Monday, January 20, 2020
The Ninth Circuit ruled on Friday that a media plaintiff had a First Amendment right to access nonconfidential civil complaints, and that one court policy violated that right, where another court policy didn't. The ruling sets a test and clarifies the law in the Ninth Circuit.
The case, Courthouse News Service v. Planet, arose when CNS challenged the process of releasing nonconfidential complaints to the press in Ventura County Superior Court. That process, dubbed "no access before process," meant that the court put newly filed civil complaints through a seven-step administrative process before releasing them to the media. That could take a couple days, so CNS sued, seeking immediate access. (Venture County doesn't use electronic filing; it's all paper.)
As the case worked its way through the federal courts, Ventura County changed its practice to a "scanning policy." Under the scanning policy, the court scanned complaints and made them available the same day (in most cases) on court computers. CNS still wanted immediate access, however, so the case moved on.
The Ninth Circuit said that CNS has a qualified First Amendment right of access to newly filed, nonconfidential civil complaints, and that the "no access before process" violated it, while the "scanning policy" didn't. The Ninth Circuit held that courts could adopt reasonable restrictions on access resembling time, place, and manner regulations. These could result in incidental delays in access, so long as they are content-neutral, narrowly tailored and necessary to serve the court's important interest in the fair and orderly administration of justice. Or: "Ventura County must demonstrate first that there is a 'substantial probability' that its interest in the fair and orderly administration of justice would be impaired by immediate access, and second, that no reasonable alternatives exist to 'adequately protect' that government interest."
As to the "no access before process" policy, the court said that it resulted in significant delays, but didn't serve (and in fact were entirely unrelated to) the stated interests in privacy and confidentiality, complying with accounting protocols, controlling quality and accuracy, promoting efficient court administration, or promoting the integrity of court records. It also said that the policy "caused far greater delays than were necessary to protect [these interests]."
As to the scanning policy, the court said that it directly related to the court's asserted interests and that, after the court changed its filing hours, the policy resulted in "near perfect" same-day access to the complaints. (Before the court changed its filing hours, there wasn't near perfect same-day access, but the Ninth Circuit gave the court a pass, because it faced resource constraints.)
The ruling leaves the current scanning policy in place.
Judge Smith concurred in part, arguing that the majority wrongly applied strict scrutiny, and instead should have applied "reasonable time, place and manner restrictions."
Wednesday, January 15, 2020
Judge Peter J. Messitte (D. Md.) entered a preliminary injunction against enforcement of President Trump's executive order that effectively authorized state and local governments to veto federal resettlement of refugees. The ruling, while preliminary, deals a sharp blow to President Trump's effort to empower state and local governments to restrict refugee resettlement. At the same time, it's a significant victory for refugees and the refugee-rights community.
President Trump's EO provides that the federal government "should resettle refugees only in those jurisdictions in which both the State and local governments have consented to receive refugees under the Department of State's Reception and Placement Program." The EO effectively allowed state and local governments to veto resettlement.
The court ruled that this likely violated 8 U.S.C. Sec. 1522, which sets out the "conditions and considerations" for refugee resettlement and assistance programs:
[The statute] speaks in terms of "consulting" and "consultation" between and among the Resettlement Agencies and the State and Local Governments; establishes that the Resettlement Agencies and State and Local Governments must regularly "meet" to "plan and coordinate"; even acknowledges that "maximum consideration" be given to "recommendations" States make to the Federal Government. The challenged Order definitely appears to undermine this arrangement. As to States or Local Governments that refuse to give written consents, there will be no consultation, no meetings with the Resettlement Agencies, not just "recommendations." Those State and Local Governments can simply give or withhold their written consents to the resettlement of refugees within their borders.
The court also held that the EO "appears to run counter to the Refugee Act's stated purpose" and the congressional intent. (A report on the bill from the House Judiciary Committee couldn't have been clearer: "The Committee emphasizes that these requirements [of the act] are not intended to give States and localities any veto power over refugee placement decisions, but rather to ensure their input into the process and to improve their resettlement planning capacity.")
The court also held that individual government officials' enforcement of the EO was likely arbitrary and capricious, and thus invalid, under the Administrative Procedure Act.
The ruling preliminarily prohibits enforcement of the EO. But it also telegraphs the court's conclusion on the merits: the EO is unlawful.
Thursday, January 2, 2020
In their article, Reconstituting the Future: The Equality Amendment, well-known feminist theorists Catharine A. MacKinnon & Kimberlé W. Crenshaw have argued that equality needs to be re-envisioned in an intersectional and progressive manner requiring constitutional amendment. In the Yale Journal Law Forum they contend their proposal
centers on rectifying the founding acts and omissions of race and sex, separately and together, and incorporates similar but distinct inequalities. It is informed by prior efforts to integrate equality into the constitutional landscape that have been decimated by political reversals and doctrinal backlash. It aggregates the insights, aspirations, and critiques of many thinkers and actors who have seized this moment to breathe new life into the nation’s reckoning with inequality. It neither looks back to celebrate amendments whose transformative possibilities have been defeated nor participates in contemporary hand-wringing over equality’s jurisprudential limitations. It seeks to make equality real and to matter now. We argue that a new equality paradigm is necessary and present one form it could take.
The article elaborates on the rationales for each section. The entire proposed amendment reads:
The Equality Amendment
Whereas all women, and men of color, were historically excluded as equals, intentionally and functionally, from the Constitution of the United States, subordinating these groups structurally and systemically; and
Whereas prior constitutional amendments have allowed extreme inequalities of race and/or sex and/or like grounds of subordination to continue with-out effective legal remedy, and have even been used to entrench such inequalities; and
Whereas this country aspires to be a democracy of, by, and for all of its people, and to treat all people of the world in accordance with human rights principles;
Therefore be it enacted that—
Section 1. Women in all their diversity shall have equal rights in the United States and every place subject to its jurisdiction.
