Thursday, October 8, 2020
The Trump Administration yesterday filed a motion at the Supreme Court to stay, pending appeal, a district court's order directing the government to continue census operations until October 31. The filing is just the latest in the ongoing efforts of the Trump Administration to rush census operations amid a pandemic. The Administration says that it needs to speed efforts in order to meet the December 31 statutory deadline for reporting census data to the President.
The case is important, because congressional apportionment, legislative districts, and federal funds are all tied to census data. The numbers that come from the 2020 census will lock these in for the next ten years. Moreover, the Trump Administration seems set on the December 31 deadline so that President Trump (and not a potential President Biden) would certify the census numbers to Congress--and possibly try not to include unauthorized noncitizens in the count.
The case arose when the Trump Administration reversed course on a revised census plan that would extend census data collection through October 31 in light of data-collection delays resulting from Covid-19.
The Census Bureau adopted the plan after it lost 47 days of data-collection efforts, and anticipated additional difficulties in collecting data, due to the Covid-19 pandemic. The plan set the end of collection efforts at October 31, 2020. But this would mean that the Bureau would likely not meet the December 31 statutory deadline for reporting data to the President.
So on August 3, the Administration abruptly issued a "Replan," which set the end of data-collection efforts at September 30. The Replan condensed the total time to conduct the census to 49.5 weeks--4.5 weeks shy of the pre-Covid schedule of 54 weeks, and 22 weeks shy of the extended Covid schedule.
A group of organizations, cities, counties, and tribal groups sued to stop the Replan, arguing that it violated the Administrative Procedure Act and the Enumeration Clause. The district court ordered the Replan halted, order data-collection efforts to extend to October 31, and enjoined the Administration from implementing the September 30 and December 31 deadlines.
The Ninth Circuit denied an administrative stay, and, yesterday, partially stayed the district court's order pending appeal. The Ninth Circuit stayed the district court's order enjoining the Administration from complying with the statutory December 31 deadline--the Ninth Circuit said that a court shouldn't order the government to ignore a statutory deadline--but denied a stay of the order enjoining the September 30 stop date. This meant that the Administration would have to continue census data-collection through October 31.
Soon after the Ninth Circuit ruled, the Administration filed for a stay with the Supreme Court. The Administration argued that the APA didn't apply, that in any event the plaintiffs didn't prove a violation of the APA, and that the Administration couldn't meet the December 31 statutory deadline if data collection extended through October 31.
In other words, the Administration says that it couldn't have been arbitrary and capricious (and therefore in violation of the APA) for the Administration to halt data-collection efforts at an earlier date in order to meet the statutory deadline of December 31.
Sunday, October 4, 2020
Supreme Court to Hear First Amendment Challenge to Political Balancing Requirements for State Courts
The Supreme Court will hear oral arguments tomorrow, the opening day of October Term 2020, in Carney v. Adams. The case tests whether Delaware's "political balancing" requirements for its courts violate the First Amendment. A ruling on the merits could have implications for a variety of state and federal commissions that have similar balancing requirements. But first the Court'll need to address the plaintiff's standing . . . .
Here's my Preview of the case, from the ABA Preview of United States Supreme Court Cases, with permission:
Case at a Glance
Delaware attorney James Adams, a registered Independent, considered applying for a judicial position on the state courts. Despite his interest, however, Adams did not apply, because he believed that, as an Independent, he would not qualify. Adams pointed to a state constitutional provision that capped the number of judges from a political party to no more than a bare majority on the courts (the “bare-majority” requirement) and that, for some courts, required that the other judges come from the other major political party (the “major-party” requirement). Instead of applying for judicial vacancies on these courts, Adams sued, arguing that the provision violated the First Amendment.
According to the Supreme Court, the First Amendment permits the government to use a person’s political affiliation as a qualification for “policymaking” positions, but generally not for lower-level government jobs. This case tests how that principle applies to Delaware’s political balancing provision for judges. But before we get to the merits, the case raises a significant question whether Adams even has standing to sue.
- Does Adams have standing to sue, given that he declined to apply for judicial vacancies, and given that he would have qualified for vacancies on two of Delaware’s courts?
- Does the First Amendment prohibit a state from specifying and defining the composition of its courts by reference to the judges’ political parties?
- Is the provision of Delaware’s constitution that caps the judges from one political party on three of the state’s courts severable from the provision that requires that all judges on those courts are members of a major political party?
Delaware’s “Bare Majority” and “Major Party” Political Balancing Requirements
In 1897, delegates to the Delaware constitutional convention sought to reduce the influence of politics on the state’s judiciary. In order to achieve this goal, delegates recommended a political balancing requirement for the state’s principal courts. Under the requirement, these courts could not have more than a single-judge majority from any one political party. The state adopted the bare-majority proposal, and Delaware has had some form of a bare-majority requirement for its principal courts ever since.
In 1951, the state modified the political balancing requirements to exclude third party and unaffiliated voters from applying to serve as judges on the Supreme Court, the Superior Court, and the Chancery Court, the so-called “business courts.” The change retained the existing bare-majority requirement, but it added a major-party requirement that limited service on these courts only to members of a major political party, Republican or Democrat. The major-party requirement helped to ensure that a governor could not side-step the bare-majority requirement by appointing a nominal third-party or independent judge to a seat reserved for the other side. The change stuck through several amendment processes, including in 2005.
Today, Article IV, Section 3, of the Delaware Constitution specifies that these three courts shall include no more than a single-judge majority from one major political party, and that all other judges shall be from the other major political party. (If one of these courts has an even number of judges, the provision specifies that the judges on that court shall be equally divided, Republican and Democrat.)
The same section also specifies that the Family Court and the Court of Common Pleas shall include no more than a single-judge majority of the same political party. (If one of these courts has an even number of judges, the provision specifies that no more than one-half of the judges shall be of the same political party.) But in contrast to the provision for the business courts, the provision for these two courts does not include a major-party requirement. As a result, members of non-major political parties, including independents, may serve on these two courts, so long as these courts satisfy their bare-majority requirement.
Delaware’s Judicial Nominations
Since 1978, Delaware governors have relied on recommendations from a judicial nominating commission to identify candidates to appoint to judicial vacancies. Under this practice, the commission, which is politically balanced and comprised of both lawyers and non-lawyers, recommends three candidates for each judicial vacancy. The governor then selects one of the three nominees for appointment. If the governor is not satisfied with the commission’s recommendations, the commission may generate another list of recommendations.
When a judicial position becomes available, the commission provides public notice of the position, the salary, and the job requirements, including the party membership, in order to comply with the bare-majority and major-party requirements, discussed above.
James Adams’s Non-Application for a Judicial Position
In December 2015, Delaware attorney James Adams retired and went on “emeritus” status with the Delaware state bar. Sometime in late 2016 or early 2017, Adams decided to explore judicial vacancies. He reactivated his full state bar membership and changed his party affiliation from Democrat to Independent. Adams said that he would have considered and applied for any available positions on any of the state’s courts. (Adams said he changed his party affiliation because he grew disenchanted with the Delaware Democratic Party and considered himself “more of a Bernie [Sanders] independent.” The state, in contrast, suggests that he changed his party only to bring this suit. Adams also claims that he declined to apply for judicial vacancies in the past, because he would not have qualified as a Democrat. The state disputes this and says that he would have qualified for at least ten judgeships.)
Rather than applying for any vacancies, however, Adams brought this suit. He claimed that the political balancing requirements rendered him ineligible for available vacancies based on his Independent political status, and argued that the requirements violated the First Amendment. The district court agreed and struck both the bare-majority requirement and the major-party requirement as they applied to all five courts.
The Third Circuit affirmed in part and reversed in part. The court ruled that Adams lacked standing to challenge the bare-majority requirements for the Family Court and the Court of Common Pleas, because the bare-majority requirements did not bar his appointment as an Independent to those courts. The court also accepted that Adams lacked standing to challenge the bare-majority requirement for the business courts for the same reason. On the merits, the court held that the major-party requirement for the business courts violated the First Amendment. It ruled that the bare-majority requirement failed, too, because (notwithstanding Adams’s lack of standing to challenge it) the bare-majority requirement was not severable from the major-party requirement. This appeal followed.
