Tuesday, October 8, 2019
White House Counsel Pat Cipollone sent a scathing letter today to House leadership blasting the impeachment inquiry and stating that the White House won't cooperate. Given White House intransigence so far, it's not clear that the letter will really change anything on the ground.
Cipollone cited two flaws: the process lacks due process protections, and the House has no "legitimate basis" for the inquiry.
As to due process, Cipollone claims that an impeachment inquiry requires due process, and that the House process falls short:
To comply with the Constitution's demands, appropriate procedures would include--at a minimum--the right to see all evidence, to present evidence, to call witnesses, to have counsel present at all hearings, to cross-examine all witnesses, to make objections relating to the examination of witnesses or the admissibility of testimony and evidence, and to respond to evidence and testimony. Likewise, the Committees must provide for the disclosure of all evidence favorable to the President and all evidence bearing on the credibility of witnesses called to testify in the inquiry. The Committees' current procedures provide none of these basic constitutional rights.
Cipollone also complained that the committees' ranking members lack subpoena power, and that "the Committees have also resorted to threats and intimidation against potential Executive Branch witnesses."
The impeachment process, of course, is a nonjusticiable political question under Nixon v. United States. So we don't have the Supreme Court's say-so as to what, if any, measures of due process are required. In the case that Cipollone cites as support for his claim that impeachment requires due process, Judge Hasting's impeachment, Hastings raised similar due process complaints about his trial in the Senate. But in a ruling not cited by Cipollone, the district court ultimately dismissed Hasting's complaint as raising a nonjusticiable political question under Nixon, and therefore did not touch on any process that might be due in an impeachment.
Cipollone's claims don't come in the context of a court case, though, so the political question doctrine doesn't foreclose them. Instead, they may cleverly put House Democrats in an awkward spot. The only practical way that House Democrats can get White House cooperation is to go to court; but if they seek to enforce a subpoena issued in an impeachment inquiry in court, the White House will surely claim that the case is a nonjusticiable political question under Nixon. Regardless of merits of that claim, unless the House can get the courts to enforce their subpoenas, the House will have to base its articles of impeachment only on evidence that it can obtain independent of White House cooperation, and, of course, obstruction. This may make it even more likely (if that's possible) that the House will impeach, but it also may make it even less likely (if that's possible) that the Senate will convict.
As to the lack of a "legitimate basis" for the inquiry, Cipollone argues that President Trump's call to President Zelenskyy "was completely appropriate," that "the President did nothing wrong," and therefore that "there is no basis for an impeachment inquiry." This echoes the familiar (and tenuous) constitutional claim that we've heard from the White House in nearly every congressional investigation--that the House lacks a "legitimate legislative purpose." It also begs the question: the whole purpose of an impeachment inquiry, it seems, is to get more evidence to discover whether there's a basis for going forward with impeachment. The House needs information from the executive branch to help it make that determination.
Cipollone's letter is a stunning rebuke. But in the end, it's not clear that it's much of a game-changer, only because the White House hasn't much cooperated so far, anyway.
Monday, October 7, 2019
Judge Victor Marrero (S.D.N.Y.) today dismissed President Trump's lawsuit that sought to halt a state grand jury subpoena issued to Mazars USA for Trump organization financial documents, including the President's tax returns. We posted most recently here.
The ruling deals a blow to President Trump's efforts to protect his tax returns from disclosure, and to halt any state criminal process against him. But it may be temporary: the Second Circuit immediately stayed the ruling pending expedited review; and whatever the Second Circuit says, this case seems destined for the Supreme Court.
The district court ruled that President Trump's suit was barred by Younger abstention, and that his constitutional claim likely failed on the merits.
As to Younger abstention, which requires federal courts to abstain from intervening in pending state court proceedings under certain circumstances, the court said that the grand jury subpoena was part of a pending state criminal proceeding (despite a circuit split on the question), that the state proceeding implicates important state interests, and that the state proceeding affords President Trump plenty of opportunities to raise his constitutional claims. The court rejected the President's claims that the state process was in bad faith or merely designed to harass him, and that the case raised extraordinary circumstances.
As to the underlying merits, which the court addressed "so as to obviate a remand" on President Trump's motion for a preliminary injunction if the Second Circuit overrules the abstention holding, the court flatly rejected the President's claim of absolute presidential immunity from all state criminal processes. The court said that it "cannot square a vision of presidential immunity that would place the President above the law with the text of the Constitution, the historical record, the relevant case law, or even the DOJ Memos on which the President relies most heavily for support." The court, citing Clinton v. Jones, said that the Supreme Court would likely reject the President's absolute, categorical approach to immunity in favor of a functional approach that "take[s] account of various circumstances concerning the appropriateness of a claim of presidential immunity from judicial process relating to a criminal proceeding" and to balance the competing interests in working out the immunity question.
