Monday, June 17, 2019

SCOTUS Finds Virginia House Lacks Standing to Appeal Racial Gerrymandering

In its divided opinion in Virginia House of Delegates v. Bethune-Hill, the Court concluded that the Virginia House of Delegates, one of two chambers in the state legislature, did not have standing to appeal the judgment of the three judge district court that eleven districts in its 2011 redistricting plan were racially gerrymandered and violated the Equal Protection Clause.

Recall that in its previous appearance before the United States Supreme Court, Virginia's 2011 redistricting plan caused the Court to clarify the standard for deciding whether racial considerations in reapportionment violate the Equal Protection Clause. In Bethune-Hill v. Virginia State Board of Elections (2017), the Court affirmed the three-judge court's decision as to one of the districts as constitutionally considering race, but remanded the determination of the constitutional status of the other eleven districts.  It was on this remand that the three-judge court found that these other eleven districts also violated the Equal Protection Clause. 

Recall also that at oral argument, the questions of standing to appeal were intermixed with the factually-intense merits, so that details about the processes leading to the actual redistricting map and its impacts complexified the arguments.

The Court did not reach the merits, but decided the case on lack of standing to appeal. As Justice Ginsburg, writing for the majority, phrased it, after the 2018 three-judge court decision, Virginia decided it "would rather stop than fight on," and Virginia did not appeal. However, the Virginia House of Delegates did pursue an appeal.  Ginsburg — joined by Justices Thomas, Sotomayor, Kagan, and Gorsuch — held that the House of Delegates did not have standing to appeal.

The majority held that the House of Delegates had no standing to represent the interests of the State of Virginia. A State has the authority to designate the entities to represent it and in the case of Virginia it has given this authority exclusively to the state Attorney General.

Further, the majority held that the Virginia House of Delegates did not have standing in its own right, as it did not have a distinct injury. "Just as individual members of Congress do not have standing to assert the institutional interests of the legislature, "a single House of a bicameral legislature lacks capacity to assert interests belonging to the legislature as a whole." The Court also rejected specific injury to the House of Delegates because redrawing district lines would harm it.

Justice Alito, writing the dissenting opinion joined by Chief Justice Roberts, and Justices Breyer and Kavanaugh, argued that the House of delegates did experience specific injury in fact, given that a representative represents a specific set of constituents with specific interests and this would be changed by redistricting. 

The contentious redistricting in Virginia (as well as other states) is not brought any closer to resolution by the Court's decision, but it does mean that Virginia's choice to end this round of the litigation must be a unitary one. 

Virginia_1612_map

image: map of Virginia circa 1612 via

June 17, 2019 in Courts and Judging, Elections and Voting, Equal Protection, Fourteenth Amendment, Opinion Analysis, Standing, Supreme Court (US) | Permalink | Comments (0)

Friday, June 7, 2019

Washington Supreme Court on Remand in Arlene's Flowers: No First Amendment Violation

In its unanimous opinion in State of Washington v. Arlene's Flowers, the Washington Supreme Court concluded there was no First Amendment infringement when the state found Arlene's Flowers violated the Washington Law Against Discrimination (WLAD), by refusing to sell wedding flowers to a same-sex couple.

Recall that in June 2018, the United States Supreme Court without opinion, in Arlene's Flowers v. Washington, granted the petition for writ of certiorari, vacated the judgment of the Washington Supreme Court, and remanded the case for consideration in light of its decision earlier than month in Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Comm'n. Given the holding in Masterpiece Cakeshop that the Colorado Civil Rights Commission, or one specific commissioner, exhibited "hostility" to the cakemaker in that case, the Washington Supreme Court was now tasked with determining whether there was a similar hostility towards the religion of the florist in Arlene's Flowers, Baronnelle Stutzman, and if so, applying strict scrutiny.

Van_Gogh_-_Zwölf_Sonnenblumen_in_einer_Vase1The Washington Supreme Court, on page 2 of its 76 page opinion, proclaimed: "We now hold that the answer to the Supreme Court's question is no; the adjudicatory bodies that considered this case did not act with religious animus when they ruled that the florist and her corporation violated the Washington Law Against Discrimination . . . ." 

The Washington Supreme Court's lengthy opinion admittedly includes passages from its 2017 opinion which thoroughly discussed and applied the First Amendment standards, but it also carefully delves into the question of government hostility toward religion.  The court found irrelevant one contested incident involving the Attorney General of Washington which occurred after the Washington Supreme Court's 2017 opinion, noting that the issue was one of adjudicatory animus and not executive branch animus; any claim that there was selective prosecution lacked merit. The Washington Supreme Court also rejected Stutzman's claim that the scope of the injunction in the 2017 opinion mandated that Stutzman "personally attend and participate in same-sex weddings."

The Washington Supreme Court's opinion concludes that "After careful review on remand, we are confident that the courts resolved this dispute with tolerance, and we therefore find no reason to change our original judgment in light of Masterpiece Cakeshop. We again affirm the trial court's rulings."

It is a solid well-reasoned unanimous opinion, but given this hard-fought and well-financed litigation, it's likely that Arlene's Flowers will again petition the United States Supreme Court for certiorari.

image: Vincent Van Gogh, Twelve Sunflowers in a Vase, circa 1887, via.

June 7, 2019 in Courts and Judging, Family, Federalism, First Amendment, Fourteenth Amendment, Gender, Opinion Analysis, Recent Cases, Religion, Sexual Orientation, State Constitutional Law, Supreme Court (US) | Permalink | Comments (0)

Monday, June 3, 2019

Court Says House Lacks Standing to Challenge Trump's Border Wall Funding

Judge Trevor N. McFadden (D.D.C.) ruled today that the House of Representatives lacks standing to challenge President Trump's reallocation of appropriated funds to build a border wall.

We last posted on the case here.

The ruling deals a sharp blow to the House in this case (although one imagines it'll be appealed). But other legal challenges against the reallocation of funds are still pending. And as Judge McFadden wrote in some detail, the House has other ways to hold President Trump to account.

Recall the background: Congress declined to appropriate the full amount of money that President Trump sought for the wall; President Trump then turned to three statutory authorities, including an "emergency" authority, that he claimed authorized him to reallocate funds appropriated for other purposes for the wall; and the House sued, arguing that the reallocation violated the Appropriations Clause and federal law.

We analyzed the merits arguments here.

