Constitutional Law Prof Blog

Con Law Experts Oppose Mayorkas Impeachment

A group of con law experts wrote to House Speaker Mike Johnson and House Homeland Security Chairman Mark Green that there's no constitutional justification for impeaching Secretary of Homeland Security Alejandro Mayorkas. Here's the gist:

Simply put, the Constitution forbids impeachment based on policy disagreements between the House and the Executive Branch, no matter how intense or high stakes those differences of opinion.

Yet that is exactly what House Republicans appear poised to undertake. The charges they have publicly described come nowhere close to meeting the constitutional threshold for impeachment. Their proposed grounds for impeaching Secretary Mayorkas are the stuff of ordinary (albeit impassioned) policy disagreement in the field of immigration enforcement. If allegations like this were sufficient to justify impeachment, the separation of powers would be permanently destabilized. It is telling that there is absolutely no historical precedent for the impeachment charges that House Republicans have articulated. To the contrary, on the rare occasions that Members of the House have proposed impeaching executive officials for their handling of immigration matters, the House has properly retreated from that grave step.

Court to Test CFPB's Funding Mechanism

The Supreme Court will hear oral arguments on Tuesday in CFPB v. Community Financial Services Association, the case testing whether CFPB's funding mechanism violates the Appropriations Clause. Here's my preview, from the ABA Preview of United States Supreme Court Cases (with permission):

ISSUE

Does the CFPB’s funding mechanism violate the Appropriations Clause, and, if so, was the Fifth Circuit right to vacate the Payday Lending Rule?

FACTS

In 2010, in response to the 2008 economic crisis, Congress enacted the Dodd-Frank Wall Street Reform and Consumer Protection Act. Among many other things, the Act created the Consumer Financial Protection Bureau (CFPB) and vested it with authority to enforce over 18 federal statutes that were previously overseen by seven different agencies. Under the Act, the CFPB is an “independent bureau” within the Federal Reserve System.

In contrast to most federal agencies, which receive direct annual appropriations from Congress, the CFPB receives its funding directly from the Federal Reserve. Each year, the CFPB asks the Federal Reserve for funding in an amount up to 12 percent of the Federal Reserve’s operating expenses. The Federal Reserve, in turn, generates its budget through the operations of the Federal Reserve Banks. The Banks “buy and sell bonds and securities, receive fees for services provided to banks, credit unions and other depository institutions, and generate interest on loans to depository institutions.”

As part of the Act, Congress specified that the funds transferred to the CFPB “shall not be subject to review by” the House and Senate Appropriations Committees. But at the same time, the CFPB director must submit regular reports to and appear before other congressional committees to “justif[y]” the CFPB’s “budget requests of the previous year.” 12 U.S.C. § 5496(c)(2). Moreover, the Comptroller General (a congressional officer) must conduct annual audits of the CFPB and submit reports to Congress.

This unique funding mechanism is designed to help ensure that the CFPB can operate independently of political influences.

In 2017, the CPFB issued a final rule entitled “Payday, Vehicle Title, and Certain High-Cost Installment Loans” (the Payday Lending Rule). The Rule came in two parts. The first part prohibited lenders from making payday loans “without reasonably determining that consumers have the ability to repay the loans according to their terms.” 12 C.F.R. § 1041.4 (2018). (This portion of the Rule is called “the Underwriting Provision.”) The second part limited a lender’s ability to collect repayments through a borrower’s preauthorized account access. In particular, it prohibited lenders from trying to withdraw payments for loans from a borrower’s account after two consecutive withdrawal attempts failed for lack of sufficient funds. 12 C.F.R. § 1041.7. (This portion of the Rule is called “the Payment Provision.”) The CFPB later rescinded the Underwriting Provision, but ratified the Payment Provision and left it intact.

Two associations of companies regulated by the Payday Lending Rule sued the CPFB, arguing that the Payments Provision violated the Administrative Procedure Act and that it was invalid because the CFPB’s funding mechanism itself was invalid under several constitutional principles and provisions, including the Appropriations Clause. (In other words, because the CFPB was invalid, it’s Rule was invalid.) The district court ruled against the plaintiffs on all counts. The United States Court of Appeals for the Fifth Circuit reversed on the Appropriations Clause and vacated the Payday Lending Rule. (The Fifth Circuit ruled for the CFPB on the other counts.) This appeal followed.

