Wednesday, November 2, 2022

SCOTUS Clears Way for Graham Testimony in GA Election Case

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

We posted most recently here.

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

The order reads,

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

November 2, 2022 in Cases and Case Materials, Congressional Authority, Courts and Judging, News | Permalink | Comments (0)

Thursday, October 27, 2022

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

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

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

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

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

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

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

October 27, 2022 in Cases and Case Materials, Congressional Authority, News | Permalink | Comments (0)

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

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

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

October 27, 2022 in Cases and Case Materials, Congressional Authority, Executive Authority, News, Opinion Analysis, Separation of Powers | Permalink | Comments (0)

Monday, October 24, 2022

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

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

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

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

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

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

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

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

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

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

October 24, 2022 in Cases and Case Materials, Congressional Authority, Executive Authority, Jurisdiction of Federal Courts, News, Separation of Powers | Permalink | Comments (0)

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

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

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

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

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

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

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

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

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

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

October 24, 2022 in Cases and Case Materials, Congressional Authority, Executive Authority, News, Separation of Powers | Permalink | Comments (0)

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

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

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

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

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

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

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

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

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

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

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

October 24, 2022 in Cases and Case Materials, Congressional Authority, News, Separation of Powers | Permalink | Comments (0)

January 6 Committee Subpoenas Trump

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

In support of the subpoena, the Committee wrote:

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

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

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

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

October 24, 2022 in Congressional Authority, Executive Authority, News, Separation of Powers | Permalink | Comments (0)

Tuesday, October 4, 2022

KBJ Goes Originalist on the Fourteenth

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

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

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

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

October 4, 2022 in Cases and Case Materials, Congressional Authority, Elections and Voting, News | Permalink | Comments (0)

Saturday, July 2, 2022

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

July 2, 2022 in Cases and Case Materials, Congressional Authority, Executive Authority, News, Opinion Analysis | Permalink | Comments (0)

Friday, July 1, 2022

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

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

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

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

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

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

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

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

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

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

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

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

July 1, 2022 in Cases and Case Materials, Congressional Authority, Executive Authority, News, Opinion Analysis, Separation of Powers | Permalink | Comments (0)

Wednesday, June 29, 2022

Court Says States Structurally Waived Sovereign Immunity for Common Defense

The Supreme Court ruled today that States "structurally" waived their sovereign immunity from suits for money damages in cases under Congress's war powers, and that Congress can therefore authorize such suits against States, even in State courts.

The ruling means that a servicemember who returned with constrictive bronchitis can sue his State employer in State court for failing to accommodate his condition.

More broadly, it means that the Court has now recognized States' "structural" waiver of immunity in cases under the Bankruptcy Clause, under Congress's power of eminent domain, and (now) under Congress's war powers. ("Structural" waiver means that the States waived their sovereign immunity when they signed on to the Constitution in the first place, as part of the original Constitutional design. Congress can also abrogate State sovereign immunity by enacting legislation under its enforcement power under the Fourteenth Amendment; but that's a different thing.)

This is significant, because it gives structural waiver more teeth, and says that any categorical understanding of Alden v. Maine that Congress cannot authorize private-damage suits against States under its Article I powers is wrong. (Alden says that Congress can't abrogate State sovereign immunity using its Article I powers. Today's ruling says that Congress may, however, rely on structural waiver to authorize private-damage suits.)

The case, Torres v. Texas Department of Public Safety, tested the federal Uniformed Services Employment and Reemployment Rights Act of 1994, in particular, whether the Act validly authorized a servicemember's money-damages lawsuit against a State for failure to re-employ or accommodate the returned servicemember in their State job. Congress enacted the Act under its Article I powers "[t]o raise and support Armies" and "[t]o provide and maintain a Navy."

The Court said yes, it did. Justice Breyer wrote for the Court, joined by Chief Justice Roberts and Justices Sotomayor, Kagan, and Kavanaugh. The Court held that the text, history, and precedent of Congress's war powers all said that the States structurally waived their sovereign immunity when they joined the Union, and that Congress could (and did) therefore validly authorize suits against States for money damages for violations of the Act.

Justice Thomas dissented, joined by Justices Alito, Gorsuch, and Barrett. He argued that the Court was wrong on each point (text, history, precedent), and that Alden v. Maine "should have squarely foreclosed [the Court's] holding."

June 29, 2022 in Cases and Case Materials, Congressional Authority, Eleventh Amendment, News, Opinion Analysis | Permalink | Comments (0)

Monday, November 8, 2021

Court to Hear State Secrets, FISA Case

The Supreme Court will hear oral arguments this morning in a case testing the interplay between the state secrets privilege and the Foreign Intelligence Surveillance Act. Here's my argument preview, from the ABA Preview of United States Supreme Court Cases, with permission:

Does Section 1806(f) of the Foreign Intelligence Surveillance Act, which requires certain judicial procedures when the government seeks to protect evidence in certain cases in the national security, displace the state-secrets privilege?

Case at a Glance

For at least 14 months between 2006 and 2007, the FBI operated a surveillance program within the Muslim community in Southern California in order to identify potential terrorists. Members of the community sued, arguing that the program and its agents engaged in illegal searches, and that the program and its agents illegally targeted members of the community because of their religion. The government moved to dismiss the claims under the state-secrets privilege.