Today's ruling in U.S. House of Representatives v. Mnuchin says that the House hasn't suffered a sufficient concrete injury because of President Trump's reallocation of funds to build the wall. In particular, the court said that the House hasn't suffered a "complete nullification" of its appropriations powers, and therefore hasn't suffered a sufficient injury to support standing:

But unlike the plaintiffs in Raines, the House retains the institutional tools necessary to remedy any harm caused to this power by the Administration's actions. Its Members can, with a two-thirds majority, override the President's veto of the resolution voiding the National Emergency Declaration. They did not. It can amend appropriations laws to expressly restrict the transfer or spending of funds for a border wall under Sections 284 and 2808. Indeed, it appears to be doing so. And Congress "may always exercise its power to expand recoveries" for any private parties harmed by the Administration's actions.

More still, the House can hold hearings on the Administration's spending decisions.

You might wonder why the (Republican) House had standing to challenge President Obama's decision to reallocate funds for the cost-sharing reduction payments under the Affordable Care Act, but the (Democratic) House has no standing to challenge President Trump's reallocation of funds for the wall.

I don't have a good answer, and I'm not sure the court in today's case does, either.

Judge McFadden seems to say that standing in the cost-sharing case was based on the House's constitutional (Appropriations Clause) claim, whereas this case looked more like a statutory claim (in which the House wouldn't have standing). But that seems weak: Judge McFadden himself says that the distinction between a constitutional claim and statutory claim is murky; and the constitutional claim in this case seems as strong, or stronger, than the constitutional claim in the cost-sharing case. Judge McFadden also says that allowing the House to sue here would also allow the House to sue over "every instance of the Executive's statutory non-compliance." But that's plainly not the case.

(Maybe you can understand the court's analysis better than I can. Take a crack: it's at pages 14 to 15 of the enclosed version of the opinion.)

June 3, 2019 in Cases and Case Materials, Congressional Authority, Courts and Judging, Executive Authority, News, Opinion Analysis, Standing | Permalink | Comments (0)

Thursday, May 30, 2019

Ninth Circuit Lets Environmental "Citizen Suit" Move Forward

The Ninth Circuit ruled today that a lower court had jurisdiction over environmental organizations' lawsuit against the United States Forest Service under the "citizen suit" provision in the Resource Conservation and Recovery Act.

The ruling reverses the lower court decision on this point and remands the case for further proceedings related to the merits.

The case, Center for Biological Diversity v. United States Forest Service, started when the Center and others sued the USFS for its failure to address the use of lead ammunition by hunters in Arizona's Kaibab National Forest. According to the plaintiffs, scavenger species, including the California condor, suffer from lead poisoning after they ingest lead ammunition left in animal carcasses by hunters. The Center sought declaratory and injunctive relief pursuant to the RCRA's citizen-suit provision.

The district court dismissed the case, ruling that it amounted to a request for an advisory opinion. The Ninth Circuit reversed.

The Ninth Circuit held that the case was not an advisory opinion. The court said that the Center's challenge presents a "genuine adversary issue between the parties," and that "a ruling in the Center's favor would require USFS to mitigate in some manner--not necessarily by banning the use of lead ammunition in the Kaibab--the harm caused by spent lead ammunition, thereby leading to a change in USFS's operation of the Kaibab."

The court rejected the lower court's conclusion that any judicial ruling would amount only to a recommendation. That's because the RCRA specifically grants the courts jurisdictions over this type of claim and relief, including jurisdiction "to restrain any person who has contributed or who is contributing to [a substantial endangerment to health or the environment], to order such person to take such other action as may be necessary, or both." The court also rejected the lower court's conclusion that any order "would be an improper intrusion into the domain of the USFS." The court said that this is exactly what the RCRA authorizes, and that this position, if accepted, "would preclude courts from issuing injunctions against expert administrative agencies, which, of course, we regularly do."

The court also rejected the USFS's argument that the courts should "declin[e] jurisdiction out of deference to the policy choices of the other branches of the federal government." The court said that the RCRA grants it jurisdiction, and that it has a "virtually unflagging obligation . . . to exercise the jurisdiction given [it]."

The case goes back to the district court for further proceedings related to the merits.

May 30, 2019 in Cases and Case Materials, Courts and Judging, Jurisdiction of Federal Courts, News, Opinion Analysis, Ripeness | Permalink | Comments (0)

Sixth Circuit Tosses Civil Rights Case Against State Judge

The Sixth Circuit this week ruled that a state judge enjoys absolute immunity from a lawsuit stemming from the judge's role in a conspiracy to deprive the plaintiff of its civil rights.

The case, HLV, LLC v. Van Buren County, arose when HLV filed a collection action against another corporation, ELC Leasing, in state court, Judge Hamre presiding. The parties came to an agreement, and Judge Hamre signed off. But then things went south. For one, HLV tried to inspect ELC assets (pursuant to the agreement), but ELC physically resisted--an encounter that ultimately drew the police (but no arrests). For another, Judge Hamre issued a series of questionable motions-rulings that undermined the agreement to HLV's detriment.

At one point, Judge Hamre hosted a status conference, with HLV attorneys calling in, but ELC attorneys attending in person. After the conference ended, Judge Hamre and ELC attorneys discussed the case, and Judge Hamre told the attorneys that ELC wouldn't have to comply with the parties' agreement (among other things).

But unbeknownst to Judge Hamre and the ELC attorneys, an HLV attorney was still on the line, and transcribed the entire conversation.

HLV attorneys moved to disqualify Judge Hamre and the ELC attorneys. Soon after, they received a call from a police officer who said that the county prosecutor issued warrants for their arrest for the earlier confrontation.

HLV sued the whole lot of them (Judge Hamre, the prosecutor, the ELC attorneys) for civil rights violations and conspiracy, among other things. The district court dismissed the case against Judge Hamre, and the Sixth Circuit affirmed.

The court ruled that Judge Hamre was absolutely immune from suit under the doctrine of absolute judicial immunity. It also ruled that he didn't fall into either one of the exceptions, because his actions were "truly judicial" (and not nonjudicial) and because the court had jurisdiction (and there was no "absence of jurisdiction"). It didn't matter that Judge Hamre's decisions exceeded jurisdiction, or that they were legally wrong. That's the point of absolute judicial immunity. As the court explained:

Immunizing judges from civil liability helps prevent [judicial timidity out of fear of liability, which would "detract from independent and impartial adjudication"] by allowing judges to "exercise their functions with independence and without fear of consequence." But there is a cost: one incidental effect of judicial immunity is that judges who have abused their position may escape civil liability.

Judge Hamre ultimate recused himself (but only because he might be called as a witness in the criminal case against the HLV attorneys) and retired.

May 30, 2019 in Cases and Case Materials, Courts and Judging, News, Opinion Analysis | Permalink | Comments (0)

Thursday, May 23, 2019

Another Court Rebuffs Trump's Argument that House Subpoenas "Lack a Legitimate Legislative Purpose"

Judge Edgardo Ramos (S.D.N.Y.) rejected President Trump's motion for a preliminary injunction to halt congressional subpoenas directed at Deutsche Bank and Capital One for President Trump's financial records. We previously posted on the case here. The ruling is (another) sharp blow to President Trump and his efforts to block congressional subpoenas for his financial records.