The case now goes to the Second Circuit on an expedited basis. Again: the Second Circuit stayed the district court's ruling, which means that President Trump's federal case challenging the state subpoena is still alive. Whatever happens at the Second Circuit, this case will almost surely go to the Supreme Court.
Sunday, October 6, 2019
The United States Supreme Courts 2019 Term begins with oral arguments in three cases that will impact LGBTQ equality. To be clear, the Court is not considering constitutional law issues. Instead all three cases involve statutory interpretation of the prohibition of discrimination "because of sex" in Title VII of the 1964 Civil Rights Act, 42 U.S.C. §2000e et. seq.
The two consolidated cases both involve sexual orientation discrimination. In Altitude Express v. Zarda, the Second Circuit en banc held that sexual orientation discrimination constituted a form of discrimination "because of sex" under Title VII, overruling previous Second Circuit decisions, and provoking the dissent of four judges. Reaching the opposite conclusion, the Eleventh Circuit in Bostock v. Clayton County Board of Commissioners, clung to its previous precedent, first in an unpublished opinion affirming the dismissal of the complaint, and then in a denial of rehearing en banc requested by a member of the court, with two judges issuing a dissenting opinion.
In deciding whether or not sexual orientation discrimination is included in Title VII's "because of sex" language, the primary precedent for the Court is its unanimous opinion in Oncale v. Sundowner Offshore Services (1998), authored by the late Justice Scalia. The claim involved same-sex sexual harassment and the Court held:
We see no justification in the statutory language or our precedents for a categorical rule excluding same-sex harassment claims from the coverage of Title VII. As some courts have observed, male-on-male sexual harassment in the workplace was assuredly not the principal evil Congress was concerned with when it enacted Title VII. But statutory prohibitions often go beyond the principal evil to cover reasonably comparable evils, and it is ultimately the provisions of our laws rather than the principal concerns of our legislators by which we are governed. Title VII prohibits “discriminat[ion] . . . because of . . . sex” in the “terms” or “conditions” of employment. Our holding that this includes sexual harassment must extend to sexual harassment of any kind that meets the statutory requirements.
The third case LGBTQ Title VII case to be considered by the Court in the Term's opening days is R.G. & G.R. Harris Funeral Homes v. EEOC. The Sixth Circuit, in its unanimous panel opinion reversing the district judge, found that discrimination "against employees, either because of their failure to conform to sex stereotypes or their transgender and transitioning status, is illegal under Title VII" under the "because of sex" discrimination prohibition. The court found that the "Funeral Home fired Stephens because she refused to abide by her employer’s stereotypical conception of her sex" and that the religious claim under the Religious Freedom Restoration Act, RFRA, 42 U.S.C. § 2000bb–1, raised by the funeral home's owner failed because "Title VII here is the least restrictive means of furthering its compelling interest in combating and eradicating sex discrimination."
While the Court has not previously decided a case of transgender discrimination under Title VII, the Court's opinion in Price Waterhouse v. Hopkins (1989) held that sex-stereotyping is included within the prohibition of discrimination "because of sex" under Title VII. Hopkins is a fractured opinion, and none of the Justices who decided the case remain on the Court.
These statutory interpretation cases will provide an indication of the Court's views on LGBTQ equality, a subject last at the Court in the closely-divided same-sex case Obergefell v. Hodges (2015), decided under the Fourteenth Amendment. Further, these three Title VII cases may illuminate how the Court is considering precedent.
Finally, no matter how the Court decides these Title VII issues, Congress retains ultimately authority. In 2019, the House of Representatives passed "The Equality Act" which would amend the 1964 Civil Rights Act to include prohibitions of discrimination on the basis of sexual orientation and gender identity. The Senate has yet to take up this legislation.
October 6, 2019 in Courts and Judging, Current Affairs, Fourteenth Amendment, Free Exercise Clause, Fundamental Rights, Gender, Religion, Sexual Orientation, Sexuality, Supreme Court (US) | Permalink | Comments (0)
Tuesday, September 24, 2019
In its opinion and judgment in R. (on behalf of Miller) v. The Prime Minister and Cherry and others v. Advocate General for Scotland, the U.K. Supreme Court considered whether "the advice given by the Prime Minister to Her Majesty the Queen on 27th or 28th August 2019 that Parliament should be prorogued from a date between 9th and 12th September until 14th October was lawful." The Court's eleven Justices unanimously held it was not.