There are three issues in this case. Let’s take them one at a time.
In order to sue in federal court, plaintiffs must establish that they have suffered, or imminently will suffer, a concrete and particularized injury that was caused by the challenged law. Here, the state argues that Adams failed to establish a sufficient injury to challenge the political balancing requirements. The state says that the bare-majority requirement could not possibly injure Adams, because he does not belong to either political party. Moreover, the state contends that Adams failed to establish that he suffered past injuries based on the bare-majority requirement, because he would have qualified “for at least ten judgeships.” The state asserts that Adams failed to establish that he will suffer future harms based on the major-party requirement, because he cannot say with certainty that the major-party requirement will disqualify him from future consideration. Finally, the state notes that Adam declined to apply for any positions as an Independent, and that any harm he suffered is therefore “self-inflicted” and non-cognizable.
Adams counters that he only has to allege that the political balancing requirements chilled his exercise of his First Amendment right to affiliate (or not) with a political party (and not that the state actually denied his application). He says he easily meets this standard, because he alleged that he would have applied for judicial vacancies but for the balancing requirements’ political discrimination. He claims that the requirements force him “to choose between the right to seek a judgeship and violating his political conscience by re-registering as a Democrat or a Republican in order to be considered.” And he contends that a decision striking the political balancing requirements would allow him to submit an application as an Independent and have it “accepted and considered on its own merit.”
The Political Balancing Requirements
The state argues that it may consider party affiliation of state judges consistent with the First Amendment. It contends that under Supreme Court precedent, the First Amendment only limits a state from considering political affiliation for “low-level public employees,” not for “policymaking” jobs. The state asserts that the “ultimate inquiry” is “whether the hiring authority can demonstrate that party affiliation is an appropriate requirement for the effective performance of the public office involved.” Branti v. Finkel, 445 U.S. 508 (1980).
The state says that its use of party affiliation for judges easily meets these tests. It contends that judges occupy “policymaking” positions, because, among other things, they “develop the common law.” And it claims that party affiliation is “an appropriate requirement” for the job, “[b]ecause party affiliation is a proxy for how would-be judges might understand their role,” and because it helps to ensure bipartisan decisionmaking on the bench. The state asserts that the Third Circuit adopted an unduly narrow definition of “policymaking”—one that does not square with Supreme Court precedent.
Finally, the state argues that even if its political balancing requirements are subject to heightened First Amendment scrutiny (because judgeships are not “policymaking” positions), they pass muster. The state says that they are narrowly tailored to ensure a politically balanced judiciary, and that this, in turn, serves its compelling interest of preserving “public confidence in judicial integrity.”
Adams counters that the balancing requirements violate the First Amendment, because “[p]olitical affiliation is not only not necessary for the work of a judge, it also is inconsistent with the role of a judge.” Adams claims that judges only make “policy” insofar as they rule on the immediate cases before them, and so are not policymakers under Supreme Court precedent. Moreover, he says that judges are supposed to render their decisions without consideration of politics, and so their political affiliation is not “an appropriate requirement” for their office. In short, he contends that the state’s balancing requirements run exactly against the state’s own interests in a politically neutral judiciary.
The state argues that the bare-majority requirement is severable from the major-party requirement, and that the Court can therefore strike the major-party requirement (if it must) without also striking the bare-majority requirement. As an initial matter, the state asserts again that Adams lacks standing to challenge the bare-majority provision, and argues that he cannot use its non-severability from the major-party requirement to create standing to challenge it. Such a rule, the state contends, “would allow parties to obtain sweeping relief against whole statutory schemes even if injured by only part of them.” Moreover, the state claims that the bare-majority requirement can stand alone, independent of the major-party requirement, as it stood for 54 years before the state adopted the major-party requirement, and as it currently stands for the state’s Family Court and Court of Common Pleas. According to the state, “[t]here is simply no evidence that the Delaware Constitution’s framers would have preferred no political balance provisions at all to a system with just the bare majority provision.”
Adams counters that the state failed to raise the severability argument before the lower courts, and so waived it. But if the Court rules on severability, Adams argues that the major-party requirement is not severable from the bare-majority requirement, because the two provisions “are textually intertwined” and necessarily work together. He says that the history of the bare-majority requirement reveals that “the Legislature had only Democrats and Republicans in mind.” Moreover, he claims that the major-party requirement is necessary for the bare-majority requirement to achieve its goals. He contends that the major-party requirement “has no independent justification for its existence,” and so the two are not severable. According to Adams, this means that when the Court strikes the major-party requirement, it must also strike the bare-majority requirement.
First and foremost, there is a circuit split on an issue central to the merits question in this case, whether judges are “policymakers.” The Third Circuit said no, but the Second, Sixth, and Seventh Circuits (and, according to the state, “every other court to address the issue”) has said yes. Under Court precedent, if judges are “policymakers,” then the state can use their political affiliation as a qualification without violating the First Amendment. If they are not, then the state must show that its use of political affiliation is necessary to achieve a compelling government interest. This is a high standard, but one that the state argues, in the alternative, that it can satisfy. If the Court reaches the central merits question in this case, it may resolve the circuit split and determine whether judges are “policymakers” that fall under this exception to the First Amendment.
I say “may,” because it’s not entirely obvious that the Court’s precedents establishing the “policymakers” standard apply here. Those precedents deal more directly with the problem of political patronage, that is, when the government doles out jobs to politically friendly allies. But Delaware’s stated interest is very different here, to reduce the influence of politics in the judiciary by mandating a non-partisan, or, in this case, a bi-partisan, process. According to the State and Local Government Associations, as amicus in support of the state, merely applying the Court’s patronage precedents could threaten similar state and local government balancing requirements far beyond the judiciary. According to amicus, this could affect state and local governments’ efforts to reduce the influence of politics in a variety of policy areas.
But all that’s only if the Court reaches the central merits question, whether Delaware’s balancing provision violates the First Amendment. Before the Court can address this issue, it must determine that Adams has standing to sue. Given that Adams declined to apply for several positions for which he apparently qualified (either as a Democrat, in the past, or as an Independent, in the present and future), it seems likely that the Court may simply dismiss the case for lack of standing, vacate the Third Circuit’s ruling, and wait for a more appropriate case to address the hard question of whether Delaware’s political balancing provision violates the First Amendment.
Wednesday, September 30, 2020
Looking for a plain-English explainer on how a Justice Amy Coney Barrett could affect the Affordable Care Act, or Obamacare, in a case scheduled for oral argument on November 10? Here you go:
Saturday, September 26, 2020
Here's SCOTUSblog's resource page:
Here's the Seventh Circuit opinions website, which allows you to search opinions by author:
Friday, September 25, 2020
The D.C. Circuit ruled today that the House of Representatives has standing to challenge President Trump's reprogramming of federal funds to build a border wall.
The ruling is a setback for the Trump Administration and its efforts to build the wall (or at least more of it than Congress authorized through federal funding). But the ruling only says that the House has standing--not that it wins. The case now goes back to the district court for further proceedings, unless the administration seeks en banc or Supreme Court review.
The court said that the House has standing to challenge the reprogramming under the Appropriations Clause, but not under the Administrative Procedure Act. That shouldn't matter much to the future of the case, though: the lower court will still rule whether the Trump administration violated the law (the Constitution) in reprogramming funds.
Aside from allowing this case to move forward, the ruling is also significant because it says that a single house of Congress has standing to challenge executive action in violation of the Appropriations Clause. Appropriations, of course, require both houses of Congress. But the court said that a single house nevertheless suffered sufficient injury to satisfy Article III standing requirements when the executive branch reprograms federal funds in alleged violation of the Appropriations Clause. Here's what the court wrote on that point:
More specifically, by spending funds that the House refused to allow, the Executive Branch has defied an express constitutional prohibition that protects each congressional chamber's unilateral authority to prevent expenditures. It is therefore "an institutional plaintiff asserting an institutional injury" that is both concrete and particularized, belonging to the House and the House alone.