Judge Ramos delivered his opinion from the bench and issued this short order.

The court ruled that President Trump was "highly unlikely" to succeed in his effort to halt the subpoenas. In response to the administration's now-standard (and bold and inventive) refrain in response to all House inquiries, the court said that Congress, indeed, had a "legitimate legislative purpose" in seeking the records. (Congress has broad investigative and oversight authority, cabined only by the loose "legitimate legislative purpose." But the Court has given that phrase an expansive reading, making President Trump's argument extremely tenuous--a last and desperate resort to shield his records from Congress.)

The ruling follows a similar ruling earlier this week from another court and another case in response to President Trump's effort to block a subpoena directed at his accountant, Mazars, for his financial records.

May 23, 2019 in Congressional Authority, Courts and Judging, Executive Authority, News, Opinion Analysis, Separation of Powers | Permalink | Comments (0)

Wednesday, May 22, 2019

Check it Out: WaPo on Leo's Influence on the Courts

Check out the Washington Post's story and documentary on Federalist Society VP Leonard Leo's influence on the composition of the federal courts.

May 22, 2019 in Courts and Judging, News | Permalink | Comments (0)

Friday, May 3, 2019

First Circuit Says Massachusetts Has Standing to Challenge Contraception Mandate Exemptions

The First Circuit ruled that the state of Massachusetts has standing to sue the Trump administration to halt implementation of its rules establishing religious and moral exemptions to the Affordable Care Act's "contraception mandate."

Those rules allow covered employers to get an exemption from the ACA's requirement that employers provide certain contraceptive services.

The mandate is already subject to nationwide injunctions from other cases (in which the courts have also found valid standing for challenging states; we posted most recently here.) This is just the latest case to move forward.

The court said that Massachusetts sufficiently demonstrated a fiscal harm. Here's why: (1) the state demonstrated that some employers in the state are likely to use the exemptions and drop employees from contraception coverage; (2) the state demonstrated that at least some of those employees are likely to turn to the state for contraception and related services; and (3) this "cause and effect" chain is based on "probable market behavior."

The court also ruled that the state showed causation and redressability--the former for the reasons above; the latter because halting the exemptions would also halt this chain of causation.

The ruling is only preliminary. It only allows the case to move forward on the merits. But as we said: the rules are already subject to nationwide injunctions, and this case won't directly affect those injunctions.

May 3, 2019 in Cases and Case Materials, Courts and Judging, Jurisdiction of Federal Courts, News, Opinion Analysis, Standing | Permalink | Comments (0)

Friday, April 26, 2019

Kansas Supreme Court Finds Fundamental Right to Abortion Under State Constitution

In its extensive opinion in Hodes & Nauser v. Schmidt, the Supreme Court of Kansas held that the right to abortion in protected under its state constitution and regulations of the fundamental right should be subject to strict scrutiny.

The per curiam opinion is exceedingly clear that the opinion rests on independent state constitutional grounds and that it is interpreting §1 of the Kansas state Constitution, adopted in 1859:  "All men are possessed of equal and inalienable natural rights, among which are life, liberty, and the pursuit of happiness." The court specifically finds that this provision creates judicially enforceable "natural rights" such as the right to "personal autonomy" to make decisions regarding our bodies, health care, family formation, and family life, including a woman's right to decide whether to continue a pregnancy.

Having held that the right to an abortion is encompassed within the fundamental right bodily autonomy, the Kansas Supreme Court held that strict scrutiny should apply, which the court articulated as prohibited the state from restricting that right unless it can show it is doing so to further a compelling government interest and in a way that is narrowly tailored to that interest.

At issue in the case is Kansas S.B. 95, passed in 2015, now K.S.A. 65-6741 through 65-6749, which prohibits physicians from performing a specific abortion method referred to in medical terms as Dilation and Evacuation (D & E) except when "necessary to preserve the life of the pregnant woman" or to prevent a "substantial and irreversible physical impairment of a major bodily function of the pregnant woman."

The trial court had issued a preliminary injunction, which the Kansas Supreme Court upheld, but remanded the case for a fuller evidentiary hearing applying strict scrutiny.

Supreme-court

via & caption: Kansas Supreme Court
Seated left to right: Hon. Marla J. Luckert, Hon. Lawton R. Nuss, Chief Justice; Hon. Carol A. Beier.
Standing left to right: Hon. Dan Biles, Hon. Eric S. Rosen, Hon. Lee A. Johnson, and Hon. Caleb Stegall. 

In a concurring opinion, Justice Dan Biles argued that the majority should be more explicit in articulating how strict scrutiny should be applied in the abortion context, suggesting what "our state test should look like using an evidence-based analytical model taken from Whole Woman's Health v. Hellerstedt" (2016).  Justice Biles provided a very detailed roadmap that would be attractive to the trial court. Justice Biles also placed the decision within developments in state constitutional law on abortion:

It is also worth mentioning our court has not gone rogue today. By my count, appellate courts in 17 states have addressed whether their state constitutions independently protect a pregnant woman's decisions regarding her pregnancy from unjustifiable government interference. Of those, 13 have plainly held they do. [citations omitted].

The sole dissenting Justice of the seven Justices of the Kansas Supreme Court (pictured above) was Justice Caleb Stegall, who relied on numerous dissenting opinions in both the United States Supreme Court and Kansas Supreme Court. He began his opinion by stating "This case is not only about abortion policy—the most divisive social issue of our day—it is more elementally about the structure of our republican form of government." In essence, he considers the majority to be taking an activist stance. The majority opinion does devote more than a little attention to refuting and engaging with the dissent's arguments.

Because the case cannot be reviewed by the United States Supreme Court (given that the state's highest court decided it on the independent ground of its state constitution, unless it is argued it infringes on another constitutional right), subsequent constitutional law issues will be concentrated on what happens in the trial court and what might happen in other states. 

April 26, 2019 in Abortion, Courts and Judging, Due Process (Substantive), Family, Federalism, Fourteenth Amendment, Jurisdiction of Federal Courts, Opinion Analysis, State Constitutional Law, Supreme Court (US) | Permalink | Comments (0)

Tuesday, April 23, 2019

SCOTUS Hears Oral Argument on Census Citizenship Question

The United States Supreme Court heard oral arguments  in Department of Commerce v. New York on the issue of whether the decision by Secretary of Commerce Wilbur Ross to include a citizenship question on the main census questionnaire for 2020 is lawful. The constitutional issues in the case include the standing of the challengers and the "actual enumeration" requirements in the Constitution, Art. I, § 2, cl. 3, and Amend. XIV, § 2.  The equal protection argument has seemingly receded into the background. Taking center stage are the nonconstitutional issues centering on the Administrative Procedure Act.