The prorogation or suspension of Parliament, as we discussed here and which the opinion discusses is the situation in which the Crown suspends Parliament, having both immediate and wider constitutional effects. After the Court's discussion of the events leading up to the prorogation, the Court articulated the issues:
1) Is the question of whether the Prime Minister’s advice to the Queen was lawful justiciable in a court of law?
(2) If it is, by what standard is its lawfulness to be judged?
(3) By that standard, was it lawful?
(4) If it was not, what remedy should the court grant?
The Court first held that the matter was justiciable: "although the courts cannot decide political questions, the fact that a legal dispute concerns the conduct of politicians, or arises from a matter of political controversy, has never been sufficient reason for the courts to refuse to consider it." However, the Court reasoned that to resolve justiciability, the court must "determine whether the present case requires it to determine where a legal limit lies in relation to the power to prorogue Parliament, and whether the Prime Minister’s advice trespassed beyond that limit, or whether the present case concerns the lawfulness of a particular exercise of the power within its legal limits." This question is "closely related to the identification of the standard by reference to which the lawfulness of the Prime Minister’s advice is to be judged."
Turning to the standard, the Court discussed the U.K.'s "unwritten Constitution;"
Although the United Kingdom does not have a single document entitled “The Constitution”, it nevertheless possesses a Constitution, established over the course of our history by common law, statutes, conventions and practice. Since it has not been codified,it has developed pragmatically, and remains sufficiently flexible to be capable of further development. Nevertheless, it includes numerous principles of law, which are enforceable by the courts in the same way as other legal principles. In giving them effect, the courts have the responsibility of upholding the values and principles of our constitution and making them effective. It is their particular responsibility to determine the legal limits of the powers conferred on each branch of government, and to decide whether any exercise of power has transgressed those limits. The courts cannot shirk that responsibility merely on the ground that the question raised is political in tone or context.
The standard — the relevant limit upon the power to prorogue — was expressed by the Court as:
that a decision to prorogue Parliament (or to advise the monarch to prorogue Parliament) will be unlawful if the prorogation has the effect of frustrating or preventing, without reasonable justification, the ability of Parliament to carry out its constitutional functions as a legislature and as the body responsible for the supervision of the executive. In such a situation, the court will intervene if the effect is sufficiently serious to justify such an exceptional course.
Under that standard, it was clear that "the Prime Minister’s action had the effect of frustrating or preventing the constitutional role of Parliament in holding the Government to account," and this "was not a normal prorogation in the run-up to a Queen’s Speech." While the Court stated it would not inquire into the Prime Minister's motive, there must be a reason for his actions:
It is impossible for us to conclude, on the evidence which has been put before us, that there was any reason - let alone a good reason - to advise Her Majesty to prorogue Parliament for five weeks, from 9th or 12th September until 14th October. We cannot speculate, in the absence of further evidence, upon what such reasons might have been. It follows that the decision was unlawful.
As for remedy, the unlawfulness of the prorogation means that "Parliament has not been prorogued," so that "the Speaker of the House of Commons and the Lord Speaker can take immediate steps to enable each House to meet as soon as possible to decide upon a way forward."
The Court's opinion is a mere 25 pages, written in an accessible style despite its details and discussions of Seventeenth Century practices. ("The 17th century was a period of turmoil over the relationship between the Stuart kings and Parliament, which culminated in civil war. That political controversy did not deter the courts from holding, in the Case of Proclamations (1611) 12 Co Rep 74, that an attempt to alter the law of the land by the use of the Crown’s prerogative powers was unlawful." ).
There is also a four page judgment summary.
New York DA Cyrus Vance, Jr., yesterday filed a motion to dismiss President Trump's federal lawsuit that seeks to shut down the state grand jury proceeding.
Recall that the state grand jury issued a subpoena to Mazurs USA for financial and tax records of a number of New York entities and individuals, including President Trump. President Trump then sued in federal court to halt the state process, arguing that he is absolutely immune from any criminal process. (His argument wasn't limited to just state criminal process or any criminal prosecution; instead, he argued that he is absolutely immune from any criminal process.)
Vance argues that 28 U.S.C. sec. 2283 and Younger abstention compel the federal court to dismiss the case. Section 2283 provides that "[a] court of the United States may not grant an injunction to stay proceedings in a State court except as expressly authorized by Act of Congress, or where necessary in aid of its jurisdiction, or to protect or effectuate its judgments." Similarly, Younger abstention requires a federal court to abstain from interfering in certain state-court proceedings.