Section 2. Equality of rights shall not be denied or abridged by the United States or by any State on account of sex (including pregnancy, gender, sexual orientation, or gender identity), and/or race (including ethnicity, national origin, or color), and/or like grounds of subordination (such as disability or faith). No law or its interpretation shall give force to common law disadvantages that exist on the ground(s) enumerated in this Amendment.
Section 3. To fully realize the rights guaranteed under this Amendment, Congress and the several States shall take legislative and other measures to prevent or redress any disadvantage suffered by individuals or groups because of past and/or present inequality as prohibited by this Amendment, and shall take all steps requisite and effective to abolish prior laws, policies, or constitutional provisions that impede equal political representation.
Section 4. Nothing in Section 2 shall invalidate a law, program, or activity that is protected or required under Section 1 or 3.
This just-published relatively brief (22 pages) essay would make a terrific addition to any Constitutional Law syllabus, as well as any course in Feminist Legal Theory or Gender and Law.
pictured: Professors Crenshaw (left) & MacKinnon (right)
January 2, 2020 in Comparative Constitutionalism, Courts and Judging, Equal Protection, Fourteenth Amendment, Gender, Interpretation, Privacy, Race, Recent Cases, Scholarship | Permalink | Comments (0)
Wednesday, January 1, 2020
For his 2019 Year-End Report on the Federal Judiciary, Chief Justice Roberts chose to include in his brief introductory remarks some words about democracy:
It is sadly ironic that John Jay’s efforts to educate his fellow citizens about the Framers’ plan of government fell victim to a rock thrown by a rioter motivated by a rumor. Happily, Hamilton, Madison, and Jay ultimately succeeded in convincing the public of the virtues of the principles embodied in the Constitution. Those principles leave no place for mob violence. But in the ensuing years, we have come to take democracy for granted, and civic education has fallen by the wayside. In our age, when social media can instantly spread rumor and false information on a grand scale, the public’s need to understand our government, and the protections it provides, is ever more vital. The judiciary has an important role to play in civic education, and I am pleased to report that the judges and staff of our federal courts are taking up the challenge.
[emphasis added]. The emphasized bolded language, seeming to blame the population of the United States for taking democracy for granted and social media for spreading rumors did not sit well with some commentators who argued that Roberts should consider his own contributions to undermining democracy: Shelby County (regarding voting rights); Rucho (decided in June of this year holding partisan gerrymandering is a political question not suitable for the federal courts); McCutcheon (finding campaign finance regulations unconstitutional). For others, Roberts's language regarding civic education is welcome and demonstrates his recognition of the divides in the nation.
Noticeably absent from Roberts's remarks was any reference to the impeachment trial which looms in the Senate over which he will preside. Also absent was any update on the sexual misconduct claims against members of the judiciary which he mentioned in last year's report.
Saturday, December 28, 2019
The Ninth Circuit last week refused to grant an emergency temporary stay of a district judge's temporary injunction against enforcement of President Trump's October 4 Proclamation that restricts entry into the United States by aliens "who will financial burden the United States healthcare system." The ruling means that the lower court's injunction stays in place, and the government cannot enforce the Proclamation. The court expedited review of the government's motion for a stay pending appeal, however, and will hear oral argument on January 9.
President Trump's proclamation, titled "Presidential Proclamation on the Suspension of Entry of Immigrants Who Will Financially Burden the United States," requires aliens to show proof of approved health insurance before getting a visa or otherwise entering the United States. Plaintiffs sued, arguing that the Proclamation exceeded the President's authority under law, that the President therefore engaged in impermissible lawmaking in violation of the separation of powers, and that the law impermissibly delegated lawmaking authority to the President in violation of the nondelegation doctrine. The district court agreed and issued a temporary injunction against enforcement of the Proclamation.
The Ninth Circuit most recently denied the government's request for an emergency temporary stay. The court wrote,
Here, the status quo would be disrupted by granting the temporary stay request. Therefore, we deny the request for a temporary stay. The Proclamation has not yet gone into effect. The changes it would make to American immigration policy are major and unprecedented; the harms the government alleges it will suffer pending review of the motion for stay pending appeal are long-term rather than immediate. Our ruling is based solely on the absence of a sufficient exigency to justify changing the status quo, particularly during the few weeks before scheduled oral argument on the merits of the emergency motion; we do not consider the merits of the dispute in any respect.
The court went on to expedite briefing and oral argument on the government's motion for a stay pending appeal.
Judge Bress dissented, arguing that "the district court's decision is clearly wrong as a matter of law." According to Judge Bress, "[i]n the supposed name of the separation of powers, the district court struck down part of a longstanding congressional statute, invalidated a presidential proclamation, and purported to grant worldwide relief to persons not before the court. And it did so based on the nondelegation doctrine--among the most brittle limbs in American constitutional law--and a reading of 8 U.S.C. Sec. 1184(f) that the Supreme Court expressly rejected in Trump v. Hawaii.
December 28, 2019 in Cases and Case Materials, Congressional Authority, Courts and Judging, Executive Authority, News, Nondelegation Doctrine, Opinion Analysis, Separation of Powers | Permalink | Comments (0)
Monday, December 23, 2019
The United States Supreme Court granted certiorari to two Ninth Circuit cases and consolidated them: Our Lady of Guadalupe School v. Morrisey-Berru and St. James School v. Biel.
Both cases involve an application of the First Amendment's "ministerial exception" first accepted by the Court in 2012 in Hosana-Tabor Evangelical Lutheran Church and School v. EEOC. In the unanimous decision in Hosanna-Tabor, the Court found that the school teacher Cheryl Perich was tantamount to a minister. Thus, under both Religion Clauses of the First Amendment, as a "minister" her employment relations with her church school employer were eligible for a "ministerial exception" to the otherwise applicable employment laws, in that case the Americans with Disabilities Act.
But who is a "ministerial" employee subject to the exemption from employment laws?