Recall that the case was originally before the Court on an order requiring Secretary Wilbur Ross to submit to a deposition.  However, Recall that in January in New York v. United States Department of Commerce, United States District Judge Jesse Furman decided the case without the Secretary's evidence, finding that without it there was no proof of discriminatory intent sufficient for an equal protection challenge.  Nevertheless, Judge Furman vacated and enjoined the implementation of the decision of Department of Commerce Secretary Wilbur Ross adding a citizenship question to the 2020 census questionnaire, holding that the Secretary's decision violated provisions of the APA, was arbitrary and capricious, and most unusually, pretextual.  

Recall also that in March California v. Ross, United States District Judge Richard Seeborg has found the decision of Secretary of Commerce Wilbur Ross to add a citizenship question to the 2020 census unlawful under the Administration Procedure Act and unconstitutional under the Enumeration Clause.

Arguing for the United States Department of Commerce, Solicitor General Noel Francisco was quickly interrupted by Justice Sotomayor in his very first description of the facts  — that "Secretary Ross reinstated a citizenship question that has been asked as part of the census in one form or another for nearly 200 years" — when she noted that the citizenship question was not part of the short survey that is at issue in the present case.  In short, Solicitor General Francisco's argument was that the Secretary has wide discretion to put whatever questions he'd like on the census for whatever reason.  While Justices Kavanaugh, Gorsuch, Alito, and Chief Justice Roberts seemed sympathetic to this wide discretion, especially in their subsequent questioning, Justices Sotomayor and Kagan characterized the Secretary's decision as a "solution in search of a problem." 

Justice Kagan: . . . [as] Justice Sotomayor was talking about was that it did really seem like the Secretary was shopping for a need. Goes to the Justice Department. Justice Department says we don't need anything. Goes to DHS. DHS says they don't need anything. Goes back to the Justice Department. Makes it clear that he's going to put in a call to the Attorney General. Finally, the Justice Department comes back to him and says: Okay, we can give you what you want.

So you can't read this record without sensing that this -- this need is a contrived one. Nobody had -- there have been lots of assistant attorney general in the Civil Rights Division that have never made a plea for this kind of data.

The Solicitor General of New York (and former Attorney General of New York) Barbara Underwood argued that there was nothing before the Secretary to support the notion that this would assist in making determinations under the Voting Rights Act. Justice Kavanaugh interestingly asked Underwood about United Nations recommendations for citizenship questions, a topic which Douglas Letter came back to during his argument, representing the United States House of Representatives as amicus curiae in support of New York and the other respondents, stating that other nations may not have an "actual enumeration" Clause in their constitutions, and stressing the importance of accurate census data to the House of Representatives given its purpose in representation.

Dale Ho, arguing for New York Immigration Coalition, discussed the intersection between the Voting Rights Act (VRA) and the census, explaining how the Census Bureau alters and approximates information.

Assuming the Court does not reach the constitutional issues, the heart of the case under the APA will be how much deference the Court is willing to afford to the Secretary.  This deference to the Secretary's discretion was interestingly implicated in the argument concerning the question of the Congressional role, with Douglas Letter pointing out that

The Secretary of Commerce has been called before Congress to explain what he did here, and Assistant Attorney General Gore . . .  They have been declining to answer. They're not giving Congress the information it requests because they say there's litigation going on. And, I repeat, this is a matter of public record.

Given recent other matters of public record in which government officials are refusing to come before Congress, more may be at stake in this case than the APA, including separation of powers issues.

April 23, 2019 in Congressional Authority, Courts and Judging, Elections and Voting, Executive Authority, Oral Argument Analysis, Race, Supreme Court (US) | Permalink | Comments (0)

Friday, April 19, 2019

Ninth Circuit Rebuffs Government's Challenge to California's Sanctuary Laws

The Ninth Circuit ruled yesterday that the federal government was unlikely to succeed in its challenge to certain California "sanctuary" laws that protect undocumented immigrants from federal immigration enforcement. The ruling denies the government's motion for a preliminary injunction against these laws. At the same time, the court remanded one particular provision to the lower court for further consideration.

The ruling, while preliminary, is yet another blow to the federal government's efforts to clamp down on sanctuary jurisdictions.

The case, United States v. California, tested three of California's "sanctuary" provisions. The federal government argued that they violated the doctrine of intergovernmental immunity (which prohibits state governments from regulating the federal government) and that federal law preempted them. 

The first, AB 450, prohibits public and private employers in the state from providing consent to an immigration enforcement agent to enter any nonpublic area of their property and to review their employment records without a subpoena or warrant. It also requires employers to provide employees with a notice of inspection by an immigration agency within 72 hours of receiving the notice. The court rejected the government's intergovernmental immunity claim, because "AB 450 is directed at the conduct of employers, not the United States or its agents, and no federal activity is regulated." It rejected the obstacle-preemption argument, because the provision regulates the relationship between employers and their employees, not between federal immigration authorities and the employees they regulate, and therefore it "imposes no additional or contrary obligations that undermine or disrupt the activities of federal immigration authorities." 

The second, AB 103, requires the California attorney general to inspect "county, local, or private" detention facilities where immigrants are housed and to review the conditions of confinement, including the "standard of care and due process provided to" detainees, and "the circumstances around their apprehension and transfer to the facility." The court ruled that the government was unlikely to succeed on its intergovernmental immunity argument as to the provision's burdens that duplicated preexisting inspection requirements, including the due process provision. But it ruled that the government was likely to succeed as to the provision's excessive burdens that fell uniquely on the federal government (the requirement that the state ag examine the circumstances surrounding the apprehension and transfer of immigration detainees). The court ruled that the government was not likely to succeed on the merits of its preemption claim, because "California possesses the general authority to ensure the health and welfare of inmates and detainees in facilities within its borders," and the government failed to show that Congress intended to supersede this authority.

The final provision, SB 54, restricts law enforcement from cooperating with federal immigration authorities in immigration enforcement. The court held that the federal government's preemption claim runs headlong into the Tenth Amendment's anti-commandeering principle. That's because the federal government can't force the state or its officers into participating in federal immigration enforcement, even if "SB 54 may well frustrate the federal government's enforcement efforts." The court rejected the federal government's intergovernmental immunity argument, because accepting that claim "would imply that California cannot choose to discriminate against federal immigration authorities by refusing to assist their enforcement efforts--a result that would be inconsistent with the Tenth Amendment and the anticommandeering rule." Finally, the court ruled that SB 54 does not directly conflict with 8 U.S.C. Sec. 1373, which prohibits state and local governments from prohibiting their officers from communicating with federal immigration officials about the immigration status of any person.