Vance argues that the federal court should abstain from ruling on President Trump's constitutional claims until the state courts have a chance to do so. He says that there's no "special circumstances suggesting bad faith, harassment or irreparable injury that is both serious and immediate" that would justify an exception to the general abstention principle.
Moreover, Vance argues that President Trump failed to show irreparable harm and is wrong on the merits. As to harm, Vance says that subpoenaed records would be destroyed if the courts later rule the Mazurs subpoena invalid, and that the President's claims that he'd be distracted by the state criminal process is belied by the President's handling of other criminal processes. As to the merits--the President's sweeping claim of absolute immunity from any criminal process--Vance writes, "As the President's own papers make plain, no authority exists to support such a sweeping claim of immunity, which makes a showing of likelihood of success on the merits impossible."
Monday, September 23, 2019
In her Order in Galicia v. Trump, Judge Doris Gonzalez has ordered that President Trump appear for a videotaped deposition prior to trial to provide testimony for use at trial in this tort case.
The plaintiffs brought an action against Donald Trump, Donald Trump for President, the Trump Organization, and Keith Schiller for events in September 2015 when plaintiffs were protesting Trump's views as he was beginning his campaign for President. Plaintiffs allege that "several of Defendant Trump's bodyguards, including his confidant and chief security officer Keith Schiller, stormed Plaintiffs, pushed some of them down the sidewalk, using excessive force grabbed the signs from Plaintiffs and converted them to their own use." The case is proceeding to trial on claims of assault and battery, and against Donald Trump on a theory of respondeat superior. In 2016, a state judge granted a protective order against a motion to compel Trump's deposition before trial. When the case became ready for trial, plaintiffs issued a subpoena ad testificandum to compel Trump's testimony; Trump moved to quash, arguing that under Clinton v. Jones (1997), a president can only be deposed before trial and at the White House.
Judge Gonzalez began her discussion with a resort to the framers and Marbury v. Madison:
More than 200 years ago our founders sought to escape an oppressive, tyrannical governance in which absolute power vested with a monarch. A fear of the recurrence of tyranny birthed our three-branch government adorned with checks and balances. Chief Justice John Marshall famously stated, [t]he government of the United States has been emphatically termed a government of laws, and not of men. It will certainly cease to be deserve this high appellation, if the laws furnish no remedy for the violation of a vested legal right.” Marbury v. Madison, 1 Cranch 137 (1803). Put more plainly, no government official, including the Executive, is above the law.
Yet as Judge Gonzalez notes, the Court resolved the question of whether the President is absolved from legal responsibility for unofficial conduct in Clinton v. Jones. Further, the New York courts resolved the issue of whether the state courts could exercise jurisdiction over the President in Zervos v. Trump.
However, President Trump argued that his testimony could not be compelled for trial, but only at pretrial as some dicta in Clinton v. Jones indicated, and that in any event, the plaintiffs had waived the President's testimony by not appealing the earlier order finding a motion to compel premature. Further, Judge Gonzalez distinguished a Second Circuit case relied upon by Trump that depositions of "high-ranking officials" should only occur in exceptional circumstances by noting that this was the rule in litigation involving official action rather than the unofficial pre-Presidential action at issue in this case.
Judge Gonzalez ruled that "questions of fact exist" regarding Trump's "exercise of dominion and control over his employee defendants" and ordered President Trump to "appear for a videotaped deposition prior to the trial of this matter and provide testimony for the use at trial."
Friday, September 13, 2019
The Second Circuit ruled today in CREW v. Trump that a case alleging that the President violated the Foreign and Domestic Emoluments Clauses can move forward. The ruling rejects the President's arguments that the plaintiffs lack standing and that they fall outside the zones of interests of the Emoluments Clauses. It also rejects the district court's holdings that the case isn't ripe, and that it raises a nonjusticiable political question.
The ruling means that the case can go forward. It says nothing on the merits--whether President Trump actually violated the Emoluments Clauses. Still, it's a significant victory for the plaintiffs. It also splits with the Fourth Circuit, which dismissed an emoluments case in July for lack of standing.
The plaintiffs in the case, Eric Goode, a restauranteur and hotelier, and the Restaurant Opportunities Center United ("ROC"), a non-partisan, member-based organization of restaurants and restaurant workers, alleged that President Trump's properties siphon off business from the plaintiffs' operations when foreign and domestic government entities choose the President's properties over the plaintiffs' in order to enrich the President and gain his favor--all in violation of the Foreign and Domestic Emoluments Clauses. In particular, the plaintiffs allege (1) that they compete with the President's properties, (2) that the President implicitly solicits the patronage of government officials and acknowledged that, in making decisions, he favors governments that patronize his businesses, and (3) that governments have taken note of this, and been influenced by it, in deciding which properties to patronize.