Chief Justice Roberts' opinion for the Court in Hosanna-Tabor declined to provide a test for deciding whether or not an employee was within the ministerial exception. However, the Court did extensively analyze Cheryl Perich's employment. And the lower courts have been struggling with how to analogize to the Court's conclusions regarding the "called teacher" Perich.
In the unpublished and very brief panel opinion in Morrisey-Berru, the court stated that the Court in Hosanna-Tabor considered four factors in analyzing whether the exception applied:
- (1) whether the employer held the employee out as a minister by bestowing a formal religious title;
- (2) whether the employee’s title reflected ministerial substance and training;
- (3) whether the employee held herself out as a minister; and
- (4) whether the employee’s job duties included “important religious functions.”
Applying those factors, the Ninth Circuit panel stated:
Considering the totality of the circumstances in this case, we conclude that the district court erred in concluding that Morrissey-Berru was a “minister” for purposes of the ministerial exception. Unlike the employee in Hosanna-Tabor, Morrissey-Berru’s formal title of “Teacher” was secular. Aside from taking a single course on the history of the Catholic church, Morrissey-Berru did not have any religious credential, training, or ministerial background. Morrissey-Berru also did not hold herself out to the public as a religious leader or minister.
Morrissey-Berru did have significant religious responsibilities as a teacher at the School. She committed to incorporate Catholic values and teachings into her curriculum, as evidenced by several of the employment agreements she signed, led her students in daily prayer, was in charge of liturgy planning for a monthly Mass, and directed and produced a performance by her students during the School’s Easter celebration every year. However, an employee’s duties alone are not dispositive under Hosanna-Tabor’s framework. See Biel v. St. James Sch. (9th Cir. 2018). Therefore, on balance, we conclude that the ministerial exception does not bar Morrissey-Berru’s ADEA claim.
Biel, relied upon in Morrisey-Berru's unpublished opinion, was much more contentious. Reversing the district court, the Ninth Circuit panel's opinion in Biel similarly considered four factors from Hosanna-Tabor and applying them to the school teacher Kristen Biel concluded that she was not a ministerial employee. For the panel in Biel, she
by contrast, has none of Perich’s credentials, training, or ministerial background. There was no religious component to her liberal studies degree or teaching credential. St. James had no religious requirements for her position. And, even after she began working there, her training consisted of only a half-day conference whose religious substance was limited. Unlike Perich, who joined the Lutheran teaching ministry as a calling, Biel appears to have taken on teaching work wherever she could find it: tutoring companies, multiple public schools, another Catholic school, and even a Lutheran school.
Also in contrast to Perich, nothing in the record indicates that Biel considered herself a minister or presented herself as one to the community. She described herself as a teacher and claimed no benefits available only to ministers.
Only with respect to the fourth consideration in Hosanna-Tabor do Biel and Perich have anything in common: they both taught religion in the classroom. Biel taught lessons on the Catholic faith four days a week. She also incorporated religious themes and symbols into her overall classroom environment and curriculum, as the school required. We do not, however, read Hosanna-Tabor to indicate that the ministerial exception applies based on this shared characteristic alone. If it did, most of the analysis in Hosanna-Tabor would be irrelevant dicta, given that Perich’s role in teaching religion was only one of the four characteristics the Court relied upon in reaching the conclusion that she fell within the ministerial exception.
And even Biel’s role in teaching religion was not equivalent to Perich’s.. . .
The panel's opinion in Biel was not unanimous. A dissenting judge would have held that Biel was a minister in large part because her teaching duties at a Catholic school included religious teachings; the judge was "struck by the importance of her stewardship of the Catholic faith to the children in her class. Biel’s Grade 5 Teacher title may not have explicitly announced her role in ministry, but the substance reflected in her title demonstrates that she was a Catholic school educator with a distinctly religious purpose."
The petition for rehearing en banc was denied, but with a lengthy dissenting opinion by Judge R. Nelson joined by an addition eight Ninth Circuit Judges - - - that's nine Judges dissenting. Judge Nelson's opinion argues that the panel opinion in Biel (as well as the opinion in Morrisey-Berru) had taken the narrowest possible interpretation of Hosanna-Tabor, so narrow as to have "excised the ministerial exception, slicing through constitutional muscle and now cutting deep into core constitutional bone." For the dissenting judges,
In turning a blind eye to St. James’s religious liberties protected by both Religion Clauses, we exhibit the very hostility toward religion our Founders prohibited and the Supreme Court has repeatedly instructed us to avoid.
With the Court's grant of certiorari in Biel and Morrisey-Berru, perhaps there will be more clarity regarding the factors of Hosanna-Tabor and how they should be applied to teachers in private schools run by religious organizations.
The facts of Biel may strike many as particularly sympathetic: Kristen Biel was diagnosed with breast cancer and terminated when she said she would have to take some time off work when she underwent chemotherapy. St. James's principal, Sister Mary Margaret, told Biel it was not "fair" "to have two teachers for the children during the school year.” If she had worked for a nonreligious school, Biel would have been protected by the Americans with Disabilities Act.
The Court is set to decide whether Biel and seemingly almost every teacher at a private school operated by a religious organization should be excluded from the employment protections afforded other workers.
[image "Chalk Lessons, or the Black-board in the Sunday School. A Practical Guide for Superintendents and Teachers" by Frank Beard (1896), via]
Thursday, December 19, 2019
The Fourth Circuit ruled in NAACP v. Bureau of the Census that a lower court erred in dismissing the plaintiffs' claims that the "methods and means" that the Census Bureau adopted for the 2020 Census would under-count African Americans. The court ordered the district court to allow the plaintiffs to file an amended complaint. The ruling said nothing about the merits.