INTRODUCTION

The state-secrets privilege is an evidentiary privilege with constitutional underpinnings that allows the government to move to block certain evidence that could threaten the national security. At the same time, Section 1806(f) of the Foreign Intelligence Surveillance Act prescribes a judicial process in certain circumstances for determining whether evidence could threaten the national security. This case tests the interplay of the state-secrets privilege and Section 1806(f).

ISSUE

Does Section 1806(f) displace the state-secrets privilege?

FACTS

For at least 14 months between 2006 and 2007, the FBI operated a surveillance program in Southern California called Operation Flex. According to the FBI, the purpose of the program “was to determine whether particular individuals were involved in the recruitment and training of individuals in the United States or overseas for possible terrorist activity.” According to the plaintiffs, the “central feature” of the program was to “gather information on Muslims.”

As part of the program, the FBI engaged Craig Monteilh to be a confidential informant. Monteilh’s supervisors, FBI Special Agents Kevin Armstrong and Paul Allen, instructed him to gather information on Muslims, particularly religious Muslims and individuals who might influence young Muslims.

In July 2006, Monteilh started attending the Islamic Center of Irvine (ICOI) in order to gather information. Monteilh attended daily prayers, classes, and special events; declared his desire to convert to Islam; and adopted the name Farouk al-Aziz. He also visited at least seven other mosques in Orange County, and infiltrated the local Muslim community in other ways, too.

On instructions from Armstrong and Allen, Monteilh secretly recorded nearly all of his interactions and took extensive hand-written notes. Monteilh ultimately gave the FBI “hundreds of phone numbers; thousands of email addresses; background information on hundreds of individuals; hundreds of hours of video recordings of the interiors of mosques, homes, businesses, and associations; and thousands of hours of audio recordings of conversations, public discussion groups, classes, and lectures.”

In early 2007, Armstrong and Allen instructed Monteilh to start asking more direct questions about the community’s willingness to engage in violence. Monteilh told several members of the community that he believed that he had a duty as a Muslim to take violent action and that he had access to weapons.

Several IOCI members reported Monteilh to community leaders, and one of them, in turn, called the FBI and instructed concerned members to call the Irvine Police Department. The IOCI sought and received a restraining order against Monteilh.

In October 2007, the FBI released Monteilh. His identity as an informant was revealed in February 2009, as part of a criminal prosecution for naturalization fraud of one of the IOCI member who initially reported Monteilh. The FBI, Monteilh, and others subsequently confirmed that Monteilh worked for the FBI. While the FBI disclosed some information about Monteilh’s activities, it maintains that “certain specific information” must remain secret in the interest of national security.

In September 2011, three members of the local Muslim community sued as a putative class. (Plaintiff Sheikh Yassir Fazaga was an imam at the Orange County Islamic Foundation; plaintiffs Ali Uddin Malik and Yasser AbdelRahim are practicing Muslims who regularly attend services at the ICOI.) They alleged that the FBI and its agents violated a variety of constitutional and statutory provisions, falling into two broad categories: unconstitutional search claims and religious-freedom claims. The plaintiffs’ religion claims allege that the defendants violated the First Amendment Religion Clauses, equal protection, the Privacy Act, the Religious Freedom Restoration Act (RFRA), the Foreign Intelligence Surveillance Act (FISA), and the Federal Tort Claims Act (FTCA).

The government moved to dismiss the case on a variety of grounds. As relevant here, the government invoked the state-secrets privilege and moved to dismiss the religion claims (but not the search claims) on that ground. (The state-secrets privilege protects evidence that, if revealed, could threaten the national security.) The government argued that the religion claims could not proceed without risking disclosure of certain evidence protected by the privilege. In support of its claim, the government submitted public and classified declarations by Department of Justice leaders.

The district court dismissed the plaintiffs’ FISA claim against the government on other grounds, and allowed the plaintiffs’ FISA claim against individual agents to go forward.

In a separate order addressing the government’s motion to dismiss under the state-secrets privilege, the court dismissed all of the plaintiffs’ remaining religion claims and the Fourth Amendment search claim (even though the government did not seek dismissal of the search claim under the state-secrets privilege). In so ruling, the court relied “heavily” on the government’s classified declarations and supplemental memorandum.

The court did not use the procedure for review of the evidence set out in Section 1806(f) of the FISA, which prescribes an in camera, ex parte process for courts to use when the government claims that “disclosure [of particular evidence] in a case or an adversary hearing would harm the national security of the United States.”  The court said that Section 1806(f) did not apply to non-FISA claims. (Remember that the government moved to dismiss only the non-FISA religion claims based on the state-secrets privilege. The court addressed the FISA claims separately.)

The Ninth Circuit reversed. The appellate court held that the Section 1806(f) procedure “displaces the dismissal remedy of the common law state secrets privilege as applied to electronic surveillance generally.” It ruled that the district court therefore should have used the Section 1806(f) procedures to evaluate the evidence and determine whether the state-secrets privilege applied. It directed the lower court, on remand, to apply Section 1806(f)’s ex parte and in camera procedures to “review any ‘materials relating to the surveillance as may be necessary,’ including material over which the Attorney General asserted the state secrets privilege, to determine whether the electronic surveillance was lawfully authorized and conducted.” The Ninth Circuit wrote that the lower court, in making this determination under Section 1806(f), could disclose to the plaintiffs “portions of the application, order, or other materials relating to the surveillance” if disclosure was “necessary to make an accurate determination.”