To put it simply, the Appropriations Clause requires two keys to unlock the Treasury, and the House holds one of those keys. The Executive Branch has, in a word, snatched the House's key out of its hands. That is the injury over which the House is suing.
. . .
[U]nder the defendants' standing paradigm [requiring Congress to sue, not just a single house], the Executive Branch can freely spend Treasury funds as it wishes unless and until a veto-proof majority of both houses of Congress forbids it. Even that might not be enough: Under defendants' standing theory, if the Executive Branch ignored that congressional override, the House would remain just as disabled to sue to protect its own institutional interests. That turns the constitutional order upside down.
Friday, July 24, 2020
Federal Judge Enjoins Federal Agents Acting Against Journalists and Legal Observers in Portland, Oregon
In a Temporary Restraining Order and Opinion in Index Newspapers v. City of Portland, Judge Michael Simon enjoined the U.S. Department of Homeland Security ("DHS"); and the U.S. Marshals Service ("USMS") — the "Federal Defendants" — from arresting and otherwise interfering with journalists and legal observers who are documenting the troublesome and now widely reported events in Portland, Oregon, which have attracted Congressional attention.
Judge Simon's relatively brief TRO opinion, first finds that the plaintiffs have standing, and then applying the TRO criteria importantly finds that there is a likelihood the plaintiffs would prevail on the First Amendment claim. Judge Simon found both that there was sufficient circumstantial evidence of retaliatory intent against First Amendment rights and that plaintiffs had a right of access under Press-Enterprise Co. v. Superior Court (1986). Judge Simon found fault with many of the specific arguments of the federal defendants, including the unworkability of the remedy:
The Federal Defendants also argue that closure is essential because allowing some people to remain after a dispersal order is not practicable and is unworkable. This argument is belied by the fact that this precise remedy has been working for 21 days with the Portland Police Bureau. Indeed, after issuing the first TRO directed against the City, the Court specifically invited the City to move for amendment or modification if the original TRO was not working, or address any problems at the preliminary injunction phase. Instead, the City stipulated to a preliminary injunction that was nearly identical to the original TRO, with the addition of a clause relating to seized property. The fact that the City never asked for any modification and then stipulated to a preliminary injunction is compelling evidence that exempting journalists and legal observers is workable. When asked at oral argument why it could be workable for City police but not federal officers, counsel for the Federal Defendants responded that the current protests are chaotic. But as the Federal Defendants have emphatically argued, Portland has been subject to the protests nonstop for every night for more than 50 nights, and purportedly that is why the federal officers were sent to Portland. There is no evidence that the previous 21 nights were any less chaotic. Indeed, the Federal Defendants' describe chaotic events over the Fourth of July weekend through July 7th, including involving Portland police, and the previous TRO was issued on July 2nd and was in effect at that time. The workability of the previous TRO also shows that there is a less restrictive means than exclusion or force that is available.
The TRO is quite specific as to journalists as well as to legal observers, providing in paragraph 5, to "facilitate the Federal Defendants' identification of Legal Observers protected under this Order, the following shall be considered indicia of being a Legal Observer: wearing a green National Lawyers' Guild-issued or authorized Legal Observer hat (typically a green NLG hat) or wearing a blue ACLU-issued or authorized Legal Observer vest."
The TRO lasts for 14 days; the litigation will undoubtedly last much longer.
Monday, July 6, 2020
In its opinion in Barr v. American Association of Political Consultants the United States Supreme Court held a provision of the Telephone Consumer Protection Act of 1991 (the “TCPA”), 47 U.S.C. § 227(b)(1)(A), exempting certain calls from the prohibition of robocalls violated the First Amendment.
Recall from our discussion when certiorari was granted that the federal law prohibits calls to cell phones by use of an automated dialing system or an artificial or prerecorded voice ("robocalls") subject to three statutory exemptions including one added in 2015 for automated calls that relate to the collection of debts owed to or guaranteed by the federal government including mortgages and student loans. Recall also from our oral argument preview that the case involves the tension between marketplace of ideas and privacy.
The challengers, political consultants and similar entities, argued that this exemption violated the First Amendment as a content regulation that could not survive strict scrutiny and further that the exemption could not be severed from the TCPA. To win, the challengers had to prevail on both arguments. However, a majority of the Justices found that while the exemption violated the First Amendment, it could be severed and so the prohibition in the TCPA applicable to the challengers remained valid.
As the plurality opinion expresses it:
Six Members of the Court today conclude that Congress has impermissibly favored debt-collection speech over political and other speech, in violation of the First Amendment. Applying traditional severability principles, seven Members of the Court conclude that the entire 1991 robocall restriction should not be invalidated, but rather that the 2015 government-debt exception must be invalidated and severed from the remainder of the statute. As a result, plaintiffs still may not make political robocalls to cell phones, but their speech is now treated equally with debt-collection speech. The judgment of the U. S. Court of Appeals for the Fourth Circuit is affirmed.
Despite this seeming overwhelming agreement, there is no majority opinion and the opinions demonstrate a perhaps needless fragmentation of the Justices and complication of precedent.
- Kavanaugh's plurality opinion garnered support from Chief Justice Roberts and Justice Alito, with Thomas joining on the First Amendment issue applying strict scrutiny to a content-based regulation, but not on the severability issue (Part III).
- Sotomayor wrote a brief solo concurring opinion, concluding that although the First Amendment standard should be the more relaxed intermediate scrutiny, the standard was not satisfied. She agreed that severability of the exemption was proper.
- Breyer, joined by Ginsburg and Kagan, agreed that the provision was severable, but dissented on the First Amendment issue, finding that strict scrutiny should not apply and that the robocall exemption survived intermediate-type scrutiny ("The speech-related harm at issue here — and any related effect of the marketplace of ideas — is modest").
- Gorsuch, joined in part by Thomas, agreed that the exemption violated the First Amendment, but argued that it was no severable, or more accurately that severability should not be the issue. He argued that severing and voiding the government-debt exemption does nothing to address the injury the challengers claimed and it harms strangers to this lawsuit. The opinion calls for a reconsideration of "severability doctrine" as a whole, citing in a footnote Thomas's partial dissent in Selia Law just last week.
Thus while the outcome is clear, its ultimate basis is muddied.
Tuesday, June 30, 2020
SCOTUS Holds Free Exercise Clause Bars Application of State's No-Aid to Religious Institutions Clause in State Constitution
In its opinion in Espinoza v. Montana Department of Revenue regarding a state tax credit scheme for student scholarships, the majority held that the scheme must be afforded to religious schools so that the Free Exercise Clause was not violated.
Recall that the Montana Supreme Court held that the tax credit program's application to religious schools was unconstitutional under its state constitution, Art. X §6 , which prohibits aid to sectarian schools. This type of no-aid provision is often referred to as (or similar to) a Blaine Amendment and frequently appears in state constitutions.
In a closely-divided decision, the Court decided that the Montana Supreme Court's decision that the tax credit program could not be extended to religious schools should be subject to struct scrutiny under the First Amendment's Free Exercise Clause and did not survive. (The Court therefore stated it need not reach the equal protection clause claims). The Court essentially found that this case was more like Trinity Lutheran Church of Columbia v. Comer (2017) (involving playground resurfacing) and less like Locke v. Davey, 540 U.S. 712 (2004), in which the Court upheld State of Washington statutes and constitutional provisions that barred public scholarship aid to post-secondary students pursuing a degree in theology. The Court distinguishes Locke v. Davey as pertaining to what Davey proposed "to do" (become a minister) and invoking a "historic and substantial” state interest in not funding the training of clergy. Instead, the Court opined that like Trinity Lutheran, Esponiza "turns expressly on religious status and not religious use."