The case involves the NAACP's claims under the Enumeration Clause and the Administrative Procedure Act that the Census Bureau's planned methodology for the 2020 Census will disproportionately undercount African Americans. The plaintiffs filed their initial complaint alleging certain deficiencies in the Bureau's approach and methodology. The district court dismissed the Enumeration Clause claim as unripe; it dismissed the APA claim on jurisdictional grounds. Just days after the district court ruled, the Bureau issued its "Operational Plan" for the 2020 Census. The court granted the plaintiffs' motion to amend their complaint as to the APA, but denied it as to the Enumeration Clause, holding that this claim was still unripe. (The court held that the plaintiffs' claims wouldn't become ripe until after the 2020 Census.) The court then dismissed the case.
The Fourth Circuit reversed as to the Enumeration Clause. It held that "at the latest" the case was ripe "when the defendants announced that the Operational Plan was final and the plaintiffs sought leave to file an amended complaint." Moreover, it said that "delayed adjudication would result in hardship to the plaintiffs."
The court remanded the case with instructions to allow the plaintiffs to file an amended complaint as to the Enumeration Clause claim (but not as to the APA). It noted, however, that "we do not express any view regarding" the merits.
The Fifth Circuit yesterday ruled that the Affordable Care Act's individual mandate is unconstitutional. At the same time, the court remanded to the district court to reconsider whether the individual mandate is severable from the rest of the Act (and therefore whether other portions of the Act can stand) and to consider the government's new request for relief.
We posted on the district court's ruling here.
The ruling is a big victory for opponents of the ACA, especially the individual mandate. But whether the case also strikes other portions of the ACA, and how far the ruling sweeps, are still undetermined.
The three-judge panel ruled that the individual mandate cannot stand as an exercise of Congress's taxing power, because Congress set the tax penalty at $0. With no revenue potential, the provision cannot be a tax:
Now that the shared responsibility payment amount is set at zero, the provision's savings construction [the NFIB ruling that the individual mandate is a valid exercise of Congress's taxing power] is no longer available. The four central attributes that once saved the statute because it could be read as a tax no longer exist. Most fundamentally, the provision no longer yields the "essential feature of any tax" because it does not produce "at least some revenue for the Government." Because the provision no longer produces revenue, it necessarily lacks the three other characteristics that once rendered the provision a tax. The shared-responsibility payment is no longer "paid into the Treasure by taxpayer[s] when they file their tax returns" because the payment is no longer paid by anyone. The payment amount is no longer "determined by such familiar factors as taxable income, number of dependents, and joint filing status." The amount is zero for everyone, without regard to any of these factors. The IRS no longer collects the payment "in the same manner as taxes" because the IRS cannot collect it at all.
The court went on to say that the district court failed to consider carefully enough whether the individual mandate is severable from the rest of the Act--that is, whether other provisions of the ACA can stand without the individual mandate. (The government switched its position on appeal and argued that the mandate is inseverable.) The district court previously ruled that it wasn't severable, and thus struck the entire Act, including the guaranteed-issue and community-rating provisions, but also including every other provision (like the provision that says young people can stay on their parents' insurance until age 26). But the Fifth Circuit held that the district court's analysis wasn't sufficient, and remanded to the court "to employ a finer-toothed comb . . . and conduct a more searching inquiry into which provisions of the ACA Congress intended to be inseverable from the individual mandate."
The court also directed the lower court to consider the government's new request for relief. The government switched positions on appeal and argued that, while the individual mandate is inseverable, the court should enjoin enforcement only as to the plaintiff states and only as to those provisions that injure the plaintiffs.
In short, while yesterday's ruling struck the individual mandate, it's not yet clear exactly how far that ruling will extend to also strike other provisions of the ACA, how far it will extend geographically, and how far it will extend beyond the plaintiffs in this case.
Judge King dissented, arguing that the plaintiffs lacked standing, and that (in any event) the individual mandate was constitutional.
Friday, December 6, 2019
SCOTUS Grants Certiorari in First Amendment Challenge to Delaware Constitution's Judicial Appointment Provision
The United States Supreme Court granted certiorari in Adams v. Carney, Governor of Delaware in which the Third Circuit held several sections of the Delaware Constitution regarding the selection of judges violated the First Amendment.
Centrally, the Delaware Constitution, Art IV §3 seeks to achieve a partisan balance in the judiciary and provides that appointments to the state judiciary "shall at all times be subject to the following limitations":
First, three of the five Justices of the Supreme Court in office at the same time, shall be of one major political party, and two of said Justices shall be of the other major political party.
Second, at any time when the total number of Judges of the Superior Court shall be an even number not more than one-half of the members of all such offices shall be of the same political party; and at any time when the number of such offices shall be an odd number, then not more than a bare majority of the members of all such offices shall be of the same major political party, the remaining members of such offices shall be of the other major political party.
Third, at any time when the total number of the offices of the Justices of the Supreme Court, the Judges of the Superior Court, the Chancellor and all the Vice-Chancellors shall be an even number, not more than one-half of the members of all such offices shall be of the same major political party; and at any time when the total number of such offices shall be an odd number, then not more than a bare majority of the members of all such offices shall be of the same major political party; the remaining members of the Courts above enumerated shall be of the other major political party.
In its opinion, the Third Circuit panel found that this political balancing violated the First Amendment, concluding that it was not within the protections for political policymakers of Elrod v. Burns (1976) and Branti v. Finkel (1980). The Third Circuit found that even assuming that "judicial political balance is a vital Delaware interest," Delaware failed to demonstrate that this goal could not be realized using less restrictive means of infringing on the plaintiff's associational interests.
And while the Third Circuit found that the plaintiff, a retired Delaware attorney who belonged to neither major party. lacked standing to challenge the Delaware constitutional provisions regarding Family Court and the Court of Common Pleas. The United States Supreme Court, however, has directed briefing on the issue of Article III standing, presumably pertinent to the other provisions.
Wednesday, December 4, 2019
The Second Circuit ruled that Deutsche Bank and Capital One have to comply with subpoenas issued by the House Financial Services and Permanent Select Committee on Intelligence for financial records related to President Trump and his businesses. The court denied a preliminary injunction to halt the disclosures. While the ruling is technically preliminary, the court noted that it's effectively a ruling on the merits.