April 19, 2019 in Courts and Judging, Federalism, News, Opinion Analysis, Preemption, Tenth Amendment | Permalink | Comments (0)

Tuesday, April 16, 2019

Daily Read: Crawford and Simon on Due Process and Tax at SCOTUS

The United States Supreme Court heard oral arguments in North Carolina Dept of Revenue v. Kimberley Rice Kaestner 1992 Family Trust posing the question of whether a state's taxation of a trust based solely on the residence of a beneficiary violates due process.

Bridget_CrawfordProfessors Bridget Crawford (pictured left) and Michelle Simon (pictured below) in their article in UCLA Law Review Discourse compellingly argue that the Court should hold that a state has no constitutional authority to impose a tax on trust income where the trust’s only connection with the forum state is the residence of a contingent beneficiary. In The Supreme Court, Due Process and State Income Taxation of Trusts they contend that "Kaestner Trust is the most important due process case involving trusts that the Court has decided in over sixty years; it bears directly on the fundamental meaning of due process."

Michelle_Simon_1Crawford and Simon also provide a useful primer on the law and facts relevant to the issues of due process.  They state that for some "lawyers and lucky individuals," a  "list of common verbal triads includes the words 'grantor, trustee, and beneficiary,'" which will be just as familiar as other words that "seem to roll off the tongue naturally in threes" such as tic-tac-toe, snap, crackle, pop; Larry, Curly, and Moe; and peas porridge hot.  However, if one is not one of those "lucky individuals" and perhaps is even a bit shy of trusts and taxation, the article proves itself a patient and trustworthy guide.

The article's well-earned conclusion states:

Justice Harry Blackmun famously said that he knew he was “in the doghouse” with the Chief Justice if he received an assignment to write the opinion in a tax case. But Kaestner Trust is no dog of a case. It broadly implicates basic principles of due process. There are many reasons to allow each state to implement its own tax (and strong arguments in favor of a more uniform approach), but it would be fundamentally unfair to require a trust to pay income tax to a jurisdiction solely on the basis of the residence of a discretionary trust beneficiary who does not actually receive any trust distributions. Once the beneficiary receives trust income, it is reasonable in all respects to subject that income to taxation. The Court’s decision in Kaestner Trust will have lasting impact on the future of due process jurisprudence.

Ultimately, trusts are creatures of legal fiction. They exist because the law tolerates the idea that it is possible to split legal and equitable title to property. Trusts are not the inevitable consequence of some right to control property; their existence reflects the acceptance of the story of split ownership. In the case of trust law, fiction is already strange enough. State income taxation should hew close enough to material reality that a trust is taxed only when the trust has some meaningful connection with the jurisdiction. An accident of fate—such as where a wholly discretionary beneficiary decides to live—should not trigger income taxation.

[footnotes omitted].

A must-read for ConLawProfs seeking to understand Kaestner Trust and for whichever Justice (and clerks) assigned to write the opinion.

April 16, 2019 in Courts and Judging, Due Process (Substantive), Family, Science, Supreme Court (US) | Permalink | Comments (0)

Saturday, April 13, 2019

Daily Read: Federal Judge Carlton Reeves on Attacks on the Judiciary

United States District Judge for the Southern District of Mississippi Carlton Reeves in a speech at the University of Virginia School of Law addressed the critiques of the judiciary and the lack of diversity in judicial appointments.  Judge Reeves recounts a history of the federal bench and equality, with some progress in diversifying the bench, but naming the present state of affairs as the "third great assault on our judiciary."

The written version of the speech includes footnotes, including references to presidential tweets.  In speaking about "this Administration’s judicial nominations, especially those confirmed with the advice and consent of the Senate," Judge Reeves noted:

Of the Article III judges confirmed under the current Administration, 90% have been white. Just one of those judges is black. Just two are Hispanic. It’s not just  about racial diversity. Barely 25% of this Administration’s confirmed judges are women. None have been black or Latina. Achieving complete gender equality on the federal bench would require us to confirm  only 23 women a  year. How hard could that be?  . . . . Think:  in a country where they  make up  just 30% of the population, non-Hispanic white men make  up nearly 70% of this Administration’s confirmed judicial appointees. That’s not what America looks like. That’s not even what the legal profession looks like.

In addition to commenting on the lack of diversity on the United States Supreme Court ("We have as many justices who have graduated from Georgetown Prep as we have Justices who have lived as a non-white person") and the duty of judges to diversify their own hiring of law clerks, Judge Reeves spoke to access to justice issues:

Courts must do more than denounce and diversify. For the attack on the judiciary aims to close the courthouse doors to those who most need justice by shrinking the size, resources, and jurisdiction of courts. Over the last 30 years,while the U.S. population has increased by over 30%; Congress has increased the number of Article III judges by just 3%. Meanwhile, there are continued attempts to close the doors to our own courtrooms. I think of heightened pleading standards, the rise of mandatory arbitration, and judges who proclaim that “prisoner civil rights cases should be eliminated from federal dockets.” Defending the judiciary requires judges to demand, not diminish, the resources they need to find truth. We must expand the reach and power of our courts, offering justice to all who claim the promise of America.

The speech is worth listening to in full:

April 13, 2019 in Courts and Judging, Current Affairs, Equal Protection, Race | Permalink | Comments (0)

Wednesday, April 10, 2019

District Court Tosses Challenge to Capital Post-Conviction Counsel Regs

Judge Reggie B. Walton (D.D.C.) ruled that plaintiffs lacked standing to challenge federal regulations that specified a process for certification of state capital counsel in post-conviction proceedings. The ruling means that the regs stay on the books, unless and until a plaintiff who can demonstrate a concrete harm brings a challenge. 

Judge Walton's ruling follows a 2016 Ninth Circuit ruling by similar plaintiffs against the same regs.

The case tests DOJ's 2013 regs to certify state's mechanism for providing counsel to indigent prisoners in state postconviction proceedings. Under the Antiterrorism and Effective Death Penalty Act of 1996, if a state provides a mechanism for counsel, and gets it certified by DOJ, then (1) the capital prisoner gets an automatic stay from execution while postconviction and federal habeas proceedings are pending, (2) the statute of limitations for filing a federal habeas petition is shortened from one year to six months from the date of final judgment of the state courts on direct appeal, and (3) federal courts have to give priority status to the habeas case and resolve it within time periods set by statute.