The Court's opinion, by Chief Justice Roberts and joined by Thomas, Alito, Gorsuch, and Kavanaugh, is relatively compact at 22 pages. In addition to taking time to distinguish Locke v. Davey, the opinion devotes some discussion to federalism, invoking the Supremacy Clause and Marbury v. Madison in its final section. But the opinion also engages with the dissenting Justices' positions in its text and its footnotes. Along with the concurring opinions, the overall impression of Espinoza is a fragmented Court, despite the carefully crafted majority opinion.
The concurring opinion of Thomas — joined by Gorsuch — reiterates Thomas's view that the Establishment Clause should not apply to the states; the original meaning of the clause was to prevent the federal establishment of religion while allowing states to establish their own religions. While this concurring opinion criticizes the Court's Establishment Clause opinions, it does not confront why a state constitution would not be free to take an anti-establishment position.
Gorsuch also wrote separately, seemingly to emphasize that the record contained references to religious use (exercise) and not simply religious status. Gorsuch did not discuss the federalism issues he stressed in his opinion released yesterday in June Medical Services.
Alito's thirteen page concurring opinion is an exegesis on the origins of the Montana constitutional provision as biased. Alito interestingly invokes his dissenting opinion in Ramos v. Louisiana decided earlier this Term in which he argued that the original motivation of a state law should have no bearing on its present constitutionality: "But I lost, and Ramos is now precedent. If the original motivation for the laws mattered there, it certainly matters here."
(Noteworthy perhaps is that Roberts joined Alito's dissenting opinion in Ramos and Roberts's opinion in Esponiza does spend about 3 pages discussing the Blaine amendments' problematical history, but apparently this was insufficient for Alito).
Ginsburg's dissenting opinion, joined by Kagan, pointed to an issue regarding the applicability of the Court's opinion:
By urging that it is impossible to apply the no-aid provision in harmony with the Free Exercise Clause, the Court seems to treat the no-aid provision itself as unconstitutional. Petitioners, however, disavowed a facial First Amendment challenge, and the state courts were never asked to address the constitutionality of the no- aid provision divorced from its application to a specific government benefit.
Breyer, joined in part by Kagan, essentially argued that the majority gave short-shrift to Locke v. Davey and its "play-in-the-joints" concept authored by Rehnquist as expressing the relationship between the Establishment and Free Exercise Clause of the First Amendment. Breyer's opinion is almost as long as the majority opinion, and the majority takes several opportunities to express its disagreement with Breyer, including in a two paragraph discussion, his implicit departure from precedent (e.g., "building on his solo opinion in Trinity Lutheran").
Sotomayor's dissent, also criticized by the majority in text, argues that the Court is "wrong to decide the case at all" and furthermore decides it wrongly. The Court's reframing incorrectly addressed (or seemingly addressed?) whether the longstanding state constitutional provision was constitutional. Thus, she argues, the Court has essentially issued an advisory opinion. On the merits, she contends, "the Court’s answer to its hypothetical question is incorrect." She concludes that the majority's ruling is "perverse" because while the Court once held that "the Free Exercise Clause clearly prohibits the use of state action to deny the rights of free exercise to anyone, it has never meant that a majority could use the machinery of the State to practice its beliefs,” it now departs from that balanced view.
The Court's opinion is much more divided than it seems at first blush. And the future of state constitutional provisions that prohibit taxpayer money from being used to support religious institutions remains in doubt.
June 30, 2020 in Courts and Judging, Equal Protection, Establishment Clause, Federalism, First Amendment, Fourteenth Amendment, Free Exercise Clause, Opinion Analysis, State Constitutional Law, Supreme Court (US), Theory | Permalink | Comments (0)
Monday, June 29, 2020
An article in the New York Times exploring the inner workings of the Washington Post has more than insider media news: it begins by divulging the role of the Washington Post editors in not publishing news about Supreme Court nominee Bret Kavanaugh during his contentious confirmation hearing.
Almost anyone who works in the Washington Post newsroom can look inside its publishing system, Methode, to see what stories are coming. And at the height of the furor over Brett Kavanaugh’s nomination to the Supreme Court in 2018, some who did saw a shocking article awaiting publication.
In the article, Bob Woodward, the Post legend who protected the identity of his Watergate source, Deep Throat, for 30 years, was going to unmask one of his own confidential sources. He was, in particular, going to disclose that Judge Kavanaugh had been an anonymous source in his 1999 book “Shadow: Five Presidents and the Legacy of Watergate.”
Mr. Woodward was planning to expose Mr. Kavanaugh because the judge had publicly denied — in a huffy letter in 1999 to The Post — an account about Kenneth Starr’s investigation of President Bill Clinton that he had himself, confidentially, provided to Mr. Woodward for his book. (Mr. Kavanaugh served as a lawyer on Mr. Starr’s team.)
The article, described by two Post journalists who read it, would have been explosive, arriving as the nominee battled a decades-old sexual assault allegation and was fighting to prove his integrity.
The article was nearly ready when the executive editor, Martin Baron, stepped in. Mr. Baron urged Mr. Woodward not to breach his arrangement with Mr. Kavanaugh and to protect his old source’s anonymity, three Post employees said. (The three, as well as other Post journalists who spoke to me, insisted on anonymity because The Post prefers that its employees not talk to the media.)
Mr. Baron and other editors persuaded Mr. Woodward that it would be bad for The Post and “bad for Bob” to disclose a source, one of the journalists told me. The piece never ran.
How this is coming to light now is left unexplained.
In its highly anticipated opinion in June Medical Services v. Russo (formerly Gee), the United States Supreme Court reversed the Fifth Circuit's controversial decision upholding Louisiana's abortion restrictions despite their similarity to the ones held unconstitutional in the Court's most recent abortion case, Whole Woman's Health v. Hellerstedt (2016).
Justice Breyer, who also wrote the Court's opinion in Whole Woman's Health, wrote the plurality opinion in June Medical, joined by Ginsburg, Sotomayor and Kagan (None of the women Justices wrote separately, meaning that the abortion opinions in today's case are all by men).
Breyer's plurality opinion concluded that there is standing; recall that the United States argued that the physicians should not have standing to raise the constitutional rights of their patients despite this long standing practice. Breyer's plurality opinion carefully rehearses the findings of fact by the district court (which applied Whole Women's Health) and ultimately concluded that the "evidence on which the District Court relied in this case is even stronger and more detailed" than in Whole Woman's Health. The Fifth Circuit, Breyer's plurality opinion concluded, misapplied the correct standard of review of these findings: the appellate court should have applied the deferential clear-error standard.
Chief Justice Roberts, who dissented in Whole Woman's Health, concurred in June Medical on the basis of stare decisis:
I joined the dissent in Whole Woman’s Health and continue to believe that the case was wrongly decided. The question today however is not whether Whole Woman’s Health was right or wrong, but whether to adhere to it in deciding the present case . . . .
The legal doctrine of stare decisis requires us, absent special circumstances, to treat like cases alike. The Louisiana law imposes a burden on access to abortion just as severe as that imposed by the Texas law, for the same reasons. Therefore Louisiana’s law cannot stand under our precedents.
The Chief Justice's sixteen page concurring opinion, necessary to constitute the majority reversing the Fifth Circuit and upholding Whole Woman's Health is bound to be highly analyzed.
The dissenting opinions are somewhat fragmented. Thomas's dissenting opinion and Alito's dissenting opinion, joined by Gorsuch, and in part by Thomas and Kavanaugh, tracks ground familiar from Whole Woman's Health, with additional discussions of stare decisis. Gorsuch, who was not on the Court when Whole Woman's Health was decided in 2016, penned an opinion accusing the Court of having "lost" its way in a "highly politicized and contentious arena" by not paying due deference to the state legislature. Kavanaugh, who replaced Kennedy who had joined the majority in Whole Woman's Health, not only joined portions of Alito's dissent but wrote separately to stress his agreement with the portions of Alito's opinion that the case should be remanded, and in a footnote also stated that "the District Court on remand should also address the State’s new argument (raised for the first time in this Court) that these doctors and clinics lack third-party standing."