The ruling is yet another blow to President Trump and his continuing quest to keep his financial records secret. (We posted most recently here, on the Supreme Court's stay of a D.C. Circuit mandate to Mazars to release his financial records.) It's also yet another candidate for Supreme Court review.
After the Committees subpoenaed the banks, President Trump, his three oldest children, and some of their organizations sued the banks and the Committees seeking to halt the disclosure. The plaintiffs raised statutory and constitutional claims, although the court noted that President Trump specifically identified himself only as a private citizen.
The court held that the plaintiffs weren't likely to succeed on any of their claims. As to the first statutory claim, the court held that the Right to Financial Privacy Act did not prohibit the disclosures, because the RFPA doesn't apply to Congress. As to the second statutory claim, the court ruled that 26 U.S.C. Sec. 6103 and its several relevant subsections didn't bar the Committees from seeking the records from the banks.
As to the constitutional claim, the court rejected the plaintiffs' contention that the Committees exceeded their power to investigate in issuing the subpoenas. The court noted the breadth of the subpoenas, but nevertheless held that the Committees had a valid legislative purpose (not focusing on possible illegalities committed by the President, but instead "on the existence of such activity in the banking industry, the adequacy of regulation by relevant agencies, and the need for legislation") and that the "public need" to investigate for that purpose "overbalances any private rights affected." On this balancing, the court wrote,
"[T]he weight to be ascribed to" the public need for the investigations the Committees are pursuing is of the highest order. The legislative purposes of the investigations concern national security and the integrity of elections, as detailed above. By contrast, the privacy interests concern private financial documents related to businesses, possibly enhanced by the risk that disclosure might distract the President in the performance of his official duties.
The court went on to hold that the subpoenas were sufficiently tailored to the Committees' legitimate purposes.
The court identified one request, however, that "might reveal sensitive personal details having no relationship to the Committees' legislative purposes," and others "that have such an attenuated relationship to the Committees' legislative purposes that they need not be disclosed." The court remanded to the district court and specified a procedure by which the court could exclude certain "sensitive documents."
As to all other documents not identified for exclusion or possible exclusion, however, the court ordered the banks to "promptly transmit to the Committees in daily batches as they are assembled, beginning seven days from the date of this opinion."
The court rejected the amicus government's separation-of-powers argument, holding that this case isn't about the separation of powers (because it involves a congressional request from a third party for information of the President in his personal capacity).
Judge Livingston dissented. She agreed with the majority that the plaintiffs lacked a likelihood of success on the merits of their statutory claims. But she disagreed about how to treat the constitutional claims. She argued that the case raises serious separation-of-powers concerns, and that the current record simply isn't well enough developed to evaluate those concerns. So she argued for a full remand, "directing the district court promptly to implement a procedure by which the Plaintiffs may lodge their objections to disclosure with regard to specific portions of the assembled material and so that the Committees can clearly articulate, also with regard to specific categories of information, the legislative purpose that supports disclosure and the pertinence of such information to that purpose."
Monday, December 2, 2019
The Court heard oral argument in New York State Rifle & Pistol Association Inc. v. City of New York, New York regarding a New York City regulation that allows a person having a "premises license" — one the most restricted type of licenses — for handguns to “transport her/his handgun(s) directly to and from an authorized small arms range/shooting club, unloaded, in a locked container, the ammunition to be carried separately,” but further defines an "authorized" range/shooting club as limited to facilities located in New York City. Recall that the Second Circuit unanimously upheld the regulation.
There is a substantial mootness question here: the City of New York changed the regulation to allow for transport to another residence and a range or shooting club, whether or not those secondary places are within the City. Additionally, the state of New York amended its law to provide for the legality of transport. The Court had previously rejected a filed "Suggestion of Mootness" and instructed the parties to address the issue at oral argument.
Arguing for the NYSRPA, a state gun-rights organization, Paul Clement broached the subject of mootness in his introduction and Justice Ginsburg asked him "So what's left of this case? The Petitioners have gotten all the relief that they sought." While Clement argued they were entitled to an injunction, the mootness issue resurfaced again and again. Arguing for the United States, supporting the gun rights organization, Principal Deputy Solicitor General Jeffrey Wall contended the named plaintiffs could be entitled to damages and thus the case was not moot. On behalf of the City of New York, Richard Dearing argued that "changes in state and city law have given Petitioners everything they asked for and, indeed, more than that," and that rather than view the City's actions "skeptically," it is a "good thing and not a cause for concern when the government responds to litigation by resolving matters through the democratic process." As to any damages claim that might be added in the future by petitioners, Dearing argued that this would be a unique support for the courts exercising Article III power.
On the merits, an underlying argument concerns the level of scrutiny suitable for evaluating the law. The Second Circuit panel tracked the analytic structure articulated previously by the Second Circuit in New York State Rifle & Pistol Ass'n v. Cuomo, decided in 2015. The Second Circuit concluded that intermediate scrutiny was the appropriate standard based on its analysis of two factors: "(1) ‘how close the law comes to the core of the Second Amendment right’ and (2) ‘the severity of the law’s burden on the right.' " The level of scrutiny to be applied to gun regulations was a question left open by the Court's decisions in District of Columbia v. Heller (2008) and McDonald v. City of Chicago (2010). Yet the oral argument did not delve deeply into this issue. Wall argued that the Second Circuit had applied a "watered-down form of scrutiny" and the correct standard is simply that the "text, history, and tradition" mandate "real protection" for the Second Amendment, seemingly always strict scrutiny.
Justice Kavanuagh, like Justice Thomas, had no questions, and whether or not the Court will dismiss the case as moot is difficult to predict, although it would seem to be a likely outcome. Note also that the Court's legitimacy should it reach the merits in this case will certainly be questioned; an amicus brief by several Senators has made that point and attracted attention.
Tuesday, November 26, 2019
Judge Ketanji Brown Jackson (D.D.C.) ruled yesterday that former White House Counsel Don McGahn must comply with a subpoena issued by the House Judiciary Committee and testify before the Committee. The ruling rejects the sweeping claim that high-level presidential advisors enjoy categorical testimonial immunity.