DOJ implemented regs in 2013 to set standards and a process for DOJ certification of a state mechanism. (Again, certification would trigger the three things above, including the compressed time to file a federal habeas petition.) The regs allow the AG to "determine the date on which the state established its mechanism." And they include a retroactivity provision: "The certification is effective as to the date the Attorney General finds the state established its adequate mechanism; as this date can be in the past, a certification decision may be applied retroactively." 

Under the plain language of AEDPA and the regs, the AG's determination of the certification date--especially a retroactive determination--could throw a serious curve ball at capital attorneys and prisoners in the postconviction pipeline, by suddenly (or even retroactively) shortening their deadline. Even without formal certification (yet), attorneys that represent capital prisoners in postconviction cases have to adjust their practices in accepting new clients.

So when Texas applied for certification, but before it received certification, the Texas Defender Service and individual prisoners sued to halt and set aside the regs. But the court dismissed the case for lack of standing, and lack of ripeness.

Applying Havens Realty Corp. v. Coleman, the court held that

because "TDS's mission is to establish a fair and just criminal justice system in Texas" and a significant aspect of TDS's work includes "represent[ing] death-sentenced prisoners in post[]conviction proceedings in federal court," the 2013 Regulations--particularly the provision allowing for the potential retroactive application of certification--is "'at loggerheads' with [TDS's] mission-driven activities."

But "TDS's position that it has been 'forced to expend substantial resources to prepare its comments [to Texas's petition]' and that its staff 'divert[ed] their attention from their ordinary responsibilities,' fails to satisfy the second prong of injury-in-fact under Havens because TDS has not shown that preparing comments to advocate against Texas's certification was an 'operational cost[] beyond those normally expended to carry out its advocacy mission.'"

As to the individual plaintiffs, the court held that the 2013 regs weren't aimed at them, and that their rights therefore could only "be affected indirectly, if the sentencing state requests certification and if the Attorney General finds that the state's capital-counsel mechanism comports with" the Act and regs. "The 2013 Regulations therefore do not have the coercive impact necessary to confer standing on the individual plaintiffs to bring their preenforcement challenge to the 2013 Regulations."

The court also ruled that the plaintiffs' claims weren't ripe for review.

April 10, 2019 in Cases and Case Materials, Courts and Judging, Jurisdiction of Federal Courts, News, Opinion Analysis, Ripeness, Standing | Permalink | Comments (0)

D.C. Circuit Says Prisoner's Equitable Claims are not Moot, Even After Transfer

The D.C. Circuit ruled that a federal prisoner's civil rights claims didn't become moot simply because he was transferred to another prison. The ruling goes against the general principle that a prisoner's "transfer or release from a prison moots any claim he might have had for equitable relief arising out of the conditions of confinement in that prison." According to the D.C. Circuit, that's because this prisoner alleged that he had been subject to the practices in different facilities, and because he alleged a policy or practice of violating regulations that would apply to him in any facility.

The case, Reid v. Hurwitz, arose when federal prisoner Gordon Reid alleged that federal prison officials failed to deliver his magazine subscriptions and deprived him of outside exercise during his repeated stays in the special housing unit, and deprived him of meaningful access to administrative remedies. Importantly, he alleged that with each violation, prison officials cited "BOP policy." Reid sought declaratory, injunctive, and mandamus relief.

The district court dismissed the case, citing the "normal" rule that a prisoner's claims for equitable relief become moot when he or she leaves the prison. But the D.C. Circuit reversed, holding that Reid's harms are "capable of repetition but evading review." The court wrote that Reid alleged that he was in the SHU in different facilities, that he suffered the same harms in different SHUs, and that prison officials gave the same explanation: "policy." Add those up, and you get "capable of repetition but evading review." Here's the court:

The BOP's argument ignores that Reid's complaint identifies not only single instances but also BOP's alleged policy or practice or violating its own regulations to the detriment of Reid. In particular, Reid has alleged three key facts. First, he has been housed at eight different SHUs since 2008. Second, he has suffered a uniform set of deprivations at each SHU that contradict BOP's written regulations. Third, each time he has suffered a deprivation, he alleges that BOP officials justify the deprivations based on "BOP policy." Having been placed in a SHU in myriad different BOP institutions, subject each time to a restriction allegedly imposed under a purported BOP policy or practice contravening BOP regulations, Reid has proffered a logical theory that the challenged actions reasonably will recur despite his current transfer out of the SHU.

***

Both the District Court and the government on appeal have failed to grapple with Reid's claim that he was repeatedly subjected to deprivations in the SHU due to an ongoing policy or practice of the BOP.

At the same time, the court acknowledged that there may be several other reasons for the district court to dismiss the case on remand.

Judge Katsas dissented, arguing that "[w]e should reject Reid's conclusory allegation that BOP has implemented unlawful nationwide policies. And without such unifying policies, the specific disputes alleged here are not capable of repetition."

April 10, 2019 in Cases and Case Materials, Courts and Judging, Jurisdiction of Federal Courts, Mootness, News, Opinion Analysis | Permalink | Comments (0)

Tuesday, March 26, 2019

SCOTUS Hears Oral Arguments in Partisan Gerrymandering Case

The Court heard oral arguments in Rucho v. Common Cause (& League of Women Voters) regarding the constitutionality of partisan gerrymandering in North Carolina. The major question raised by the arguments was whether the courts have any role in protecting voters from partisan gerrymandering.

Recall that in an almost 200 page opinion, the three judge court resolved the issues of justiciability and standing in favor of the plaintiffs and held that the redistricting violated equal protection. The United States Supreme Court stayed that judgment.

Recall also that last term the Court essentially dodged the issue of the constitutionality of partisan gerrymandering, finding in Gill v. Whitford involving a challenge to Wisconsin's alleged partisan gerrymandering the Court found that the plaintiffs did not prove sufficient Article III standing to sustain the relief granted by the three judge court and in Benisek v. Lamone, involving a challenge to alleged political gerrymandering in Maryland, declining to to disturb the three judge court's decision not to grant a preliminary injunction.

The question of the standard by which to judge partisan gerrymandering preoccupied the arguments with the inevitable slippery slope of having the courts guarantee proportional representation being invoked.  Additionally, the question of whether the federal courts should defer was raised repeatedly, with the solution being a state referendum, or even Congressional action, with Paul Clement representing the republican state legislators arguing that

And if you look at HR-1, the very first bill that the new Congress put on their agenda, it was an effort to essentially force states to have bipartisan commissions, now query whether that's constitutional, but it certainly shows that Congress is able to take action in this particular area.

[emphasis added].

Clement argued vigorously that the federal courts should have no power to act to prevent partisan gerrymandering, however extreme, with Justice Sotomayor stating that such an argument's "ship has sailed in Baker v. Carr" (1962), but Clement concluding with the point in his rebuttal referencing the authors of the Federalist Papers as accepting the political realities of partisan gerrymandering.