The FBI then brought this appeal.

CASE ANALYSIS

Section 1806(f) of the FISA directs a court to apply certain procedures whenever the government claims that disclosure of evidence in certain types of cases could threaten the national security. In particular, the Section requires the court to “review in camera and ex parte the application, order, and such other materials relating to the surveillance as may be necessary to determine whether the surveillance of the aggrieved person was lawfully authorized and conducted.” The Section goes on to say that “the court may disclose to the aggrieved person, under appropriate security procedures and protective orders, portions of the application, order or other materials relating to the surveillance only where such disclosure is necessary to make an accurate determination of the legality of the surveillance.”

The state-secrets privilege, in contrast, is an evidentiary privilege, with constitutional, separation-of-powers roots, that allows the government to protect evidence in proceedings when the government certifies that the evidence, if revealed, could threaten the national security. At the outside, the privilege allows the government to move to dismiss an entire case, if the putatively protected evidence is so central to the case that the case cannot move forward without it.

The case asks whether the Section 1806(f) process “displaces” the state-secrets privilege. This question, in turn, depends on the scope and operation of the state-secrets privilege and the interplay between the two.

The government argues first that the Ninth Circuit erred in ordering the district court to apply the Section 1806(f) procedure in the first place. The government points out that Section 1806(f) is available in only three limited situations defined in the Section itself, and that none of these includes a civil action like the plaintiffs’ case. The government says that the Ninth Circuit wrongly shoehorned this case into two of those three situations. First, the government contends that the Ninth Circuit erroneously considered the government’s motion to dismiss the case as notice of the government’s intent “to enter into evidence or otherwise use or disclose” the privileged information “against an aggrieved person,” thus satisfying one of the three situations that trigger a Section 1806(f) process. The government says that this misconstrues the state-secrets privilege, which is designed to protect information, not signal its disclosure and use. Second, the government asserts that the Ninth Circuit wrongly considered the plaintiffs’ request for relief in its civil suit as a “motion or request * * * to discover, obtain, or suppress evidence or information obtained or derived from electronic surveillance,” another of the three situations that trigger a Section 1806(f) process. The government contends that the plaintiffs’ prayer for relief in their civil case is simply not a “motion.”

Moreover, the government argues that the Ninth Circuit erred in applying the Section 1806(f) procedure. The government claims that the Ninth Circuit “reasoned that Section 1806(f) provides a mechanism for litigating a civil plaintiff’s claims to final judgment.” (Remember that the Ninth Circuit’s remand order directed the district court to “review any ‘materials relating to the surveillance as may be necessary,’ including material over which the Attorney General asserted the state secrets privilege, to determine whether the electronic surveillance was lawfully authorized and conducted.”) But the government says that “nothing in Section 1806(f) suggests that it was intended to be used to litigate, ex parte and in camera, the merits of a case.” Instead, the government contends that a Section 1806(f) proceeding culminates only in a grant or denial of a motion related to the admissibility of evidence, not a “review any ‘materials relating to the surveillance as may be necessary,’ including material over which the Attorney General asserted the state secrets privilege, to determine whether the electronic surveillance was lawfully authorized and conducted.”

The government argues next that Section 1806(f) does not displace the state-secrets privilege. It says that nothing in FISA even mentions the state-secrets privilege, much less suggests that FISA displaces it. And it says that Section 1806(f) is perfectly compatible “with the continued vitality of the privilege.” The government contends that even if there were any doubt, the government should interpret Section 1806(f) as not displacing the privilege.

Finally, the government argues that the state-secrets privilege has constitutional roots and is an essential aspect of presidential power. It claims that any congressional effort to displace or abrogate the privilege must therefore include a clear statement, and neither Section 1806(f) nor any other provision of FISA does.

The plaintiffs counter first that the state-secrets privilege does not support dismissal of their case. They contend that the state-secrets privilege, like other evidentiary privileges, supports the exclusion of evidence from a case so that no party can use it. But the plaintiffs say their religion claims don’t depend on secret evidence. And in any event, they contend that the government seeks both to exclude secret evidence and to use that evidence in its own defense in support of dismissal. They claim that the government’s effort both to exclude and to use the evidence is inconsistent with the very nature of a privilege (which is designed to entirely exclude evidence from a case).

Moreover, they assert that the government, in so arguing, improperly conflates the state-secrets evidentiary privilege with a categorical bar to litigation, which the Court has only applied in “government-contracting lawsuits where the “very subject matter’ of the suit is secret.” The plaintiffs say that they never contracted with the government, and never assumed the risk that they would forfeit judicial review of any contract, and so the categorical bar does not apply. The plaintiffs contend that the district court improperly dismissed their case, and that it should have simply excluded any privileged evidence and allowed the case to move forward.

The plaintiffs argue next that even if the state-secrets privilege would support dismissal, Section 1806(f) displaced it in cases involving electronic surveillance. They contend that Section 1806(f) applies here, because the government seeks to “use” secret information in its defense to the plaintiffs’ religion claims, and because the plaintiffs are “aggrieved persons” who asked, through their prayer for relief in their complaint, to “obtain” information that the government illegally gathered. Contrary to the government, they say that they therefore satisfy the threshold requirements for Section 1806(f).