CASE ANALYSIS

As a general matter, Congress has the power to appropriate and spend federal funds. The Appropriations Clause, in Article I, Section 9, Clause 7 of the Constitution, says, “No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law . . . .” This case tests that Clause’s application to an executive agency that receives its funding from another executive agency, the Federal Reserve, which itself earns money through the operation of the Federal Reserve Banks (and not direct annual congressional appropriations).

The government argues first that the constitutional text, history, and precedent all support the CFPB’s funding mechanism. As to text, the government claims that the Appropriations Clause “does not limit Congress’s authority to determine the specificity, duration, and source of appropriations.” It contends that the Constitution’s “special restriction” on appropriations for the military—that “no Appropriation of Money” to raise and support an army “shall be for a longer Term than two Years,” Article I, Section 8, Clause 12—“confirms that the Constitution otherwise leaves it to Congress to determine the specificity, duration, and source of appropriations.” As to history, the government asserts that ever since the Founding the government has funded agencies through lump-sum appropriations and fees, assessments, investments, and similar mechanisms, particularly for financial regulatory agencies. As to precedent, the government says that “other than the Fifth Circuit below, no court has ever held that an Act of Congress violated the Appropriations Clause.”

The government argues next that the plaintiffs and the Fifth Circuit “fail[ed] to grapple with” these sources. The government contends that the plaintiffs and the Fifth Circuit rested their conclusion only on the argument that the CFPB’s funding mechanism is “unprecedented.” But the government says that this is wrong: “the CFPB’s funding mechanism accords with Congress’s longstanding practice of authorizing agencies to spend money indefinitely from sources other than annual appropriations.” Moreover, the government contends that the mechanism squares with statutes funding other financial regulators, like the Office of the Comptroller of the Currency, the Federal Deposit Insurance Corporation, and the Federal Reserve Board.

Finally, the government argues that even if the CFPB’s funding mechanism is flawed, the Fifth Circuit erred in vacating the Payday Lending Rule. Instead of vacating, the government says that the lower court should have “excised and severed any problematic provisions” in the CFPB’s funding mechanism, and ruled only that the CFPB couldn’t use those provisions to enforce the Payday Lending Rule going forward. (Under this approach, Congress could rewrite the CFPB’s funding mechanism, and the CFPB could then enforce the Payday Lending Rule.) The government claims that this would have been consistent with historical practices when courts rule that executive branch officials spend public money in excess of a congressional appropriation. And the government says that vacatur (as the Fifth Circuit ruled) could “inflict[] significant disruptions on the Nation’s economy and the consumers, financial institutions, regulators, and others who have reasonably relief on the CFPB’s past actions.”

The plaintiffs counter that the CFPB’s funding mechanism violates the Appropriations Clause, because Congress ceded away its power of the purse to the CFPB. “The CFPB’s funding . . . is not ‘drawn . . . in Consequence of Appropriations made by Law’ . . . but rather taken based on the agency’s say-so.” The plaintiffs contend that this is especially problematic, because it is hard-wired into federal law, and because this unique funding mechanism gives the CFPB both appropriations power and executive power—“combining the purse with the sword in the most dangerous manner.” The plaintiffs claim that the government offers no limit “that would prevent Congress from writing the President a blank check,” and that there there is no precedent in our history for such an agency. “Whether one looks back in time or down the slippery slope, the threat to separated powers and individual liberty is obvious.”

The plaintiffs argue next that the CFPB is wrong to say that text, history, and precedent support its funding mechanism. They claim that the CFPB’s funding mechanism isn’t a valid exercise of congressional authority; instead, “it is a void delegation of exclusive legislative power” to the executive branch. Moreover, the plaintiffs say, contrary to the CFPB’s examples, there is no precedent for “permanently eliminating all fiscal oversight from both the People’s Representatives and the People themselves.” The plaintiffs contend that the CFPB can only support its funding mechanism based on “out-of-context dicta” from the Court’s cases and deference to the political process. But as to deference, the plaintiffs assert that the CFPB’s structure itself has warped the political process.

Finally, the plaintiffs argue that the government is wrong to say that the Fifth Circuit shouldn’t have vacated the Payday Lending Rule. The plaintiffs claim that the government ignores the fact “that critical defects” in the CFPB’s funding mechanism “can be cured only through legislative revision.” Moreover, they say that the APA requires courts to “set aside” invalid rules. And they claim that the government is wrong to worry about any economic impacts of vacating the Payday Lending Rule, because the plaintiffs challenged the Rule before it went into effect.