 

March 26, 2019 in Courts and Judging, Due Process (Substantive), Elections and Voting, Equal Protection, Oral Argument Analysis, Supreme Court (US) | Permalink | Comments (0)

Monday, March 18, 2019

SCOTUS Hears Oral Argument on Virginia Racial Gerrymandering, Bethune-Hill Redux

The United States Supreme Court heard oral argument in Virginia House of Delegates v. Bethune-Hill involving the ultimate issue of whether the redistricting plan of Virginia is racial gerrymandering in violation of the Equal Protection Clause of the Fourteenth Amendment.  Like many states, the redistricting legal landscape in Virginia is complex; a good explainer from Loyola-Los Angeles Law School is here.

Recall that two years ago, in March 2017, the Court in Bethune-Hill v. Virginia State Board of Elections, the Court clarified the standard for deciding whether racial considerations in reapportionment violate the Equal Protection Clause. It affirmed the three-judge court's decision as to one of the districts as constitutionally considering race, but remanded the determination of the constitutional status of the other eleven districts. 

On remand, the three-judge court divided, with the detailed and extensive opinion authored by Judge Barbara Milano Keenan for the majority ultimately concluding that the "Commonwealth of Virginia's House of Delegates  Districts numbers 63, 69, 70, 71, 74, 77, 80, 89, 90, 92, and 95 as drawn under the 2011 Redistricting Plan, Va. Code Ann. § 24.2—3o4.03, violate the Equal Protection Clause. "

Speaker_Bill_Howell_opens_session_at_Virginia_House_of_DelegatesDuring that proceeding, the Virginia House of Delegates — one house of the Virginia legislature — was allowed to intervene, but a question on appeal to the United States Supreme Court is whether the House of Delegates, represented by Paul Clement, has standing to appeal, especially given that the Virginia Board of Elections, represented by Toby Heytens, the appellate the first time the case reached the United States Supreme Court, is now the appellee in agreement with Bethune-Hill, represented by Marc Elias. Morgan Ratner, an assistant Solicitor General, appeared on behalf of the United States and fully supported neither party, but did argue that the House of Delegates lacked standing, because "the House as an institution isn't harmed by changes to individual district lines, and while states can authorize legislatures to represent them in court, Virginia hasn't done so."  While Justice Alito seemed to take the position that all the House of Delegates needed to establish was some injury on fact, such as  the cost of publishing a new map showing the new districts, with Justice Sotomayor labeling Clement's statement that Virginia had "forfeited" the ability to object to the appeal as an "extreme" view.  There was seemingly some sympathy to Toby Heytens' view that the Court was essentially being asked to referee a dispute between branches of the Virginia state government, with Justice Alito also asking whether or not the question of which entity may represent the state is not a question that should be certified to the Virginia Supreme Court.  The precedential value and applicability of Minnesota State Senate v. Beens (1972), which Justice Ginsburg pointed out has not been cited in 30 years and was from an era in which standing was more "relaxed" and which others distinguished in terms of the impact on the legislative body.

On the merits, one issue was credibility of witnesses and deference to the court's factual determinations, especially given that the first three judge court had reached some opposite conclusions, including in some districts whether or not racial considerations predominated (and thus strict scrutiny would apply). This might seemingly be explained by the different standard articulated by the Court's previous decision in Bethune-Hill before remand, but this did not seem to be addressed. As typical, the precise facts in the map-making and the interplay between the Voting Rights Act and the Equal Protection Clause made the argument exceedingly detailed. For example, there are particular questions about the BVAP [Black Voting Age Population] in specific districts and what percentage is acceptable in each district as individualized or as comparative to other districts.

If the Court does not resolve the case on lack of standing, one can expect another highly specific opinion regarding racial gerrymandering in the continuing difficult saga of racial equality in voting.

[image: Virginia House of Delegates 2012 via]

March 18, 2019 in Courts and Judging, Elections and Voting, Equal Protection, Fourteenth Amendment, Race, Standing | Permalink | Comments (0)

Thursday, March 14, 2019

New York Appellate Court Upholds Jurisdiction Over President in Zervos's Defamation Lawsuit

In its opinion in Zervos v. Trump, the Appellate Division, First Department of the New York State courts held that the lawsuit for defamation could proceed against the President while he is in office.

Recall that in March 2018, the New York state trial judge ruled the lawsuit for defamation by Summer Zervos against now-President Trump could proceed, denying a motion to dismiss or to stay by Trump based on his presidential status. The trial judge decided that the holding of  the United States Supreme Court in its unanimous 1997 decision of Clinton v. Jones that then-President Clinton was subject to suit in federal court extended to state court.  Recall also that soon thereafter, the appellate division in New York denied President Trump's motion for a stay, in a summary decision, and likewise soon thereafter, the New York Court of Appeals (NY's highest court) dismissed the appeal by Trump on the ground that the order appealed from does not finally determine the action.

In today's divided decision, the appellate division reached the merits of the trial judge's opinion with the majority affirming the decision regarding the President's amenability to suit, and all five judges agreeing that there was a claim for defamation.

Writing for the majority of three judges, Judge Dianne Renwick concluded that the Supremacy Clause, Article VI, does not bar a state court from exercising jurisdiction. She rejected Trump's argument that because he is the "ultimate repository of the Executive Branch's powers and is required by the Constitution to always be in function" as being without support in the constitutional text or case law and conflicting with the fundamental principle that the United States is a "government of laws and not of men." After a detailed discussion of Clinton v. Jones, she stated that in short, the decision "clearly and unequivocably demonstrates that the Presidency and the President are indeed separable." She continued that "aside from the forum, plaintiff's case is materially indistinguishable from Clinton v. Jones," and noted that Congress had not acted to afford the President more protection, interestingly citing and quoting an article by the most recent Supreme Court Justice, Brett Kavanaugh.

The difference between the majority and the dissent is centered on footnote 13 of Clinton v. Jones:

Because the Supremacy Clause makes federal law "the supreme Law of the Land," Art. VI, cl. 2, any direct control by a state court over the President, who has principal responsibility to ensure that those laws are "faithfully executed," Art. II, § 3, may implicate concerns that are quite different from the interbranch separation-of-powers questions addressed here. Cf., e.g., Hancock v. Train, 426 U.S. 167, 178—179 (1976); Mayo v. United States, 319 U.S. 441, 445 (1943). See L. Tribe, American Constitutional Law 513 (2d ed.1988) ("[A]bsent explicit congressional consent no state may command federal officials ... to take action in derogation of their ... federal responsibilities")."