The plaintiffs claim that the government’s arguments to the contrary are not supported by Section 1806(f)’s plain text, which, they say, is not limited to procedural motions. Moreover, they contend that the government’s reading would render meaningless Section 1810 of FISA, which creates a civil damages remedy for victims of unlawful electronic surveillance. They explain: “Defendants’ argument would leave the government free to win dismissal of virtually any Section 1810 suit simply by asserting that the underlying conduct was secret—whether or not it was lawful—thus nullifying the civil damages remedy Congress created to ensure surveillance remains constrained by law.”

The plaintiffs argue, contrary to the government, that FISA does, in fact, clearly displace the state-secrets privilege. They say that while FISA does not use the phrase “state secrets privilege,” it nevertheless refers to the privilege when it uses the phrase “national security,” which raises exactly the same concerns. The plaintiffs contend that this poses no constitutional problem, as the government argues, because Congress has clear authority to displace the state-secrets privilege as part of its authority to regulate surveillance and establish evidentiary rules for civil litigation over that surveillance. Moreover, the plaintiffs assert that displacement raises no constitutional problem for individual government agents, because FISA itself, in Section 1806(g), requires that any remedies must be “in accordance with the requirements of law,” including the Constitution.

Finally, the plaintiffs argue that the government’s position raises serious constitutional problems. They say that the government, by seeking both to protect secret information and to use that information in its own defense, effectively deprives the plaintiffs of “any judicial determination of whether the Government broke the law.” This aggrandizes the power of the executive at the expense of the judiciary and Congress, and leaves the plaintiffs without a judicial remedy.

SIGNIFICANCE

On the face of it, this case asks an extremely narrow and hyper-technical question—whether Section 1806(f) of the FISA displaces the state-secrets privilege. But in order to answer that question, the Court will likely have to address a much bigger issue, that is, the scope and operation of the state-secrets privilege.

In particular: How should courts treat and evaluate the government’s assertion of the state-secrets privilege over information that the government obtained through surveillance?

The government adopts a muscular view of the privilege. It emphasizes the privilege’s constitutional roots; argues that Congress cannot displace it or channel its operation through ordinary legislation like Section 1806(f); and contends that the courts must broadly defer to the government’s assertion of the privilege, and even dismiss cases when the government claims that they cannot be litigated without revealing privileged information that could threaten the national security. In other words, the government claims that courts must take the government’s say-so when it invokes the privilege, based only on the government’s affidavits in support, and without independently assessing—even ex parte and even in camera—the putatively protected material. And because of the privilege’s constitutional roots, the government claims that Congress cannot displace, or even channel, this deference through ordinary legislation. At risk of stating the obvious, the government’s interpretation of the privilege puts a tremendous amount of power in the hands of the executive branch to conceal particular evidence and even shut down cases entirely. (The government doesn’t have a particularly reassuring track record in this regard. In the very case where the Court established the modern privilege, United States v. Reynolds, 345 U.S. 1 (1953), the government turned out to have misled the courts about its need to invoke the privilege to protect the national security.)

The plaintiffs, for their part, proffer a much narrower view of the privilege. They emphasize the privilege’s common-law roots, and argue that Congress can, and did, displace it through Section 1806(f). But this approach could lead to the disclosure of secret information, even if only to a judge, alone in chambers, exercising discretion in a Section 1806(f) process, and thus threaten national security. This approach could also lead to the disclosure of secret information to other parties, as a judge might determine necessary, even further threatening national security.

The Court may have to decide between these approaches (or a third, middle way) and address the scope of the privilege for the first time since Reynolds.

I say “may” because the Court has an off ramp, maybe even two, and could dodge harder questions about the scope of the state-secrets privilege, at least for now. For one, the Court could simply rule that the plaintiffs’ case does not qualify for the Section 1806(f) process, as the government argues, and dodge the harder question whether Section 1806(f) displaces the state-secrets privilege. If so, the Court could simply reverse the Ninth Circuit and remand for further proceedings (which would presumably include consideration of the government’s assertion of the state-secrets privilege). For a second, the Court could rule on the displacement question without fully expounding the state-secrets privilege. If so, the Court could rule on the merits and, if it ruled for the government, remand the case for further proceedings (which again would presumably include consideration of the government’s assertion of the state-secrets privilege). Either way, the Court could avoid the harder questions about the scope of the state-secrets privilege. But either way, the case would almost certainly come back to the Court.

One final note. This is one of two cases this Term to raise issues related to the state-secrets privilege. (That’s extraordinary, by the way. But it’s also much needed, given that the Court hasn’t said anything serious about the privilege since Reynolds.) The other case is United States v. Zubaydah, argued on October 6, and previewed in the last issue of Preview. Zubaydah raises different questions about the privilege. But between the two cases, the Court this Term has a singular opportunity to define the scope of the privilege and state determinatively how it shall operate in the courts.

November 8, 2021 in Cases and Case Materials, Congressional Authority, Executive Authority, News, Separation of Powers | Permalink | Comments (0)

Friday, October 22, 2021

Missouri, Texas Sue Biden Administration for Stalling on Border Wall

Missouri and Texas sued the Biden Administration for stalling on wall construction along the southern border. The states claim that Congress appropriated funding for wall construction--and only wall construction--and that the Biden Administration's stall violates the separation of powers, federal appropriations law, and federal administrative law.