 

SIGNIFICANCE

Given the CFPB’s broad jurisdiction over consumer financial protection laws, and given the sweeping nature of the Fifth Circuit’s ruling, this case could have enormous consequences. Just since the Fifth Circuit vacated the Payday Lending Rule, defendants in several other CFPB enforcement cases have moved to dismiss based on that decision. If the Court affirms the Fifth Circuit’s ruling, we can expect all defendants in CFPB enforcement actions to move to dismiss. Such a ruling could effectively decimate the CFPB, unless Congress creates a new funding mechanism, and quickly. (To state the obvious: this seems unlikely in the current political climate.)

Such a result would sharply curtail federal consumer financial protection. It could also shock or destabilize the entire financial industry. That’s because regulated corporations adjusted their activities based on CFPB regulations. If those regulations go away, regulated corporations will re-adjust, affecting consumers and the financial markets as a whole. The government provided this example in its petition for certiorari: “If . . . regulations [making adjustments and exceptions to certain mortgage-related disclosure requirements] were vacated, mortgage lenders would have to immediately modify the disclosures they give millions of consumers each year, and borrowers could seek to rescind certain mortgage transactions that had relied on regulatory disclosure exceptions.” Moreover, because the Fifth Circuit vacated a past agency action, a ruling upholding it could threaten other past actions by the CFPB, as well.

Outside the CFPB, a ruling for the plaintiffs could threaten the funding mechanisms for certain other federal agencies that regulate financial markets, even the Federal Reserve. While funding mechanisms for other agencies are not before the Court—and while the plaintiffs do not appear to challenge them in this case—a Court ruling that strikes the CFPB funding mechanism could reach downstream to other federal agencies in future cases.

This is not the first time that the CFPB’s structure has come before the Court. Just three years ago, the Court ruled that the Bureau’s structure—in particular, its single director, who could be fired by the President only for cause—impermissibly interfered with the president’s power as chief executive. Seila Law LLC v. Consumer Financial Protection Bureau, 140 S. Ct. 2183 (2020). (The CFPB director’s “for cause” protection was another way that Congress sought to insulate the CFPB from political influences.) Moreover, this case and Seila Law are part of a larger trend by litigants and the Court to restrict the power of federal administrative agencies. (Indeed, there’s another important case on the Court’s docket this Term, Loper Bright Enterprises v. Raimondo, not yet set for argument, which could limit agencies’ discretion to interpret and apply federal law.)

That said, this move—vacating a CFPB regulation based on the Bureau’s funding mechanism—may be a bridge too far for this Court. In addition to the reasons described above, I’ll add this: The Fifth Circuit’s ruling is, in fact, an extreme outlier for both its reasoning and its result. The D.C. Circuit and at least six district courts—every other court that considered the issue—ruled the other way.

Still, we’ve seen the Roberts Court in a variety of cases move aggressively to alter existing law; to effect significant political, social, economic, and environmental change; and to upset settled expectations in politics, the markets, and society. A ruling for the plaintiffs—based on a full-throated endorsement of the Fifth Circuit’s ruling, or based on some other more modest approach—shouldn’t be a surprise.

Supreme Court Strikes Biden Student-Debt Relief

The Supreme Court ruled on Friday that the Biden Administration's student-debt relief plan exceeded authority under the HEROES Act. That is: the Court said that the plan's illegal.

The ruling means that the plan won't go into effect. But President Biden quickly announced that his Administration would move to implement a similar plan under the Higher Education Act (which gives the Administration greater authority than the HEROES Act). But that'll take some time to implement, because it requires rulemaking processes. President Biden announced short-term relief in the interim.

Even these moves won't end the story, however. Given the political opposition to student-debt relief, we'll certainly see a spate of new lawsuits challenging any action the Administration takes.

The case, Biden v. Nebraska, tested the Secretary of Education's 2022 plan to cancel student-loan debt up to $10,000 for any borrower with income less than $125,000 (or $250,000 for couples) and up to $20,000 for any Pell Grant borrowers. All told, the plan would cancel about $430 billion in federal student loan debt, with about 90 percent of the benefits going to borrowers with incomes under $75,000.