Wednesday, June 24, 2020
A sharply divided three-judge panel of the D.C. Circuit today ordered Judge Emmet Sullivan to dismiss the criminal case against Michael Flynn for lying to the FBI. This is hardly the final word, though: the extraordinary ruling is sure to go to the full circuit, and perhaps even the Supreme Court.
Flynn was charged with lying to the FBI as part of the FBI's investigation into connections between the Trump campaign and Russia in the 2016 election. He pleaded guilty--twice, before two different federal judges--and agreed to cooperate with the government in its ongoing investigation. The court deferred sentencing to allow Flynn to continue to cooperate.
Flynn then moved to withdraw his plea, arguing that the government failed to produce exculpatory evidence. Most recently, DOJ came across material that, according to the government, means that the prosecution can no longer prove the charge. So the government moved to dismiss the case.
Judge Sullivan appointed an amicus to represent the no-dismissal side, invited other amici to weigh in, and set a hearing date on the motions--all to determine whether he should grant "leave of court" to dismiss. (That's the standard under a Rule 48(a) motion to dismiss a criminal charge.) (Judge Sullivan had serious concerns about the government's motion, given the many, many irregularities in the case.)
Then Flynn filed a writ of mandamus in the D.C. Circuit, and the government weighed in to support it. Note that Judge Sullivan had not yet even held the hearing on the motion to dismiss, much less denied it.
(Just gotta say it: Wow. Not your usual federal prosecution.)
Today the D.C. Circuit ruled for Flynn and ordered the prosecution dismissed. Judge Rao wrote the majority opinion, which concluded that Judge Sullivan committed clear legal error. Moreover, by ordering dismissal without a hearing or further consideration by the lower court, the court said that the district court had no role under the Rule 48(a) "with-leave-of-court" standard.
Judge Rao started by noting that a prosecution's motion to dismiss is entitled to a presumption of regularity. But the court wrote that Judge Sullivan raised nothing to challenge this presumption, or to show that this was the kind of case that warranted a hearing or further judicial inquiry into the motion. As such, the court concluded that Judge Sullivan went beyond his authority in appointing an amicus and scheduling a hearing. Again: All this before Judge Sullivan even held the hearing, much less ruled against dismissal.
Judge Rao explained in separation-of-powers terms:
In this case, the district court's actions will result in specific harms to the exercise of the Executive Branch's exclusive prosecutorial power. The contemplated proceedings would likely require the Executive to reveal the internal deliberative process behind its exercise of prosecutorial discretion, interfering with the Article II charging authority. Thus, the district court's appointment of the amicus and demonstrated intent to scrutinize the reasoning and motives of the Department of Justice constitute irreparable harms that cannot be remedied on appeal.
Judge Rao seemed to try to leave open some room for a district court to determine whether to grant "leave of court" on a Rule 48(a) motion to dismiss. But if this case doesn't fit the bill (again, with all its irregularities), it's not clear what would.
Judge Wilkins dissented. In short:
This appears to be the first time that we have issued a writ of mandamus to compel a district court to rule in a particular manner on a motion without first giving the lower court a reasonable opportunity to issue its own ruling; the first time any court has held that a district court must grant "leave of court" pursuant to Federal Rule of Criminal Procedure 48(a) without even holding a hearing on the merits of the motion; and the first time we have issued the writ even though the petitioner has an adequate alternative remedy [that is, appeal after a denial of the motion to dismiss], on the theory that another party [the government] would not have had an adequate alternative remedy if it had filed a petition as well. Any one of these is sufficient reason to exercise our discretion to deny the petition; together they compel its rejection.
Monday, June 15, 2020
In its opinion in the consolidated cases of Bostock v. Clayton County, the United States Supreme Court interpreted the prohibition of discrimination "because of sex" in Title VII of the 1964 Civil Rights Act, 42 U.S.C. §2000e et. seq. to include sexual and transgender identities. As we discussed in our preview, two of the consolidated cases involved sexual orientation discrimination - Altitude Express v. Zarda and Bostock v. Clayton County Board of Commissioners - while the third - R.G. & G.R. Harris Funeral Homes v. EEOC - involved gender identity.
The Court's opinion, authored by Justice Gorsuch and joined by Chief Justice Roberts, and Justices Ginsburg, Breyer, Sotomayor, and Kagan, states:
At bottom, these cases involve no more than the straightforward application of legal terms with plain and settled meanings. For an employer to discriminate against employees for being homosexual or transgender, the employer must intentionally discriminate against individual men and women in part because of sex. That has always been prohibited by Title VII’s plain terms—and that “should be the end of the analysis.”
After considering and rejecting the employers' arguments, the opinion concludes:
Some of those who supported adding language to Title VII to ban sex discrimination may have hoped it would derail the entire Civil Rights Act. Yet, contrary to those intentions, the bill became law. Since then, Title VII’s effects have unfolded with far-reaching consequences, some likely beyond what many in Congress or elsewhere expected.
But none of this helps decide today’s cases. Ours is a society of written laws. Judges are not free to overlook plain statutory commands on the strength of nothing more than suppositions about intentions or guesswork about expectations. In Title VII, Congress adopted broad language making it illegal for an employer to rely on an employee’s sex when deciding to fire that employee. We do not hesitate to recognize today a necessary consequence of that legislative choice: An employer who fires an individual merely for being gay or transgender defies the law.
The judgments of the Second and Sixth Circuits in Nos. 17–1623 and 18–107 are affirmed. The judgment of the Eleventh Circuit in No. 17–1618 is reversed, and the case is remanded for further proceedings consistent with this opinion.
The Court's opinion is 33 pages or so and there are no concurring opinions. Justice Alito's dissent, joined by Justice Thomas, weighs in at over 100 pages including its appendices. There is another dissenting opinion by Justice Kavanaugh, at a more modest 27 pages.
It is the dissenting opinions that provide the constitutional law perspective to the Court's statutory interpretation decision: both claim that the Court is violating separation of powers. Justice Alito begins his lengthy dissent by stating:
There is only one word for what the Court has done today: legislation. The document that the Court releases is in the form of a judicial opinion interpreting a statute, but that is deceptive.
And the Court's most recently appointed Justice, Kavanaugh, begins in a similar vein:
Like many cases in this Court, this case boils down to one fundamental question: Who decides?
Kavanaugh concludes that it should not be the Court's decision, but does expound on why the Court's interpretation regarding "sex" is incorrect.
Congress could, of course, amend Title VII to exclude LGBTQ identities. But the momentum in Congress has tilted in the direction of inclusion, a step which would now be redundant.
As for the connections between Title VII and the Equal Protection Clause and the definitions of "sex" and protection for LGBTQ individuals, these arise in the dissenting opinions. Alito's dissent worries that the Title VII interpretation will "exert a gravitational pull in constitutional cases," so that LGBTQ identities will be afforded the heightened scrutiny standard applicable to sex/gender. For his part, Kavanaugh's dissent stresses that in the Court's discussions of sexual orientation in equal protection doctrine, the Court did not consider sexual orientation part of sex discrimination.
Additionally, all of the opinions raise the First Amendment free exercise of religion specter. The Court's majority states that "worries about how Title VII may intersect with religious liberties are nothing new; they even predate the statute’s passage," but that issue is for another day:
So while other employers in other cases may raise free exercise arguments that merit careful consideration, none of the employers before us today represent in this Court that compliance with Title VII will infringe their own religious liberties in any way.
For Alito dissenting, his views are similar to his views in the same-sex marriage cases. He states here that the " position that the Court now adopts will threaten freedom of religion, freedom of speech, and personal privacy and safety. No one should think that the Court’s decision represents an unalloyed victory for individual liberty."
Monday, June 1, 2020
A sharply divided Supreme Court ruled today in Thole v. U.S. Bank that retirement-plan participants can't sue their former employer for mismanagement of the plan, because they hadn't demonstrated sufficient direct and concrete harm.