At the same time, the court held that McGahn could assert appropriate privileges (like executive privilege) to specific questions from the Committee.
The ruling deals a sharp blow to the Trump Administration and its attempts to categorically shield certain White House officials from testifying before Congress. It applies directly to McGahn, of course; but the reasoning applies equally, or even with greater force, to House testimony by senior presidential advisors in the impeachment inquiry. (Why "or even with greater force"? Because the House may be on even firmer ground in issuing any subpoenas in the course of an impeachment inquiry.)
The administration will surely appeal. (DOJ is representing McGahn and presented arguments on behalf of the executive branch.) As a result, we're unlikely to see McGahn testify anytime soon. If the parties continue to press the issue, it'll surely go to the Supreme Court. (The 2008 Miers case, which the court said was "on all fours" with this one, didn't go up on appeal, because the parties settled. That could happen here, too.)
The case arose when the Committee sued McGahn to enforce its subpoena against him to testify in its investigation into whether President Trump and his associates engaged in misconduct in the run-up to the 2016 presidential election. DOJ, representing McGahn, argued that McGahn was a high-level presidential advisor who enjoyed absolute testimonial immunity before Congress.
The court ruled that it had jurisdiction over the case and then rejected DOJ's sweeping claim of immunity. In short, the court held that the issue was already decided by Judge Bates in 2008, in Committee on Judiciary v. Miers. Here's a nice summary (pp. 41-42 of the opinion):
Unfortunately for DOJ, and as explained fully below, these contentions about the relative power of the federal courts [as to lack of jurisdiction], congressional committee, and the President distort established separation-of-powers principles beyond all recognition. Thus, ultimately, the arguments that DOJ advances to support its claim of absolute testimonial immunity for senior-level presidential aides transgress core constitutional truths (notwithstanding OLC's persistent heralding of these and similar propositions). By contrast, textbook constitutional law readily reveals that, precisely because the Constitution bestows upon the Judiciary the power to demarcate the boundaries of lawful conduct by government officials, the federal courts have subject-matter jurisdiction to entertain subpoena-enforcement disputes concerning legislative subpoenas that have been issued to Executive branch officials. It is similarly well established that, because the Constitution vests the Legislature with the power to investigate potential abuses of official authority--when necessary to hold government officials (up to, and including, the President) accountable, as representatives of the People of the United States--then House committees have both Article III standing and a cause of action to pursue judicial enforcement of their duly authorized and legally enforceable requests for information. What is missing from the Constitution's framework as the Framers envisioned it is the President's purported power to kneecap House investigations that Executive branch operations by demanding that his senior-level aides breach their legal duty to respond to compelled congressional process.
Luckily for this Court, an existing precedent that is on all fours with the instant matter (Miers) already systematically dismantles the edifice that DOJ appears to have erected over the years to enshrine the proposition that a President's senior-level aides have absolute immunity with respect to legislative subpoenas that Congress issues in the course of its investigations . . . .
November 26, 2019 in Cases and Case Materials, Congressional Authority, Courts and Judging, Executive Authority, Executive Privilege, News, Opinion Analysis, Separation of Powers | Permalink | Comments (0)
Sunday, November 24, 2019
Judge Carl J. Nichols (D.D.C.) earlier this week ordered House Ways and Means Chair Richard Neal to provide President Trump and the court contemporaneous notice if he seeks President Trump's tax returns under New York's TRUST Act. Judge Nichols further ordered Chair Neal not to receive the tax returns for 14 days after any request.
The order is designed to allow the court to determine whether a request is valid. Without the notice and delay requirements, Chair Neal could request, and receive, the records without President Trump's knowledge, let alone his challenge, then immediately mooting his claim.
New York's TRUST Act authorizes certain congressional leaders to request and receive certain public officials' state tax returns, including the tax returns of the president, without providing prior notice to the officials. After enactment, President Trump sued, arguing that the TRUST Act violated Article I, because such a request would lack a legitimate legislative purpose, and the First Amendment. He also sought emergency relief under the All Writs Act, asking the court for an order that would allow the parties to litigate the legality of any request for his state returns before New York authorities would release them (and thus render any challenge moot).
Congressional Democrats moved to dismiss, arguing that they were immune from suit under the Speech and Debate Clause, and that President Trump lacked standing.
The court ruled that it couldn't yet determine whether Chair Neal would be immune from suit under the Speech and Debate Clause, because he hasn't yet requested the records. The court said that Speech & Debate immunity turns on whether any request would concern matters "on which legislative could be had," and thus turns on legislative purpose. But because nobody has made a request, the court can't determine the purpose of any request.
As to standing, the court ruled that President Trump has standing: because "[t]he risk of future harm to Mr. Trump thus requires just a single step by a single actor, Chairman Neal, who is a party to this litigation," "there is sufficiently substantial risk that future harm could occur to warrant limited relief under the All Writs Act."
The court then ordered that Chair Neal inform President Trump and the court at the same time when he makes any request, and not to receive the tax returns for 14 days after. According to the court, this "will prevent Mr. Trump's claims from becoming ripe and then moot almost simultaneously without notice to him or the Court."
November 24, 2019 in Cases and Case Materials, Congressional Authority, Courts and Judging, Executive Authority, First Amendment, News, Opinion Analysis, Separation of Powers | Permalink | Comments (0)
District Court Holds Military Commission Judge, Prosecutors, Marshall Immune from Suit by Former Officer
Judge James E. Boasberg (D.D.C.) dismissed portions of a case brought by a former Guantanamo military commission officer against a military commission judge and prosecutors and U.S. marshals for issuing and aggressively enforcing a subpoena against him. At the same time, the court transferred the plaintiff's Federal Tort Claims Act claim arising out of the same events to the District of Massachusetts.