As authority for the plan, the Secretary pointed to the HEROES Act. Under that Act, the Secretary "may waive or modify any statutory or regulatory provision applicable to the student financial assistance programs . . . as the Secretary deems necessary in connection with a war or other military operation or national emergency" and "as may be necessary to ensure" that student debtors "are not placed in a worse position financially in relation to that financial assistance because of their status as affected individuals."

States and individuals sued, arguing that the Secretary exceeded his authority under the HEROES Act. In particular, the plaintiffs said that the plan wasn't a "waiver" or "modification," but instead was a top-to-bottom overhaul of the law, in violation of the separation of powers. (The president can enforce the law, not make it.)

The Court agreed. The Court parsed the phrase "waive or modify" and concluded that the plan far exceeded anything that the phrase could support. In sum,

The Secretary's comprehensive debt cancellation plan cannot fairly be called a waiver--it not only nullifies existing provisions, but augments and expands them dramatically. It cannot be mere modification, because it constitutes "effectively the introduction of a whole new regime." And it cannot be some combination of the two, because when the Secretary seeks to add to existing law, the fact that he has "waived" certain provisions does not give him a free pass to avoid the limits inherent in the power to "modify." However broad the meaning of "waive or modify," that language cannot authorize the kind of exhaustive rewriting of the statute that has taken place here.

The Court went on to apply the major questions doctrine from West Virginia v. EPA. The Court said that the plan was unprecedented, and had "staggering" "economic and political significance," and that Congress had not clearly authorized it. Importantly, the Court rejected the government's argument that the major questions doctrine applied only to government regulatory programs, not government benefit programs.

Justice Barrett concurred, arguing that the major questions doctrine squares with textualism ("The doctrine serves as an interpretive tool reflecting 'common sense as to the manner in which Congress is likely to delegate a policy decision of such economic and political magnitude to an administrative agency.'") and the Court's power ("the major questions doctrine is neither new nor a strong-form canon," from footnote 2), and arguing that the major questions doctrine "reinforces" the Court's holding "but is not necessary to it."

Justice Kagan dissented, joined by Justices Sotomayor and Jackson. She argued that "the Court today exceeds its proper, limited role in our Nation's governance," first by accepting the case at all (because the states lack standing) and next by rejecting the plan, which "fits comfortably within" the HEROES Act authority.

 

District Court Rebuffs Challenge to Private Securities Regulator

The D.C. District ruled that a securities firm failed to show that the Financial Industry Regulatory Authority was likely unconstitutional. The court denied the firm's motion for a temporary restraining order against FINRA enforcement action.

The arguments against FINRA play on familiar separation-of-powers themes that the Supreme Court has developed and used in recent Terms to limit the power of administrative agencies. But those arguments haven't gained traction in challenges to FINRA, and the D.C. District's ruling in Scottsdale Capital Advisors v. FINRA aligns with other federal courts that have ruled FINRA constitutional.

FINRA is a private corporation that's responsible for regulating broker-dealers in the securities industry. Under the Securities and Exchange Act, FINRA enforcement actions are subject to internal review and appeal, and de novo appeal to the SEC. If the SEC rules against a firm, the firm can seek judicial review.

In this case, FINRA initiated enforcement action against Alpine Securities Corporation. Alpine moved for a TRO, arguing that FINRA was unconstitutional on several grounds. In particular, Alpine claimed that FINRA's double-insulation structure impermissibly encroached on executive authority, that FINRA board members are "officers" who haven't been validly appointed, that the Exchange Act improperly delegates lawmaking power to FINRA, that FINRA's proceedings violate due process and the right to a jury, and that forced association with FINRA violates the First Amendment.

The district court rejected all but the First Amendment claim on the ground that FINRA's not a state actor. (As to private non-delegation, the court said that the Act didn't impermissibly delegate lawmaking power to a private entity, because FINRA is subject to SEC control. But even assuming FINRA were a state actor, the court said that the Exchange Act didn't delegate lawmaking authority in violation of the non-delegation doctrine, because the Act gave FINRA "intelligible principles" to act.)

As to Alpine's First Amendment claim, the court said that the government had "a significantly compelling government interest embodied in the Exchange Act to justify mandatory FINRA membership": "to 'prevent fraudulent and manipulative acts and practices, promote just and equitable principles of trade, foster cooperation and coordination' among all industry players, 'remove impediments to and perfect the mechanism of a free and open market and a national market system, and, in general, to protect investors and the public interest."