The states argue that Congress appropriated $1.37 billion to the Department of Homeland Security in FY 2021 and FY 2020 for "construction of a barrier system along the southwest border" and specified that these funds "shall only be available for barrier systems." They say that when the Biden administration delayed spending the money for wall construction, it impermissibly intruded on Congress's appropriations power in violation of the separation of powers, failed to enforce the law (under the Take Care Clause), and violated federal appropriations law and federal administrative law. The states ask the court to compel the administration to spend the appropriated funds for "construction of a barrier system along the southwest border."

The Biden Administration, for its part, halted wall construction and used appropriated funding to bring wall construction projects into compliance with federal environmental law and federal statutory community-stakeholder-consultation requirements. (DHS had waived these requirements in the Trump Administration. The Biden Administration DHS said that it wouldn't waive them.) The GAO ruled this past summer that this didn't amount to an illegal "impoundment" under the Impoundment Control Act; instead, it was a "programmatic delay." (The states' complaint repeatedly mischaracterizes the GAO opinion.) By this reckoning, the Biden Administration's halt isn't a violation of law; instead, it's a move to comply with law--environmental and stakeholder-consultation requirements that the Trump Administration waived. The Biden Administration also plans to use some of the funding to remediate the environmental damage wrought by wall construction in the Trump years.

Before the case even gets to the merits, however, standing may be an issue. The states claim that the Biden Administration's halt on wall construction leads to greater unauthorized immigration, which causes them to incur costs in issuing drivers licenses, providing public education, and providing health care. It's not at all clear that they can plausibly allege that the Biden Administration's halt causes these harms, and that an order to re-start building would remedy them, as required for Article III standing.

October 22, 2021 in Cases and Case Materials, Congressional Authority, Executive Authority, News, Separation of Powers | Permalink | Comments (0)

Tuesday, October 19, 2021

Trump Sues to Stop House Committee From Obtaining January 6 Records

Former President Donald Trump yesterday sued to stop the House Select Committee to Investigate the January 6th Attack on the United States Capitol from obtaining White House and other records from the National Archives.

The move comes after the Committee requested records related to the insurrection from the Archives, and President Biden declined to assert executive privilege to halt their release.

Trump's lawsuit claims principally that the Committee lacks a "legitimate legislative purpose" in the material and therefore exceeds its Article I authority. "No investigation can be an end in itself; there is nothing in the overwhelming majority of the records sought that could reasonably be justified as a means of facilitating the legislative task of enacting, amending, or repealing laws." The lawsuit goes on to claim that the Committee's work looks like law enforcement, not law making, in violation of the separation of powers.

In pitching the lack-of-legitimate-lawmaking-purpose claim, the complaint relies on the Court's four-factor approach in Mazars. At least some of the Mazars analysis, however, turned on the fact that congressional committees sought personal financial records (and not official records) of the president. The complaint doesn't try to square that reasoning in Mazars with the fact that the Select Committee seeks only official records.

The complaint also doesn't seriously wrestle with the idea that the Committee seeks the documents to investigate an attack on Congress to stop the electoral-vote count. Seems like that, if anything, would pretty squarely fall within Congress's "legitimate legislative purpose."

The lawsuit also claims executive privilege, attorney-client privilege, attorney work-product privilege, and deliberative process privilege; and it contends that the requested material touches on national security and law enforcement. It contends that to the extent that the Presidential Records Act authorizes the sitting president to override the former president's assertion of executive privilege, the PRA is unconstitutional.

The suit asks the court to declare that "the Committee's requests are invalid and unenforceable under the Constitution and laws of the United States," or, alternatively, to declare "that the Presidential Records Act is an unconstitutional violation of the separation of powers and is void ab initio." It also asks for preliminary and permanent injunctions to stop the Committee "from taking any actions to enforce the requests, from imposing sanctions for noncompliance with the requests, and from inspecting, using, maintaining, or disclosing any information obtained as a result of the requests," and to stop the Archives from releasing the documents, at least until "Trump has had sufficient opportunity to conduct a comprehensive review of all records the Archivist intends to produce before any presidential record is produced to the Committee."

October 19, 2021 in Cases and Case Materials, Congressional Authority, Executive Authority, Executive Privilege, News, Separation of Powers | Permalink | Comments (0)

Friday, August 27, 2021

Supreme Court Halts CDC Eviction Moratorium

The Supreme Court issued an emergency order late yesterday halting the CDC's eviction moratorium. While the ruling technically only vacates the stay of a lower court ruling striking the moratorium (and allows the government's appeal to move forward, but without a stay of the district court's ruling), it all but decides the underlying merits.

The Court said that the CDC lacked statutory authority to impose the moratorium. The applicable provision, 42 U.S.C. Sec. 264(a), states:

The Surgeon General, with the approval of the [Secretary of Health and Human Services], is authorized to make and enforce such regulations as in his judgment are necessary to prevent the introduction, transmission, or spread of communicable diseases from foreign countries into the States or possessions, or from one State or possession into any other State or possession. For purposes of carrying out and enforcing such regulations, the Surgeon General may provide for such inspection, fumigation, disinfection, sanitation, pest extermination, destruction of animals or articles found to be so infected or contaminated as to be sources of dangerous infection to human beings, and other measures, as in his judgment may be necessary.