The ruling means that Gill's claims against the individuals is dismissed, but his claim against the government will proceed in Massachusetts.
The case, Gill v. United States, arose when the chief prosecutor at Guantanamo Bay issued a subpoena to Stephen Gill, a former legal advisor on Abd Al-Rahim Hussein Muhammed Al-Nashiri's military commission case and current civilian, to testify in that case. Gill sought relief under military rules, but he received no response. Upon the request of the prosecutors in the case, military commission judge Colonel Vincent Spath then issued a "warrant of attachment" compelling Gill's testimony and commanding U.S. marshals to procure Gill's presence in Virginia to testify remotely.
Marshals then stormed Gill's home in Massachusetts, arrested and shackled him, searched his home, and forcibly transported him to Virginia.
Gill filed a claim with DOJ under the FTCA. DOJ didn't respond, so he sued. He also sued Spath, the prosecutors, and the marshals under Bivens, arguing that they violated his Fourth Amendment rights.
The district court dismissed Gill's Bivens claims, holding that the judge, prosecutors, and marshals enjoyed immunity. As to the judge, the court held that Spath served in a quasi-judicial role, and thus enjoyed absolute immunity. The court rejected Gill's argument that Spath issued the warrant in "complete absence of all jurisdiction" based on the D.C. Circuit's decision to vacate every single one of Spath's orders between November 2015 and April 2019 because of a conflict of interest. The court ruled that "even if Spath exceeded his grant of judicial authority, he did not act in the clear absence of jurisdiction." As to the prosecutors, the court held that they, too, were entitled to absolute immunity, because they were acting in their advocacy, not investigative or administrative, roles.
In any event, the court held further that all defendants were entitled to qualified immunity, because they didn't violate "clearly established" Fourth Amendment rights.
The court transferred Gill's FTCA claims and request for declaratory relief to the District of Massachusetts.
Monday, November 18, 2019
Chief Justice John G. Roberts, Jr., issued an order today staying the mandate of the D.C. Circuit to Mazars to release President Trump's tax records.
Recall that the D.C. Circuit last week denied en banc review of a three-judge panel ruling that the House Committee on Oversight and Reform had authority to issue its subpoena for President Trump's financial records to his accounting firm, Mazars.
Chief Justice Roberts's brief order simply stayed the D.C. Circuit ruling "pending receipt of a response, due on or before Thursday, November 21, 2019, by 3 p.m. ET, and further order of the undersigned or of the Court." (The order is not a ruling on the merits, and does not foretell what the Court might do.) So we'll get more information on Thursday . . . .
November 18, 2019 in Cases and Case Materials, Congressional Authority, Courts and Judging, Executive Authority, Jurisdiction of Federal Courts, News, Opinion Analysis, Separation of Powers | Permalink | Comments (0)
Tuesday, November 12, 2019
The United States Supreme Court heard oral arguments in Department of Homeland Security v. Regents of the University of California (consolidated with Trump v. NAACP, and McAleenan v. Vidal) regarding the legality of the Trump Administration's rescission of the DACA program forestalling deportation proceedings against undocumented persons who have resided in the United States since childhood.
While the controversy implicates many constitutional issues, the argument before the Court centers on the Administrative Procedure Act (APA) regarding whether the rescission is subject to judicial review and if so, whether the rescission is supportable on the merits. In part these questions revolve around the rescission memo by acting DHS Secretary Elaine Duke (described by some as an "act of rebellion") and a subsequent June 2018 memo by DHS then-Secretary Kirstjen Nielsen (who famously resigned) regarding the rationales for the rescission.
One question is the extent to which these memos adequately considered the issue of reliance on the DACA policy. The Solicitor General contended that
to the extent there are any reliance interests, they're extremely limited. DACA was always meant to be a temporary stop-gap measure that could be rescinded at any time, which is why it was only granted in two-year increments. So I don't think anybody could have reasonably assumed that DACA was going to remain in effect in perpetuity.
Yet some Justices seemed to question the assertion that reliance interests were limited. For example, Justice Breyer stated,
But there are all kinds of reliance interests.
I counted briefs in this Court, as I'm sure you have, which state different kinds of reliance interests. There are 66 healthcare organizations. There are three labor unions.
There are 210 educational associations. There are six military organizations. There are three home builders, five states plus those involved, 108, I think, municipalities and cities, 129 religious organizations, and 145 businesses. . . .
And they all list reliance interests, or most of them list interest reliance -- interests applicable to them, which are not quite the same, they are not quite the same as those of the 700,000 who have never seen any other country.
And more pointedly, Justice Sotomayor implicated the President in the reliance interests:
I think my colleagues have rightly pointed there's a whole lot of reliance interests that weren't looked at, including the very President of -- current President telling DACA-eligible people that they were safe under him and that he would find a way to keep them here.
And so he hasn't and, instead, he's done this. And that, I think, has something to be considered before you rescind a policy.
Yet even if the Court were to find a violation of the APA (a conclusion which is by no means clear at all), the remedy — remand to the agency — is problematical.
Justice Gorsuch gave the Solicitor General an opportunity to respond to the remand remedy, but the SG did not take up this invitation, arguing that the memos were adequate. Later, Justice Breyer asked the Michael Mongan, the Solicitor General of California arguing for the state respondents, whether it was just playing “ping-pong” to send it back to the agency reach the same result but do it differently. Mongan argued that the result was not a foregone conclusion:
We don't truly know what the agency would do if confronted with a discretionary choice. If they knew that DACA were lawful, there's a new Secretary, and the administration has expressed broad sympathy for this population, and they very well might continue the policy or stop short of wholesale termination.
In many ways, the arguments and issues here mirror the citizenship question on the census controversy, Department of Commerce v. New York in which the Court did remand in its decision in June. Whether or not the Court will follow a similar path is difficult to predict.