Court Says Individual Can Sue to Enforce Rights Under Federal Nursing Home Reform Act

The Supreme Court ruled today that an individual can sue to enforce rights under the Federal Nursing Home Reform Act. The Court declined the defendant's invitation to rewrite the law on individual suits to enforce rights in spending-power legislation, and reaffirmed its long-standing approach to individual suits under such acts.

The ruling is a win for plaintiffs, insofar as it didn't disturb the Court's approach to individual lawsuits to enforce rights in conditioned-spending programs.

The case, Health and Hospital Corporation of Marion County v. Talevski, arose out of a nursing-home patient's lawsuit against the home for administering certain restraints and discharging him without meeting certain preconditions, both in violation of the FNHRA. The home argued in response that Talevski couldn't sue (under 42 U.S.C. Sec. 1983) to enforce provisions of the FNHRA, because Congress enacted the FNHRA under its spending power. (The FNHRA is a conditioned-spending program: Congress imposes conditions under the FNHRA on states when they accept federal funds--in this case, Medicaid funds--and the federal government can enforce those conditions by withholding federal funds. The conditions are different than an ordinary federal regulatory requirement, enacted under one of Congress's regulatory powers (like the Commerce Clause), because states that object to the conditions can opt out by declining federal funds.)

The home argued that individual plaintiffs could never sue under Section 1983 to enforce rights under conditioned-spending programs. The argument went like this: conditioned-spending programs are like contracts between the federal government and a state; an individual protected by anything in a conditioned-spending program is a third-party to the contract; and common law at the time of the adoption of Section 1983 did not allow third parties to sue to enforce contractual provisions.

The Court flatly rejected this argument. The Court said that the common law was ambiguous on this point, that a plaintiff's suit was more like a tort (not a third-party enforcement of a contract), and that Court precedent long recognized that individuals could sue to enforce rights in conditioned-spending programs.

The Court went on to apply that precedent and say that the FNHRA unambiguously conferred individual rights, and that nothing in the statute precluded private enforcement of those rights.

Justice Jackson wrote the majority opinion, joined by all but Justices Thomas and Alito. Justice Gorsuch wrote a concurrence arguing that these cases may raise anti-commandeering problems--an issue for another day. Justice Barrett wrote a concurrence, joined by Chief Justice Roberts, emphasizing that the standard for individual enforcement of rights in spending-power legislation is high.

Justice Thomas dissented, arguing that Congress's spending authority is much narrower than the Court has acknowledged, and that it doesn't include a regulatory power (including power to authorize individual lawsuits to enforce rights in conditioned-spending programs). Justice Alito also dissented, joined by Justice Thomas, arguing that the remedial scheme in the FNHRA forecloses any individual cause of action to enforce the rights in the Act.

Trump Lawyers Gripe to House Intel Chair about Mar-a-Lago Docs Investigation

Former President Trump's lawyers wrote to House Intel Committee Chair Mike Turner to complain about DOJ's investigation into Trump's unlawful retention and mishandling of classified documents at Mar-a-Lago.

In a typo-ridden, ten-page letter, the lawyers argue, in short, that classified documents ended up at Mar-a-Lago because of a rushed document-review process at the end of the Trump presidency (and not because of any illegal behavior), that DOJ botched the investigation from its inception, and that the investigation is politically motivated. They argue that Turner's committee should take over (after an investigation and report by "the intelligence community") and seek "a legislative solution" to document-handling procedures for the White House and former presidents.

Then the lawyers write that "DOJ should be ordered to stand down." The letter doesn't specify who should do the ordering. But certainly the lawyers know this most basic separation of powers principle: A congressional committee cannot order DOJ stand down.

Court Curtails EPA Authority Under Clean Water Act

The Supreme Court today curtailed EPA's authority to regulate wetlands under the Clean Water Act. The sharply divided ruling is a victory for property owners and a blow to federal regulatory authority over certain wetlands.

The case, Sackett v. EPA, tested whether and how EPA could regulate wetlands that aren't connected on the surface to "waters of the United States." Five justices said that EPA could only regulate wetlands that are connected on the surface to "waters of the United States." (Two of the five would've limited the Act even further, so that EPA couldn't regulate any wetlands, unless they were actually navigable waters of the United States.) Four justices disagreed and argued that the CWA authorized EPA to regulate wetlands that were connected to waters of the United States, even if that connection wasn't on the surface.

All nine agreed that the lower court applied the wrong test.