But as the majority opinion explains,

the cases cited in the footnote above suggest only that the Supreme Court was concerned with a state's exercise of control over the President in a way that would interfere with his execution of federal law (Hancock, 426 US at 167 [holding that the State of Kentucky could not force federal facilities in the State to obtain state permits to operate]; Mayo, 319 US at 441 [holding that a Florida state official could not order the cessation of a federal fertilizer distribution program]; but see Alabama v King & Boozer, 314 US 1 [1941] [holding that the State of Alabama could charge a tax on lumber that a federal government contractor purchased within the state for construction of an army base, where the federal government would ultimately pay the tax]).

The_Sword_of_Damocles _1812The difference between the majority and dissent centers on the possibility that a state court could hold the President in contempt.  For the majority, this is a "hypothetical concern" that is not presently before the court, noting also that contempt is unusual in all circumstances and state courts would be aware of the issue. For the dissent, on the other hand, although there is no reason to believe the President Defendant "would not cooperate in the litigation, there is no way to be absolutely certain that the court would not at some point have to take steps to protect its own legitimacy;" the contempt power would be a "sword of Damocles hanging over the President's head."

All judges agreed that Zervos stated a claim for defamation, rejecting Trump's claim that the statements were mere hyperbole and not pertaining to the plaintiff. Instead, he was clearly including Zervos in statements and his "flat-out denial of a provable, specific allegation against him concerning his own conduct, accompanied by a claim that the accuser was lying" is not rhetorical or a statement of opinion.

Presumably, the case will be heard on appeal by New York's highest court.

[image: Richard Westall, Sword of Damocles, 1812 via]

 

March 14, 2019 in Courts and Judging, Executive Authority, Executive Privilege, Federalism, First Amendment, Opinion Analysis, Speech | Permalink | Comments (0)

Wednesday, March 13, 2019

District Court Gives the Go Ahead to Sierra Club Suit Against Energy for Lack of Energy-Efficiency Regulation

Judge Emmet G. Sullivan (D.D.C.) ruled in Sierra Club v. Perry that Sierra Club has associational standing to sue the Department of Energy for the Department's failure to promulgate energy-efficiency standards for manufactured housing, as required by the Energy Independence and Security Act of 2007.

The ruling means that Sierra Club's case can go forward. And given the court's conclusions, and the law, it seems likely that Sierra Club will win. But that doesn't mean that we'll see regs any time soon.

The case arose when Sierra Club sued the Department for failing to promulgate energy-efficiency standards for manufactured housing by 2011, as required by the Act. The Department moved to dismiss for lack of standing. The court rejected that motion.

The court ruled that Sierra Club sufficiently pleaded that its members suffered three different harms. As to the first, economic injury, the court said that "members have alleged that they either cannot find, or it is difficult to find, energy-efficient manufactured homes, and their ability to search for such homes will continue to be adversely impacted by DOE's inaction." The court noted that under circuit law a plaintiff has suffered an injury to challenge an agency action if the action prevented consumers from purchasing a desired product--even if they could purchase an alternative.

As to the second, health injury, the court said that "seven members allege that their exposure to air pollutants and other harmful emissions is negatively impacting their health due to the lack of standards for energy-efficiency in manufactured housing." 

As to the third, procedural injury, the court simply said that "the Secretary has compromised Sierra Club's members' 'concrete and particularized procedural rights,' because it is clear that the Secretary failed to establish regulations for energy-efficiency standards mandated by Congress, and it is substantially probable that the Secretary's failure to establish the standards has caused Sierra Club's members' concrete injury."

The court held that Sierra Club satisfied the causation and redressability requirements, because, by the Department's own reckoning, regulations would clean up the air (and a lack of regulations keeps it dirtier). 

March 13, 2019 in Cases and Case Materials, Courts and Judging, Jurisdiction of Federal Courts, News, Opinion Analysis, Standing | Permalink | Comments (0)

Tuesday, March 12, 2019

Sixth Circuit En Banc Majority Upholds Ohio's Ban on Funding Planned Parenthood

In its en banc opinion in Planned Parenthood of Greater Ohio v. Hodges, the Sixth Circuit reversed a permanent injunction by the district judge against Ohio Rev. Code §3701.034 which bars any state funding —  including government-sponsored health and education programs that target sexually transmitted diseases, breast cancer and cervical cancer, teen pregnancy, infant mortality, and sexual violence — to any organization that performs or promotes abortion. 

In less than 12 pages, Judge Jeffrey Sutton, writing for the 11 judge majority, rejected the claim that the Ohio statute was an unconstitutional condition on the due process right encompassing the right to abortion by stating that Planned Parenthood had no substantive due process right to provide abortions: "The Supreme Court has never identified a freestanding right to perform abortions."  Moreover, Sutton's opinion rejected the argument that

the Ohio law will deprive Ohio women of their constitutional right of access to abortion services without undue burden, because it will lead Planned Parenthood and perhaps other abortion providers to stop providing them. Maybe; maybe not. More to the point, the conclusion is premature and unsupported by the record.

In this way, the majority distinguished the United States Supreme Court's most recent abortion case, Whole Woman's Health v. Hellerstedt (2016), albeit briefly (with one "cf." citation and one "see" citation).

In the dissenting opinion, Judge Helene White writing for 6 judges, criticizes the majority for not mentioning "much less" applying, 

the test the Supreme Court has recently articulated governing the unconstitutional-conditions doctrine. That doctrine prohibits the government from conditioning the grant of funds under a government program if: (1) the challenged conditions would violate the Constitution if they were instead enacted as a direct regulation; and (2) the conditions affect protected conduct outside the scope of the government program.

citing Agency for Int’l Dev. v. Alliance for Open Soc’y Int’l (2013) [the "prostitution pledge" case].
The dissent concludes that because "(1) the funding conditions in this case would result in an undue burden on a woman’s right to obtain nontherapeutic abortions if imposed directly, and (2) the six federal programs have nothing to do with Plaintiffs’ performing abortions, advocating for abortion rights, or affiliating with organizations that engage in such activity, all on their own 'time and dime,' " the Ohio statute should be unconstitutional.

The dissenting opinion also discusses the First Amendment argument, which the district court judge had credited but which the majority discounted because to prevail Ohio need only show that one limitation satisfied the Constitution and because "the conduct component of the Ohio law does not impose an unconstitutional condition in violation of due process, we need not reach the free speech claim." For the dissent, the free speech claim was not mooted and should be successful as in Agency for Int’l Dev. v. Alliance for Open Soc’y Int’l (2013).

 

 

March 12, 2019 in Abortion, Courts and Judging, Due Process (Substantive), First Amendment, Fourteenth Amendment, Gender, Opinion Analysis, Reproductive Rights, Supreme Court (US) | Permalink | Comments (0)