In short, the Court said that the moratorium exceeded this authority, because it wasn't in line with the kind of specific examples in the second sentence. In other words, it read the second sentence as limiting the authority in the first sentence. It said that if the statute authorized the moratorium, then it could authorize nearly any measure--"a breathtaking amount of authority"--and this goes too far. The Court also said that Congress was "on notice" but failed to enact legislation to specifically reauthorize the moratorium. (Congress had previously specifically authorized the moratorium in COVID relief legislation, but that authorization lapsed, leaving only Section 264(a) as possible authority for the moratorium.)

The Court said that "[t]he applicants not only have a substantial likelihood of success on the merits--it is difficult to imagine them losing."

Justice Breyer dissented, joined by Justices Sotomayor and Kagan. He read the statute just the opposite--that the first sentence plainly authorizes a moratorium, and that the second sentence, if anything, only expands the authority in the first sentence. Justice Breyer also focused on the moratorium's tailoring (geographic and otherwise), and the harm that would likely result to tenants under the Court's holding.

The ruling halts the CDC's eviction moratorium. But Congress could change this by specifically reauthorizing the CDC to issue a moratorium.

The ruling does nothing to state and local moratoriums; it only addresses the CDC's moratorium.

August 27, 2021 in Cases and Case Materials, Congressional Authority, Executive Authority, News, Opinion Analysis, Separation of Powers | Permalink | Comments (0)

Wednesday, August 18, 2021

Ninth Circuit Affirms Constitutionality of Department of Labor ALJs

The Ninth Circuit ruled that removal protections for Department of Labor Administrative Law Judges did not violate the separation of powers. The ruling rebuffed a claim by a coal corporation in a Black Lung Benefits Act case. It means that the agency ruling against the corporation stands, and that DOL ALJs are safe . . . for now.

That "for now" is because the Supreme Court has been on a tear to rule that more and more removal protections violate the separation of powers. This case could give the Court another opportunity to move in the direction of complete presidential control over the removal of executive officers--toward a robust "unitary executive theory."

The case, Decker Coal v. Pehringer, arose after a DOL ALJ awarded a claimant Black Lung Benefits Act benefits, and the Benefits Review Board upheld the award. Decker Coal filed a motion for reconsideration and a motion to reopen the record; the ALJ denied the motions, and the BRB affirmed. This appeal followed.

The Ninth Circuit rejected Decker Coal's argument that removal protections for DOL ALJs violated the separation of powers. By statute, DOL ALJs can be fired only for good cause determined by the Merit Systems Protection Board, members of which, in turn, can be removed by the president only for "inefficiency, neglect of duty, or malfeasance in office." Decker claimed that the dual for-cause removal protection violated the Court's ruling in Free Enterprise Fund, which held that the dual for-cause removal protection for members of the PCAOB violated the separation of powers. The Ninth Circuit disagreed, for three reasons.

First, the court ruled that in contrast to PCAOB members, "the ALJ here was performing a purely adjudicatory function in deciding the BLBA claim."

Next, the court said that DOL itself decided to use ALJs to adjudicate BLBA benefits. It noted that by statute DOL could have used any "[q]ualified individuals appointed by the Secretary of Labor," including individuals who did not enjoy for-cause removal protections, and that the president could order DOL to use such individuals instead of ALJs. In other words, the court said that Congress didn't impermissibly encroach upon the president's power to direct the executive branch; DOL (and ultimately the president) did, and they can change it if they like.

Finally, the court said that the president can exercise control of ALJs through the BRB, which reviews ALJ decisions, and members of which are appointed without removal protections by the Secretary of Labor (who, of course, enjoys no removal protections).

August 18, 2021 in Cases and Case Materials, Congressional Authority, Executive Authority, News, Opinion Analysis, Separation of Powers | Permalink | Comments (0)

Sunday, August 15, 2021

District Court Halts Biden Administration Rescission of MPP

Judge Matthew Kacsmaryk issued a permanent, nationwide injunction halting the Biden Administration's rescission of the Trump Administration Migrant Protection Protocols policy. The court ruled that the Biden Administration's rescission was "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law," in violation of the Administrative Procedure Act.

The sweeping and aggressive ruling also directs the Administration to provide monthly updates to the court on immigration action at the Southwest Border in order "[t]o ensure compliance with this order."

The ruling means that the Biden Administration will have to reinstate MPP, unless and until it comes up with a more thorough justification for rescission . . . and unless and until it can find the resources to detain immigrants domestically pending their asylum or deportation proceedings.

The court stayed the ruling for seven days, however, to give the Biden Administration time to seek a stay pending appeal. The Administration surely will seek a stay and appeal; there's much more to come in this case.

The case, Texas v. U.S., tests the Biden Administration's rescission of the Trump Administration's MPP, under which DHS sent non-citizens to Mexico pending their removal proceedings. The Biden Administration rescinded the program and explained its decision in a June 1 memo. (Here's the DHS MPP info page.)

The court ruled that the memo didn't provide a sufficient justification for rescission under the Administrative Procedure Act. It said that the memo failed to consider the putative benefits of MPP, the costs of revoking MPP, the states' reliance interests in MPP, and any other policies short of termination that would meet its interests. Moreover, the court said that the memo's stated justifications were arbitrary.

The court vacated the memo and ordered the Biden Administration to reinstate MPP, unless and until the Administration could properly justify rescission and demonstrate that it can detain immigrants domestically pending their asylum or deportation proceedings.

