiffs have not come close to demonstrating that it is "evident" that Congress would have wished for the entire ACA to be struck down just because a later Congress reduced the tax for not maintaining health insurance to $0.
Friday, June 8, 2018
The federal government argued yesterday in the Texas Obamacare case that (1) Obamacare's individual mandate is now unconstitutional and (2) therefore the Obamacare pre-existing-conditions ("guaranteed issue") and "community rating" provisions must fall.
The filing (by the federal government as defendant in the case) is an unusual instance of the Justice Department refusing to defend a federal law in court. (Some states, led by California, have moved to intervene to defend the law.)
The filing is also notable for its attempt to pick off just three provisions of Obamacare--the individual mandate, the ban on pre-existing-conditions discrimination, and the community rating provision--while keeping the rest of the Act intact. (This contrasts with the plaintiffs' approach, which seeks to strike all of Obamacare. In this way, the federal government's position--as sweeping as it is--is nevertheless more modest than the position of Texas and the other plaintiffs in the case.)
Here's a summary of the federal government's argument:
1. The individual mandate as it stands effective January 2019 is unconstitutional. That's because Congress, in the Tax Cuts and Jobs Act, enacted earlier this year, eliminated the tax-penalty for not having health insurance beginning in January 2019. Without the tax-penalty, the individual mandate no longer can raise revenue for the federal government. If it can't raise revenue, it can't fall within Congress's power to tax. And, as the Court ruled in NFIB, it also can't fall within Congress's power to regulate interstate commerce. Therefore, the individual mandate, as it will read in January 2019, is unsupported by congressional authority, and is unconstitutional.
2. The requirements that health insurers accept individuals with pre-existing conditions (or the prohibition on discrimination by pre-existing conditions, the "guaranteed issue" provision) and that insurers charge rates within a particular range for a particular community (the "community rating" provision) are inseverable from the individual mandate. (This is the position that the federal government also took in defending the individual mandate in NFIB.) Here's why: Congress has authority under the Commerce Clause to prohibit discrimination and regulate insurance rates. But if Congress only enacted those provisions, without an individual mandate, rates would go through the roof. The only way to keep rates affordable is to require everybody (including people who are healthy now) to get into the insurance pool. That's the individual mandate. Thus, the individual mandate and the other two requirements go hand-in-hand in achieving Congress's goal under the ACA of keeping rates affordable. (The federal government also had a standing argument for why it's only challenging these two provisions: the individual plaintiffs in the case only alleged harms related to these two provisions, and not to the rest of Obamacare.)
3. Because the guaranteed-issue and community-rating provisions are inseverable from the unconstitutional individual mandate, they, too, must fall. But other key portions of Obamacare--including provisions "concerning various insurance regulations, health insurance exchanges and associated subsidies, the employer mandate and Medicaid expansion, and reduced federal healthcare reimbursement rates for hospitals"--are severable, and therefore can remain in place.
It's not clear from the filing whether and how this argument might affect other portions of Obamacare not mentioned, most notably the requirement that insurers allow parents to keep their children on their insurance until age 26.
The government opposed the plaintiffs' request for a preliminary injunction and instead argued that the court should issue declaratory relief, at least until January 2019.