Monday, November 4, 2019
Second Circuit Rejects President Trump's Effort to Protect Taxes, Establish Categorical Immunity from Criminal Investigation
The Second Circuit today flatly rejected President Trump's attempt to halt a grand jury subpoena for the President's financial records directed at his accounting firm, Mazars, based on a claim of absolute presidential immunity from all criminal processes (including investigations).
The ruling deals a sharp blow to the President and his extraordinary efforts to conceal his taxes. Still, the President is sure to appeal. (Just last month, the President lost in the D.C. Circuit on a similar case, dealing with a House subpoena directed at Mazars.)
Recall that the President filed this federal case to stop a state criminal process, in particular, a state grand jury's subpoena to Mazars for the President's financial records, including his taxes. The district court ruled that the President's suit was barred by Younger abstention and, in the alternative, that the President was not likely to succeed on the merits of his immunity claim.
The Second Circuit reversed on the abstention question, but affirmed on the immunity question. The court noted that the subpoena was directed at Mazars, not President Trump, and therefore did not require the President to do anything that might interfere with his ability to faithfully execute the law. It noted moreover that the subpoena seeks information that has nothing to do with the President's official responsibilities, and is therefore not subject to any claim of executive privilege.
As to the President's claim of absolute privilege against any criminal process (including even an investigation), the court wrote that the scant authority on this question goes only against the President. In particular, it noted that the Court in United States v. Nixon held that executive privilege and separation-of-powers concerns did not preclude the enforcement of a subpoena for presidential records. (As to the separation of powers, the court noted, "That the Court [in Nixon] felt it unnecessary to devote extended discussion to the latter argument strongly suggests that the President may not resist compliance with an otherwise valid subpoena for private and non-privileged materials simply because he is the President.") Moreover, the court noted that even the two OLC memos that the President cited--the 1973 Dixon memo, and the 2000 Moss memo, only go so far as immunity from indictment, not mere investigation.
Although the ruling doesn't mean that we'll see the President's taxes soon--again, the President is sure to appeal, and that'll take some time--it is a sharp blow against his claim of absolute privilege from all criminal process.
Thursday, October 31, 2019
In commentary on Slate, Dahlia Lithwick assesses how or whether we should "turn the page" on the disturbing confirmation hearings of the newest SCOTUS Justice, Brett Kavanaugh.
She writes that two women Justices have
hailed him as a mentor to his female clerks or as a collegial member of the Nine and urged us, in the case of Justice Sonia Sotomayor, to look to the future and turn the page. It is, of course, their actual job to get over it. They will spend the coming years doing whatever they can to pick off a vote of his, here and there, and the only way that can happen is through generosity and solicitude and the endless public performance of getting over it. I understand this.
As a Supreme Court reporter, I am also expected to afford the new justice that same generosity and solicitude. As a journalist, I am finding it hard to do. After all, he is a man who has already publicly condemned his critics to suffer his wrath for embarrassing him. He is a man who has promised that his doubters and detractors will “reap the whirlwind.”
Lithwick raises the question of what we "owe" to the newest Justice — and the Court and the judiciary — a year later.
Tuesday, October 29, 2019
The D.C. Circuit today stayed last week's district court order that the Justice Department release material from the Mueller Report that was redacted because it was part of the grand jury proceeding. We posted on the district court order here.
This means that DOJ won't release the material to the Committee--at least not until the appeals court says so.
The ruling is not a surprise--it simply maintains the status quo--and says nothing about the merits. The court ordered the Committee to file a response to DOJ's emergency motion by Friday, and DOJ to file any reply by next Tuesday.
Friday, October 25, 2019
Court Orders DOJ to Release Grand Jury Material from Mueller Report to House,Validates House Impeachment Inquiry
Judge Beryl A. Howell (D.D.C.) today granted the House Judiciary Committee's application for portions of the Mueller Report that were redacted because they were part of a grand jury proceeding. "Consequently, DOJ is ordered to provide promptly, by October 30, 2019, to HJC all portions of the Mueller Report that were redacted pursuant to Rule 6(e) and any underlying transcripts or exhibits referenced in the portions of the Mueller Report that were redacted pursuant to Rule 6(e). HJC is permitted to file further requests articulating its particularized need for additional grand jury information requested in the initial application."
The ruling deals a sharp blow to the Trump Administration and its attempts to protect grand jury material from the Mueller Report from Congress. It's also a clear validation of the legitimacy of the House's impeachment process. It doesn't plow any new legal ground, however. Indeed, the case is only notable because it rebuffs the administration's extraordinary claims.
Still, there's sure to be an appeal.
The case, In re Application of the Committee on the Judiciary, arose when DOJ refused the House Judiciary Committee's request for grand jury material from the Mueller Report. DOJ cited Federal Rule of Criminal Procedure 6(e). That rule generally prohibits disclosure of "a matter occurring before the grand jury." But it has an exception for disclosure "preliminary to or in connection with a judiciary proceeding." The Committee filed its application with the district court under this exception and requested "the grand jury information referenced in or underlying the Mueller Report as well as grand jury information collected by the Special Counsel relating to four categories of information pursuant to Rule 6(e)'s exception . . . ."
The court ruled for the Committee. The court first concluded that a Senate impeachment trial is "a judicial proceeding." The court said that the phrase "judicial proceeding" has a broad meaning; that an impeachment trial is inherently judicial in nature; that historical practice supports this reading; and that D.C. Circuit law "forecloses any conclusion other than that an impeachment trial is a 'judicial proceeding.'"
The court next concluded that the Committee's investigation is "preliminary to" that judicial proceeding. It held that the Committee's "primary purpose is to determine whether to recommend articles of impeachment," and that requiring anything more would result in the court impermissibly intruding on Congress's Article I powers.
Notably, the court emphasized that the Committee's work investigating impeachment is legitimate and constitutionally permissible, and that nothing requires the House to adopt an "impeachment inquiry resolution" to legitimate its work.
Finally, the court surveyed the several reasons why the Committee "has a 'particularized need' for the requested materials,'" including why and how this material may relate to the Ukraine investigation and to any other possible grounds for impeachment.