(That last bit is in response to the Administration's argument that it lacks sufficient resources to detain all immigrants domestically pending their proceedings--and that's why they parole many of them. The court declined to treat the relative lack of resources as a legal constraint on the Administration's ability to detain, however, and instead focused on the INA's language that DHS "must" detain immigrants. (If Congress tells the Administration that it "must" detain, but only allocates a portion of funding to achieve that requirement, another understanding would be that Congress instructs the Administration that it "must" detain only up to the resources that it allocated.))

Remarkably, the court ordered the Administration to report monthly on border activity in order "[t]o ensure compliance" with its order.

The Administration will undoubtedly seek a stay pending appeal from the Fifth Circuit, and then appeal on the merits. This one's only just begun. Stay tuned.

August 15, 2021 in Cases and Case Materials, Congressional Authority, Courts and Judging, Executive Authority, News, Opinion Analysis, Separation of Powers | Permalink | Comments (0)

Friday, August 13, 2021

District Judge Leaves CDC's Eviction Moratorium in Place

Judge Dabney Friedrich (D.D.C.) declined to halt the CDC's eviction moratorium in light of an earlier ruling by the D.C. Circuit. The court said that it's "hands are tied," even though "intervening decisions call into question the D.C. Circuit's conclusion that the CDC is likely to succeed on the merits." The court then invited the plaintiffs to appeal, which they certainly will.

The case, Alabama Association of Realtors v. US DHS, challenges the latest version of the CDC's eviction moratorium. Plaintiffs previously challenged an earlier version (which applied nationwide) on the ground that the CDC lacked statutory authority under the Public Health Act. The court vacated the earlier version last May, but stayed the vacatur pending appeal. The D.C. Circuit declined to vacate stay in June. The Supreme Court also declined to vacate the stay, based at least in part on the CDC's representation that it wouldn't further extend the moratorium. (Four justices would've ruled for the plaintiffs outright; a fifth, Justice Kavanaugh, wrote that the CDC needed statutory authority, but he nevertheless voted to keep the stay in place because it was set to expire in just a couple weeks.)

Then the CDC extended the moratorium, but only as to counties with a substantial or high level of community transmission of COVID.

The plaintiffs then went back to the district court and asked it to "enforce the Supreme Court's ruling." Today the district court declined.

The court said that it was bound by the June D.C. Circuit ruling--the "law of the case"--and that nothing in the Supreme Court's ruling undid the D.C. Circuit's ruling. The court noted that "the Sixth Circuit held that Section 361 of the Public Health Act does not authorize the CDC to impose a nationwide eviction moratorium," and that the Eleventh Circuit "also expressed 'doubts' about the CDC's statutory arguments. But it said that these rulings aren't binding; instead, the D.C. Circuit is.

August 13, 2021 in Cases and Case Materials, Congressional Authority, Executive Authority, News, Opinion Analysis, Separation of Powers | Permalink | Comments (0)

Wednesday, August 11, 2021

District Court Orders Trump Accounting Firm to Turn Over Records to House Oversight Committee

Judge Amit Mehta (D.D.C.) ordered former President Trump's accounting firm, Mazars, LLP, to comply with a House Oversight Committee subpoena and turn over certain financial records of former President Trump and Trump businesses. The ruling follows the Supreme Court's 2020 ruling on an earlier version of the subpoena in Trump v. Mazars.

Judge Mehta's order deals a blow to former President Trump and his long-running efforts to conceal his financial records. But even this latest chapter isn't yet the end: the ruling will certainly be appealed.

The case, still captioned Trump v. Mazars, arose when the House Oversight Committee issued a subpoena to Mazars for certain financial documents of then-President Trump and Trump businesses in 2019. Then-President Trump sued to halt the subpoena. The Supreme Court ruled in 2020 that the subpoena for a sitting president's personal financial records raised "weighty" separation-of-powers concerns, and that the lower courts had to take full account of these concerns in ruling on the subpoena. In particular, the Court identified four non-exhaustive "special considerations" to guide that analysis. The Court sent the case back for further consideration in light of its ruling.

Then the Committee issued a lengthy memo on why it needed the requested information (the "Maloney Memo"), and later, after a new Congress convened, re-issued the subpoena (the "Maloney Subpoena").  The Maloney Subpoena is exactly the same as the original subpoena (the "Cummings Subpoena"), but now has the benefit of the lengthy Maloney Memo, justifying the Maloney Subpoena in detail.

That's all background. Now this most recent ruling.

The court first said that it must assess the Maloney Subpoena (not the earlier Cummings Subpoena), along with the Committee's lengthy justification in the Maloney Memo. The court rejected former President Trump's argument that it could only consider the Cummings Subpoena, without the Maloney Memo. The court explained, "Although the reissued subpoena is identical to the Cummings Subpoena in substance, the House reissuance process required the Committee to serve upon Mazars an entirely separate, fresh subpoena, and the Committee did so. Thus, it is the reissued subpoena that Plaintiffs now challenge, not the expired subpoena issued by Chairman Cummings." The court then rejected former President Trump's claim that the Committee issued the Maloney Subpoena for an invalid purpose.

The court went on to assess the Maloney Subpoena against the Mazars factors, dividing the subpoena into three separate parts, or "tracks." Given that the Maloney Subpoena seeks documents of a former president, not a sitting one, the court acknowledged that the separation-of-powers concerns were substantially diminished. It therefore applied a "Mazars lite" test to each track.