The CWA prohibits the discharge of pollutants into "navigable waters," defined as "the waters of the United States" and waters that are "adjacent" to them. EPA regulations provide that "adjacent wetlands are covered by the Act if they 'possess a "significant nexus" to' traditional navigable waters." This means that wetlands are "adjacent" when they "neighbor" covered waters, even if the wetlands and the covered waters are separated by dry land.

The plaintiffs, Michael and Chantell Sackett argued that EPA's regulation violated the CWA when EPA ordered them "to restore the Site," including wetlands, after they backfilled their property to build a home.

The Court ruled for the Sacketts and agreed that EPA's regulation violated the CWA. The court held that the CWA authorizes EPA to regulate only those wetlands that are "as a practical matter indistinguishable from waters of the United States," such that it is "difficult to determine where the 'water' ends and the 'wetland' begins." This means that the CWA covers only those wetlands that have "a continuous surface connection to bodies that are 'waters of the United States' in their own right, so that there is no clear demarcation between 'waters' and wetlands." 

The Court said that EPA needs "clear [statutory] language" if it seeks "to significantly alter the balance between federal and state power and the power of the Government over private property." The Court said that the CWA (even its use of "adjacent") didn't provide this clear authority. The Court also said that EPA's interpretation "gives rise to serious vagueness concerns in light of the CWA's criminal penalties," because the EPA's interpretation may not define the statute "with sufficient definiteness that ordinary people can understand what conduct is prohibited" and "in a manner that does not encourage arbitrary and discriminatory enforcement."

Justice Thomas, joined by Justice Gorsuch, argued that the CWA is even narrower, extending only to actually navigable waters of the United States--those that are "capable of being used as a highly for interstate or foreign commerce." Under this approach, the CWA probably wouldn't apply to any wetlands. He tied this standard to Congress's Commerce Clause power, and then took aim at the Court's Commerce Clause jurisprudence, arguing that today it "significantly depart[s] from the original meaning of the Constitution."

Justices Sotomayor, Kagan, Kavanaugh, and Jackson argued (in separate concurrences) that the Court's approach erroneously narrowed the CWA. They argued that "adjacent" waters under the CWA include not just "adjoining" wetlands (as the majority would have it) but also "wetlands separated from a covered water only by a man-made dike or barrier, natural river, berm, beach dune, or the like." Justice Kavanaugh (joined by Justices Sotomayor, Kagan, and Jackson) argued for this more expansive reading. Justice Kagan, joined by Justices Sotomayor and Jackson, went further, arguing that the Court erred in creating and applying the plain statement rule and that the Court (once again) mangled an environmental statute in order to achieve its preferred policy objectives.

 

 

 

 

 

 

Law Firm Tells Senate Judiciary They Can't Impose Supreme Court Ethics Code

Gibson Dunn, the firm that represents Harlan Crow, wrote to Senate Judiciary Chair Dick Durbin that the Committee lacked authority to investigate Justice Thomas's relationship with Crow and to impose an ethics code on the Supreme Court.

That's some chutzpah.

The firm wrote that Crow wouldn't comply with the Committee's effort to investigate Crow's relationship with Justice Thomas. According to the firm, the Committee's investigation lacks a legitimate legislative purpose, because ultimately Congress cannot impose an ethics code on the Supreme Court--and therefore can't investigate in order to impose such a code. Again according to the firm, a congressional ethics code for the Court would impermissibly encroach on the singular constitutional role and standing of the Supreme Court.

The letter engages with the Necessary and Proper Clause--in particular, the argument that the Necessary and Proper Clause authorizes Congress to impose an ethics code on the Court. But it seems to engage only with the first part of the Clause. According to the letter, the Necessary and Proper Clause doesn't provide Congress with authority to impose an ethics code, because Congress doesn't have the underlying power to impose a code.

But even if that's right--and it's not at all clear that it is--it ignores the second part of the Clause: "The Congress shall have the power . . . [t]o make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof." (Emphasis added.)

The move seems to put the ball back in the Senate Judiciary Committee's court, to subpoena Crow and then move to enforce the subpoena in the courts. That comes with some risk, of course: the Court (which is both a highly interested player and umpire in this separation-of-powers dispute) seems likely to side with Crow, based on its signals.

Public Employee Union Case Against Debt Ceiling Set for Hearing

U.S. District Judge Richard Stearns (D. Mass.) set a May 31 hearing date in the case brought by a public employee union challenging the constitutionality of the Debt Limit Statute.