The ruling deals a sharp blow to defined-benefit plan participants who seek to sue for plan mismanagement. Under the ruling, those participants have to wait until their actual benefits drop, or close to it. And even so, the Court's ruling may give employers an out. At the same time, the ruling shields employers from liability unless and until their mismanagement is so bad that it actually or imminently results in lowered benefits.
While the plaintiffs sued under the individual cause of action in ERISA, the Court's ruling is based on Article III standing. This means that Congress can't change the law to create more permissive standing.
The case arose when two retirees of U.S. Bank sued that Bank and others for mismanaging their retirement-plan assets. The plaintiffs sued under ERISA's individual cause of action.
The Court ruled that the plaintiffs lacked Article III standing because, in short, they didn't suffer a harm. Justice Kavanaugh wrote for the five conservatives that the plaintiffs' monthly defined benefits didn't drop, or wouldn't imminently drop, based on the mismanagement, and any court ruling wouldn't affect their monthly benefits under the plan.
The Court also noted that the plaintiffs' benefits wouldn't drop even if the retirement plan failed, because the Pension Benefit Guarantee Corporation backstops failed retirement plans. This raises the question whether the plaintiffs would have standing even if the plan's failing led to a reduction in the benefits that the plan pays out (because the plaintiffs, after all, would theoretically continue to receive the full measure of their defined-benefit plan, even if from the PBGC, and not the plan).
The ruling means that the plaintiffs have to wait to sue until the plan's failure actually or imminently results in a reduction in their own benefits. And even then, the Court might've written in an out for the employer by noting that the PBGC backstops failing plans.
Justice Sotomayor, joined by the three other progressives, dissented. She argued that the plaintiffs have an interest in their plan's integrity, just as private trust beneficiaries have an interest in protecting their trust; that breach of a fiduciary duty is a cognizable injury, even if it doesn't result in financial harm or increased risk of nonpayment; and that the plaintiffs have associational standing to sue on behalf of the plan.
It is hard to overstate the harmful consequences of the Court's conclusion. . . . After today's decision, about 35 million people with defined-benefits plans will be vulnerable to fiduciary misconduct. The Court's reasoning allows fiduciaries to misuse pension funds so long as the employer has a strong enough balance sheet during (or, as alleged here, because of) the misbehavior. Indeed, the Court holds that the Constitution forbids retirees to remedy or prevent fiduciary breaches in federal court until their retirement plan or employer is on the brink of financial ruin. This is a remarkable result, and not only because this case is bookended by two financial crises.
Saturday, May 30, 2020
A closely divided Court in South Bay United Pentacostal Church v. Newsom denied the application for emergency injunction relief sought by the church from California Governor Newsom's Executive Order placing numerical restrictions on all gatherings to combat the spread of the highly infectious corona virus causing COVID-19. The Ninth Circuit panel and the district judge had similarly denied the church's motion for a preliminary injunction.
There is no opinion from the Court. Chief Justice Roberts, who joined the majority in rejecting the emergency application, filed a brief concurring opinion. On the merits, Chief Justice Roberts wrote:
Although California’s guidelines place restrictions on places of worship, those restrictions appear consistent with the Free Exercise Clause of the First Amendment. Similar or more severe restrictions apply to comparable secular gatherings, including lectures, concerts, movie showings, spectator sports, and theatrical performances, where large groups of people gather in close proximity for extended periods of time. And the Order exempts or treats more leniently only dissimilar activities, such as operating grocery stores, banks, and laundromats, in which people neither congregate in large groups nor remain in close proximity for extended periods.
The precise question of when restrictions on particular social activities should be lifted during the pandemic is a dynamic and fact-intensive matter subject to reasonable disagreement. Our Constitution principally entrusts “[t]he safety and the health of the people” to the politically accountable officials of the States “to guard and protect.” Jacobson v. Massachusetts, 197 U. S. 11, 38 (1905). When those officials “undertake[ ] to act in areas fraught with medical and scientific uncertainties,” their latitude “must be especially broad.” Marshall v. United States, 414 U. S. 417, 427 (1974). Where those broad limits are not exceeded, they should not be subject to second-guessing by an “unelected federal judiciary,” which lacks the background, competence, and expertise to assess public health and is not accountable to the people. See Garcia v. San Antonio Metropolitan Transit Authority, 469 U. S. 528, 545 (1985).
That is especially true where, as here, a party seeks emergency relief in an interlocutory posture, while local officials are actively shaping their response to changing facts on the ground. The notion that it is “indisputably clear” that the Government’s limitations are unconstitutional seems quite improbable.
In short, religious gatherings were not being treated any differently under the California Order and the judiciary should defer to the politically accountable entities in health situations, especially when these are uncertain and changing.
Justice Bret Kavanaugh wrote a dissenting opinion, joined by Justices Thomas and Gorsuch — but interestingly not Justice Alito — concluding that the California Order did not treat the religious institutions the same as "comparable secular businesses" such as grocery stores. Kavanaugh argues that given this differential treatment, struct scrutiny should apply, and California has not advanced a sufficiently compelling reason to treat religious gatherings differently.
As the pandemic continues, there is certainly sure to be more litigation, but for a majority of the Court, gatherings including those that are religious can be limited in service to public health.
May 30, 2020 in Cases and Case Materials, Courts and Judging, First Amendment, Free Exercise Clause, Medical Decisions, Opinion Analysis, Religion, Science, Supreme Court (US) | Permalink | Comments (0)
Tuesday, May 19, 2020
The Sixth Circuit has granted en banc review requested by a member of the court (rather than the parties) in Gary B. v. Whitmer. The panel's "previous decision and judgment of this court are vacated, the mandates are stayed, and these cases are restored to the docket as pending appeals."
This is not unanticipated. Recall that a divided panel held that there is a fundamental right to a "basic minimum education" providing "access to literacy" as a substantive due process right under the Fourteenth Amendment. Our extensive analysis of the panel opinion is here.
Thursday, May 14, 2020
The Fourth Circuit, sitting en banc, denied President Trump's interlocutory appeal of the district court's failure to rule on his motion to dismiss in the Emoluments Clause case brought by Maryland and D.C.
The ruling is a victory for Maryland and D.C., in that it keeps the case going. But it says nothing on the merits, or on the several other barriers that the plaintiffs may face in bringing this suit. It merely sends the case back to the district court for a ruling on President Trump's motion and other proceedings.
After Maryland and D.C. sued President Trump for Emoluments Clause violations, the President moved to dismiss, arguing that he enjoyed absolute immunity. The district court didn't rule on the motion for seven months, so President Trump filed an interlocutory appeal with the Fourth Circuit, arguing that the district court effectively denied his motion.
A three-judge panel agreed and held that Maryland and D.C. lacked standing. (We posted on the Fourth Circuit's standing ruling here.) The court vacated that ruling and granted en banc review.
Today's ruling says that the Fourth Circuit didn't have jurisdiction to hear the case.
The court said that
the district court neither expressly nor implicitly refused to rule on immunity. It did not make any rulings with respect to the President in his individual capacity. To the contrary, the district court stated in writing that it intended to rule on the President's individual capacity motion. Despite the President's suggestion, the district court's deferral did not result in a delay 'beyond all reasonable limits.'
The dissent disagreed, and wrote that "[t]he district court's treatment of the President's invocation of absolute immunity is best characterized as deliberately dilatory and, more probably, manipulative."
Monday, May 11, 2020
The United States Supreme Court heard oral arguments (telephonically) in the consolidated cases of Our Lady of Guadalupe School v. Morrisey-Berru and St. James School v. Biel.
Recall that these 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 how far such this extend and who should qualify as a "ministerial" employee subject to the exemption from employment laws? The factors that courts have derived from Hosana-Tabor include:
- (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.”
Throughout the oral argument, the question was which of these factors should be the test. Morgan Ratner, on behalf of the United States as amicus curiae argued that the sole factor of the employee performing an "important religious function" should be the test. And yet, the very determination of whether an employee was performing "important religious functions" implicates an Establishment Clause issue should the court make such determinations. Indeed, Justice Gorsuch pressed on whether the court should simply accept the religious organization's statement that it had a sincere religious belief.