First, the court rejected the Committee's subpoena for documents related to the "financial disclosure track," those documents related to former President Trump's financial disclosures under the Ethics in Government Act that contained "numerous apparent discrepancies." The Committee sought these documents in order to shore up financial disclosure requirements. The court said that the Committee failed to explain why it couldn't get the information from other sources (one of the Mazars factors), not just from former President Trump. The court also said that the Committee's need is outweighed by the burdens of the subpoena (another of the Mazars factors). The court explained, "The more Congress can invade the personal sphere of a former President, the greater the leverage Congress would have on a sitting President."

Next, the court upheld the subpoena in part for documents related to the "GSA track," those documents related to former President Trump's lease agreement with the GSA for the Old Post Office Building. The Committee sought this information in order to conduct oversight and consider tightening requirements related to Emoluments Clauses and conflict-of-interest issues in GSA contracting, among other things. The court said that separation-of-powers concerns all but disappeared, because former President Trump entered into the lease before he became president and retained the lease after he left office, and because he's no longer in office. But it also said that the subpoena wasn't tailored to meet the Committee's legislative interests. So the court upheld the subpoena only as to the financial records of former President Trump, Trump Old Post Office LLC, and the Trump Organization. "The remaining entities are not evidently within the scope of the Committee's GSA track.

Finally, the court upheld the subpoena in part for documents related to the "emoluments track," those documents related to potential Foreign Emoluments Clause violations by former President Trump. The court said that the Committee had authority to seek these documents as part of its oversight and enforcement of the Emoluments Clauses, but only for the years 2017 and 2018.

Stay tuned for the appeal.

August 11, 2021 in Cases and Case Materials, Congressional Authority, Executive Authority, Executive Privilege, News, Opinion Analysis, Separation of Powers | Permalink | Comments (0)

Thursday, June 17, 2021

Court Kicks Obamacare Challenge for Lack of Standing

The Supreme Court ruled today that plaintiffs lacked standing to challenge the Affordable Care Act's zeroed-out minimum coverage provision (or "individual mandate"), and the rest of the Act, too. The ruling deals a sharp blow to opponents of the ACA. It means that the ACA--all of it--stays on the books.

The case, Texas v. California, started when Congress zeroed-out the ACA's minimum coverage provision. Remember that Congress couldn't muster the votes to overturn the ACA, so instead it set the tax-penalty for the minimum coverage provision at $0. The move invited opponents of the Act to challenge the provision as unconstitutional--exceeding congressional authority under its taxing power, because, well, the provision couldn't raise any revenue, and therefore couldn't be a "tax." (Recall that the Court in NFIB upheld the minimum coverage provision under Congress's taxing power.) The move also invited opponents to claim that the entire ACA was unconstitutional, because the rest of the well-integrated, closely-knit Act couldn't be severed from the minimum coverage provision. (Recall that the government originally argued that the minimum coverage provision was a necessary part of the larger ACA in order to provide universal access to health insurance while at the same time keeping costs affordable. Opponents picked up on this and argued that the minimum coverage provision couldn't be severed from the community-rating provision, the non-discrimination provision, and the rest of the Act (including things like the requirement that insurers allow young adults to stay on their parents' insurance until age 26).

More than a dozen states, led by Texas, and two individuals accepted the invitation and sued. They won big in the district court (which held the minimum coverage provision unconstitutional and inseverable from the rest of the Act). The Fifth Circuit agreed that the minimum coverage provision was unconstitutional, but remanded for further consideration of severability.

The Court today didn't touch the merits issues and instead ruled that the plaintiffs lacked standing to sue. The Court said that the two individual plaintiffs lacked standing, because the zeroed-out minimum coverage provision didn't, and couldn't, harm them, because the government had no way to enforce it. The Court wrote that "there is no possible Government action that is causally connected to the plaintiffs' injury--the costs of purchasing health insurance." Without connecting the minimum coverage provision to their harm, the plaintiffs lacked standing.

The Court said that the states lacked standing, too, but for different reasons. First, the Court held that the minimum coverage provision didn't cause the states to incur costs for increased enrollment in state-operated medical insurance programs (like CHIP). The Court said that the states "failed to show how this injury is directly traceable to any actual or possible unlawful Government conduct in enforcing [the minimum coverage provision]," and that in any event the states failed to show that individuals actually enrolled in state medical insurance programs because of the zeroed-out provision. Next, the Court held that the provision didn't cause them to incur costs directly, as insurers of their own employees, because other portions of the Act (not the minimum coverage provision) required them to provide insurance to their own employees.

Justice Alito wrote a sharp dissent, joined by Justice Gorsuch. Justice Alito argued that the states had standing, because "[t]he ACA saddles them with expensive and burdensome obligations, and those obligations are enforced by the Federal Government." He said that states incur costs for complying with ACA reporting requirements, for providing health insurance to their employees, and for complying with other portions of the ACA--all of which are connected to, and inseverable from, the challenged minimum coverage provision. Justice Alito went on to argue that the minimum coverage provision was unconstitutional, and other ACA obligations that harmed the states were inseverable from the minimum coverage provision, and therefore must go, too.

June 17, 2021 in Cases and Case Materials, Congressional Authority, Courts and Judging, News, Standing | Permalink | Comments (0)