The complaint in National Association of Government Employees v. Yellin alleges that

[t]he Debt Limit Statute is unconstitutional because it puts the President in a quandary to exercise discretion to continue borrowing to pay for the programs which Congress has heretofore duly authorized and for which Congress has appropriated funds or to stop borrowing and to determine which of these programs the President, and not the Congress, will suspend, curtail, or cancel altogether.

The plaintiffs argue that under the Anti-Deficiency Act, "the President does not have authority to suspend or cancel any laws or any programs that are, in fact, funded by Congress." Yet "the Debt Limit Statute has a retroactive effect and requires a reduction of operations of government approved by Congress, with no legislative direction as to which obligations to cancel."

In plain English, under the Anti-Deficiency Act and the Constitution the President must spend money validly appropriated by Congress, but the Debt Limit Statute (without raising the debt ceiling) prohibits the President from spending money appropriated by Congress. Given this reality, and given that the Fourteenth Amendment prohibits any person from questioning the validity of the public debt, "the Debt Limit Statute necessarily confers upon the Defendant President the unlawful discretion to cancel, suspend, or refuse to carry out spending approved by Congress, without the consent or approval of Congress as to how the President may do so, in order to pay the bondholders."

This approach doesn't hang its hat on the Fourteenth Amendment, at least not alone. Instead, it draws principally on the separation of powers--Congress's power to appropriate public funds, and the President's responsibility to spend those funds. The complaint say that if the Debt Limit Statute interferes with the President's duty to enforce congressional spending measures, then it's unconstitutional.

Court Says Congress Did Not Abrogate Puerto Rico Immunity

The Supreme Court ruled today that Congress did not abrogate sovereign immunity of the Financial Oversight and Management Board for Puerto Rico (as an arm of Puerto Rico) under the Puerto Rico Oversight, Management, and Economic Stability Act of 2016 (PROMESA). The ruling means that a non-profit can't sue the Board for its records.

The case, Financial Oversight and Management Board for Puerto Rico v. Centro de Periodismo Investigativo, Inc., arose when CPI sued the Board in federal court to obtain its records. The Board argued that it was immune; CPI responded that Congress abrogated immunity under PROMESA.

The Court rejected CPI's claim. Justice Kagan wrote for all but Justice Thomas that PROMESA did not contain a sufficiently "clear statement" abrogating sovereign immunity. In particular, she said that PROMESA doesn't provide that the Board or Puerto Rico is subject to suit, and it doesn't create a cause of action against them. She acknowledged that PROMESA says that "any action against the Oversight Board, and any action otherwise arising out of" PROMESA "shall be brought" in the Federal District Court sitting in Puerto Rico. But she wrote that this provision and others in PROMESA serve other functions, not abrogation. For example, she wrote that this provision accounts for other statutes' abrogation of sovereign immunity (like Title VII), and doesn't constitute an independent abrogation. In other words, PROMESA's references to lawsuits against the Board apply to suits based on other causes of action, where Congress has abrogated immunity; they do not categorically abrogate immunity for all claims against the Board.

Justice Thomas argued in dissent that the Board lacked immunity in the first place. (The Court assumed, but didn't decide, that the Board had immunity.)

January 6 Committee Makes Criminal Referrals for Trump and Others

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

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

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

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

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

SCOTUS to Hear Biden Loan Forgiveness Case

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Eighth Circuit Halts Education Debt Forgiveness Program Pending Appeal

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

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

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

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

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

Trump Sues to Halt January 6 Committee Subpoena, surprising nobody

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

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

Trump objects to the subpoena on several grounds:

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

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

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

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

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

Judge Strikes Biden Student Loan Forgiveness

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

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

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

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

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

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

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

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

Government, House File Arguments in Trump Tax Case

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

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

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

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

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

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

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

Next move's for the Court.

Can Plaintiffs Sue to Enforce Conditions in Spending Clause Legislation?

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

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

FACTS

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

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

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

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

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

CASE ANALYSIS

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

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

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

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

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

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

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

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

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

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

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

 

SIGNIFICANCE

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

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

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

Eleventh Circuit Writes Final Chapter in Marjorie Taylor Greene Candidacy Challenge

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

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

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

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

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

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

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

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

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

SCOTUS Temporarily Blocks Committee Access to Trump Taxes

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

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

We previously posted here.