Nevertheless, the United States argued that this "important religious functions" factor should govern, even if the employee was not terminated for a religious reason, but — as is the allegation in these cases — for a health issue or for age discrimination. Both Justices Ginsburg and Sotomayor repeated the broadness of the exemption sought. And further, the fact that the teacher need not share religious identity with the organization should not be relevant to a determination of "important religious functions":
KAGAN: [A]nd if a position can be filled by any old person, not by a member of a faith, isn't that a pretty good sign that the employee doesn't have that special role within the religious community?
MS. RATNER: No, Justice Kagan, I don't think so. And -- and there are really several reasons. The -- the most important one is that's essentially a religious judgment about who is qualified to perform certain important religious functions and how much of the creed of that religion you need to share to perform that function.
Arguing for the teachers who had been terminated, Jeffrey Fisher pointed out the number of teachers employed in religious schools, and the number of other employees in religious hospitals. Fisher argued the expansiveness of the religious organization's argument:
So it really is a sea change – even as to teachers, leaving everything else aside, it is truly a sea change that is being requested by the other side here today in terms of how teachers and schools are classified and whether they have any employment rights at all or -- or, in fact, whether at least if you follow the way the lower courts have -- have implemented the ministerial exception, you basically have employment law-free zones in all religious schools.
Fisher also contended that many other laws were at stake, not only discrimination laws, but wage and hour and equal pay acts, as well as teacher credentialing laws including specific provisions such as criminal background checks.
Thus, while the ministerial exemption as rooted in the free exercise and establishment clauses of the First Amendment originally excepted only "ministers," there is a chance that it will be broadened to include all - - - or almost all - - - employees at religious organizations.
The Supreme Court will hear oral arguments tomorrow in Trump v. Mazars and Trump v. Deutsche Bank, testing whether Congress has authority to subpoena the President's financial records from third-party custodians of those records. Here's my Preview, from the ABA Preview of United States Supreme Court Cases, with permission. (This doesn't address the political question issue, which the Court asked the parties to brief after this came out).
These cases test the authority of three different Committees of the U.S. House of Representatives to issue third-party subpoenas in support of their oversight and investigations into different aspects of President Trump’s private financial dealings. Let’s look at the Committees’ investigations one at a time.
The Oversight Committee Investigation
The House Committee on Oversight and Reform is engaged in an ongoing investigation into Executive Branch ethics and conflicts of interest, presidential financial disclosures, federal lease management, and possible violations of the Constitution’s Emoluments Clauses. As relevant here, the Committee is examining President Trump’s personal business interests and his decision to maintain ties to these interests (and not fully divest from them, consistent with prior presidential practice). In particular, the Committee has identified concerns with the Government Services Administration’s (GSA) ongoing management of the lease of the federal Old Post Office Building for the Trump International Hotel in Washington, D.C.; the adequacy and accuracy of President Trump’s financial disclosures and the adequacy of federal ethics laws; and allegations by Michael Cohen that President Trump falsely reported his assets. According to the Committee, the investigation is designed “to determine the adequacy of existing laws and perform related agency oversight.”
After the Committee heard testimony from Cohen that included allegations that President Trump falsely reported his assets, the chair wrote to Mazars and requested accounting documents related to President Trump and certain of his businesses from January 1, 2009, to the present. Mazars declined to produce this material.
On April 12, 2019, the chair then sent a memorandum to Committee members explaining the need for a subpoena to Mazars. The memo identified four subjects that the Committee had “full authority to investigate”: (1) “whether the President may have engaged in illegal conduct before and during his tenure in office,” (2) “whether [the President] has undisclosed conflicts of interest that may impair his ability to make impartial policy decisions,” (3) “whether [the President] is complying with the Emoluments Clauses of the Constitution,” and (4) “whether [the President] has accurately reported his finances to the Office of Government Ethics and other federal entities.” The chair also wrote that the Committee’s “interest in these matters informs its review of multiple laws and legislative proposals under our jurisdiction.”
The Committee then issued a subpoena to Mazars seeking documents related to financial statements, engagement letters, supporting documents, and related communications for President Trump and certain of his businesses, from 2011 through 2018.
The Financial Services Committee Investigation
The Financial Services Committee is engaged in an ongoing, broad investigation into financial institutions’ compliance with banking laws and whether those laws adequately protect against foreign money laundering, other financial crimes, and high-risk loans. As part of this investigation, the Committee is looking into practices at Deutsche Bank and Capital One.
These banks “have long provided business and personal banking services” to President Trump and his family. According to a series of media reports over the last few years, these banks made questionable loans to President Trump. Most recently, a New York Times Magazine article reported that Deutsche Bank had concerns that President Trump’s “real estate projects were laundromats for illicit funds from countries like Russia, where oligarchs were trying to get money out of the country.”
In order to further its investigation, the Committee issued two subpoenas. The first was directed at Deutsche Bank; it sought documents and records that included detailed financial information “belonging to, or likely to reveal information, concerning” President Trump and his family. The Deutsche Bank subpoena covered material from January 1, 2010, to the present (with no closing date). The second subpoena was directed at Capital One; it sought information about various Trump businesses and their principals and “other representatives,” including businesses affiliated with the Trump International Hotel in Washington, D.C. The Capital One subpoena covered material from July 19, 2016, to the present (again with no closing date). Deutsche Bank and Capital One declined to comply.
The Intelligence Committee Investigation
The House Intelligence Committee is engaged in an ongoing investigation into “efforts by Russia and other foreign actors to influence our political process before, during, and since the 2016 election.” The investigation includes assessing “whether foreign actors have financial leverage over President Trump, whether legislative reforms are necessary to address these risks, and whether our Nation’s intelligence agencies have the resources and authorities needed to combat these threats.”
In order to further its investigation, the Committee issued a subpoena to Deutsche Bank, covering the exact same material and time frames as the Financial Services Committee’s subpoena. Deutsche Bank declined to comply.
In all, the three House committees issue four third-party subpoenas for financial information about President Trump.
Before the response date for any of the subpoenas, President Trump brought two separate lawsuits—one in Washington, D.C., and the other in New York City—to stop Mazars and the banks from complying. President Trump sued “solely in his capacity as a private citizen.” Mazars and the banks took no position on the underlying issue—the Committees’ authority to issue the subpoenas—and so the Committees intervened as defendants.
After the President filed suit, the House passed Resolution 507, purporting to ratify the Committees’ subpoenas. The Resolution stated that the House “ratifies and affirms all current and future investigations” and “subpoenas previously issued or to be issued in the future, by any standing or permanent select committee of the House,” related to the President, his immediate family, his businesses and organizations, and others with ties to the President, including any “current or former” government employees.
Both district courts ruled against President Trump, and the D.C. and Second Circuits affirmed. This appeal followed.
Congress has implied authority under the Constitution to engage in investigations and oversight of issues and areas that fall within its legitimate lawmaking power. As part of this implied authority, Congress can issue subpoenas to collect information to advance its investigations and oversight. Either house of Congress can delegate these authorities to its committees.
But a committee’s investigative and oversight authorities are not unbounded. Congressional investigations or oversight must serve a “legitimate legislative purpose,” they must be authorized by their full house, and they may not impermissibly encroach on another branch’s authority.
The parties frame their arguments around these baseline principles.
President Trump argues first that the committees did not have a legitimate legislative purpose in issuing the subpoenas. For one, he says that the subpoenas at best seek information that might lead to legislation. But he claims that this is not enough to bring the subpoenas within Congress’s legitimate lawmaking authority. For another, he asserts that the subpoenas probe into areas where Congress simply cannot legislate, for example, extending conflict-of-interest restrictions to, and imposing disclosure requirements upon, the President, and that they therefore lack a legitimate legislative purpose. For a third, he contends that the bank subpoenas impermissibly seek his personal financial information only as a “case study” for financial sector reform, and that simply does not fit within Congress’s legitimate lawmaking power. For a fourth, he contends that the subpoenas are part of the Committees’ exercise of law enforcement power, not law-making power, and that they impermissibly encroach on executive authority in violation of the separation of powers. And for a fifth, he asserts that the subpoenas are based on the Committees’ pure political interests, not legitimate lawmaking interests.
President Trump argues that for all these reasons even an ordinary congressional subpoena would fail. But he claims that the “unprecedented” congressional subpoenas seeking private information of the President should be subject to an even higher standard, and that under a higher standard these subpoenas would fail all the more.
President Trump argues next that the Committees lack express authority under House rules to issue the subpoenas. He claims that express delegation to the Committees to issue subpoenas is necessary in investigations, like these, that raise serious separation-of-powers issues, because “Congress seeks to encumber the President” and because the Committees are pushing the outer boundaries of congressional authority. Moreover, he says that requiring an express delegation, and ruling against the Committees because they lacked it, would allow the Court to avoid ruling on the underlying constitutional issues. President Trump contends that Resolution 507 did not provide express delegation, because it did not purport to amend House rules, did not expand the Committees’ authority, and acted retroactively “in violation of controlling precedent.” Finally, President Trump argues that interpreting Resolution 507 to expressly delegate power to the Committee to issue these subpoenas would only clear the way for every House Committee to issue its own subpoenas. According to the President, this, in turn, would “keep the President from fulfilling the obligations of his office.”
The government weighs in as amicus to support President Trump. The government lodges arguments similar to President Trump’s, but puts a finer point on the “heightened requirements” that it says Congress must meet in order to subpoena the President’s records. In particular, the government proposes this:
At the threshold, the full [House] chamber should unequivocally authorize a subpoena against the President. Moreover, the legislative purpose should be set forth with specificity. Courts should not presume that the purpose is legitimate, but instead should scrutinize it with care. And as with information protected by executive privilege, information sought from the President should be demonstrably critical to the legitimate legislative purpose. A congressional committee cannot evade those heightened requirements merely by directing the subpoenas to third-party custodians, for such agents generally assume the rights and privileges of their principal . . . .
For many of the same reasons raised by President Trump, the government says that the Committees’ subpoenas do not meet this heightened test.
The Committees counter that legislative subpoena power is an essential and time-tested part of congressional authority. (They rehearse in their merits brief the many similar congressional investigations that illustrate why their own investigations are hardly “unprecedented,” as the President contends.) They say that congressional authority’s “historical pedigree is too strong for it to be narrowed by the arguments” of the President and the government. They contend that instead of applying “heightened requirements” for these subpoenas (as the President and the government argue), the Court should defer to the Committees, so long as the subpoenas are related to a valid legislative purpose—one that “will inform Congress on a subject on which legislation could be had.”
The Committees argue next that they had “multiple legislative purposes” in issuing the subpoenas, as the courts below found. To illustrate this, they point to several pending bills, which are constitutionally permissible, that will be informed by these investigations. Moreover, the Committees contend that it doesn’t matter that they are investigating wrongdoing, so long as the investigations are related to a legitimate legislative purpose (which they are). And they say, contrary to the President and the government, these subpoenas (directed, as they are, to third parties) do not impair the President’s ability to perform his constitutional duties.
The Committees argue that the government’s “heightened standard” for subpoenas for material related to the President’s purely personal behavior conflicts with the Constitution. They say that the government’s proposed requirement that the full House authorize subpoenas concerning the President disregards the House’s constitutional power to determine its own rules. They contend that the proposed requirement that courts more closely scrutinize Congress’s stated purposes “invites inappropriate judicial micromanagement of Congressional oversight.” And they assert that the proposed requirement that a subpoena is “demonstrably critical” to congressional purposes “brazenly stacks the deck in favor of one Branch over another.” But the Committees contend that even if the Court applied the government’s test, their subpoenas would satisfy it.
Finally, the Committees argue that the House properly authorized them to conduct their investigations and issue their subpoenas. They contend that they have explicit authority to issue any subpoenas that they “consider necessary” to carry out “any of [their] functions and duties” under House Rule XI.2(m)(1). And they say that House Resolution 507 ratified and affirmed the specific subpoenas here.
This case, just like the companion case Trump v. Vance, testing whether President Trump has to comply with a state grand jury subpoena for his tax records, has obvious and much-discussed political significance. But the subpoenas in this case sweep more broadly than the subpoena in Vance: these subpoenas seek a variety of material related to President Trump and his business organizations, while the subpoena in Vance now only seeks his tax records. As a result, this case has potentially higher stakes. In particular, a ruling against President Trump could allow the Committees to obtain a trove of material relating to President Trump’s financial dealings and their bearing, if any, on his public duties. On the other hand, a ruling for President Trump could hamstring the Committees’ investigations, or even halt them altogether, and close off this avenue to public disclosure of this material. While President Trump’s taxes may get more play in our popular political debates, his broader financial dealings are likely far more significant.
As with Vance, however, it’s not clear how much any of this will matter. Given President Trump’s remarkably stable and durable base, and given his similarly remarkably stable and durable opposition, the Court’s ruling, whatever it is, will likely be interpreted by the general public in pure political terms (pro-Trump, or anti-Trump). That’s especially true coming on the heels of the impeachment proceedings, when relations between President Trump and House Democrats are already at a new low. In this highly strained political environment, it’s easy to see how partisans will put a political cast on these rulings, and on the justices behind them. It’s equally easy to see how the inevitable reactions to these cases, therefore, threaten to do lasting harm to our collective faith in a politically independent judiciary.
This case also threatens to do lasting harm to Congress. If adopted by the Court, President Trump’s arguments, echoed by the government, could substantially rein in Congress’s investigation and oversight authorities. In particular, if the Court were to adopt the argument that Congress lacked a legitimate legislative purpose—an argument that this administration has pressed hard in other congressional investigations not directly involving the President—this could seriously constrain Congress’s power to check the Executive Branch. In its strongest form, sometimes adopted by this administration, this argument could allow the Executive Branch to wholly ignore congressional oversight and investigations, leaving Congress little practical authority to coax the administration to cooperate. But even at the very least, this argument, if adopted by the Court, could open the door to active judicial intervention in congressional oversight and investigations. In short, this argument, if adopted by the Court, would shift power away from Congress to the Executive Branch and the courts, and thus significantly alter our current separation of powers.
Thursday, May 7, 2020
The Supreme Court ruled today in United States v. Sineneng-Smith that the Ninth Circuit overstepped when it invited amici to brief, and then ultimately ruled upon, an issue not raised by the parties. Justice Ginsburg concluded for a unanimous court, "[A] court is not hidebound by the precise arguments of counsel, but the Ninth Circuit's radical transformation of this case goes well beyond the pale."
The case arose when Evenlyn Sineneng-Smith, an immigration consultant, charged multiple clients over $6,000 each for filing applications for a labor certification program. The problem: the applications missed the deadline, and Sineneng-Smith knew it.
She was indicted for violations of 8 U.S.C. Sec. 1324, which makes it a felony to "encourag[e] or induc[e] an alien to come to, enter, or reside in the United States, knowing or in reckless disregard of the fact that such coming to, entry, or residence is or will be in violation of law."
Sineneng-Smith argued that the provisions didn't cover her conduct and, if they did, that they violated the Petition and Free Speech Clauses of the First Amendment. The district court rejected those arguments and convicted her.
Sineneng-Smith appealed, raising the same claims. But the Ninth Circuit invited amici to brief and argue that Section 1324 was impermissibly overbroad (among other things), a claim that Sineneng-Smith hadn't yet raised. The Ninth Circuit ultimately ruled that Section 1324 was overbroad in violation of the First Amendment.
The Supreme Court reversed. The Court ruled that the Ninth Circuit reached out for this issue, in violation of the principle that courts rely on the parties to frame the issues. The Court vacated the judgment and remanded "for reconsideration shorn of the overbreadth inquiry interjected by the appellate panel and bearing a fair resemblance to the case shaped by the parties."
Justice Thomas concurred, but wrote that he would consider revisiting the overbreadth doctrine in an appropriate case.