The district court dismissed the case, holding that the plaintiffs lacked standing, that they fall outside the zone of interests of the Emoluments Clauses, that their claims aren't ripe, and that the case raises nonjusticiable political questions.
The Second Circuit reversed. As to standing, the court ruled that the plaintiffs sufficiently pleaded injury, causation, and redressability under competitor-standing theory: "[t]he complaint, supported by expert declarations, alleges that . . . unlawful market conduct skew has caused Plaintiffs economic harm in the form of lost patronage from government entities, and that such harm will continue in the future"; "[t]he complaint adequately pleads a competitive injury of lost patronage directly traceable to the fact that the President's allegedly illegal conduct induces government patrons of the hospitality industry . . . to patronize Trump establishments in favor to Plaintiffs' establishments"; and "[b]ecause Plaintiffs have successfully alleged a plausible likelihood that President Trump's conduct caused their injuries, and the injury is ongoing, it logically follows that [injunctive relief] would redress their injury--at least to some extent, which is all that Article III requires."
As to the zone of interests, the court first held that the Supreme Court recently ruled that zone of interests is not a test of Article III standing. But the court said that in any event, the plaintiffs fell within it: "Without exception, the Court has held that a plaintiff who sues to enforce a law that limits the activity of a competitor satisfies the zone of interests test even though the limiting law was not motivated by an intention to protect entities such as plaintiffs from competition."
As to the political question issue (which the President did not argue at the Second Circuit), the court said that the district court erred in holding that under the Emoluments Clauses "Congress is the appropriate body to determine whether, and to what extent, [the President's] conduct unlawfully infringes on that power." Instead, the court held that under the plain language of the Emoluments Clauses, if Congress doesn't consent to an emolument, it's a violation. And it's the role of the courts to judge just such violations.
As to ripeness (which the President also did not argue), the court said that the district court erred in relying on the prospect of future congressional action and on the reasoning of Justice Powell's concurrence in Goldwater v. Carter. The court held that this case is distinguishable: Goldwater involved an inter-branch dispute over inter-branch powers; but this case simply involves an allegation that the President's private conduct is illegal. "There is no claim on the part of the Congress, or any of its members, that the President's private conduct of his business affairs usurps power allocated to Congress by the Constitution."
Judge Walker dissented, arguing that the plaintiffs lacked standing, consistent with the Fourth Circuit's approach.
Sunday, August 18, 2019
The Ninth Circuit on Friday declined to stay a district court injunction against the Administration's "Asylum Eligibility and Procedural Modifications" rule, but limited the injunction to the Ninth Circuit.
The ruling allows the district court to develop a more complete record that would support a nationwide injunction. But at the same time, the motions panel also set a briefing schedule and put the case on the December 2019 argument calendar.
In all, this means (1) that the administration cannot enforce its new asylum rule in the Ninth Circuit (but it can enforce it elsewhere, at least for now), (2) that the district court can nevertheless develop a record that would support a nationwide preliminary injunction, and issue such an injunction, even as the appeal is pending at the Ninth Circuit, and (3) the case will go to the Ninth Circuit on the merits later this year.
The court started by noting that the Administration has "not made the required 'strong showing' that they are likely to succeed" on its claim that the district court erroneously concluded that the asylum policy likely violated the Administrative Procedure Act. It went on to say, though, that the record before the district court didn't justify a nationwide injunction:
Here, the district court failed to discuss whether a nationwide injunction is necessary to remedy Plaintiffs' alleged harm. Instead, in conclusory fashion, the district courts stated that nationwide relief is warranted simply because district courts have the authority to impose such relief in some cases and because such relief has been applied in the immigration context. The district court clearly erred by failing to consider whether nationwide relief is necessary to remedy Plaintiffs' alleged harms. And, based on the limited record before us, we do not believe a nationwide injunction is justified.
Judge Tashima dissented, arguing that the majority impermissibly parsed the district court record to reconsider the nationwide injunction, and that the briefing and argument order is in tension with the district court potentially developing a record that permits a nationwide injunction.
The order comes as the practice of issuing nationwide injunctions, in general, is under increased scrutiny. The Ninth Circuit's approach here is cautious with regard to a nationwide injunction, but at the same time it leaves open plenty of room for the district court to develop a more complete record that would support such an injunction. And the panel held no punches when it said that the Administration hasn't made the "strong showing" required to stay the district court's injunction.
Thursday, August 15, 2019
Theatrical Performance featuring readings from
Wednesday, August 14, 2019
Check out Josh Blackman and Seth Barrett Tillman's piece at The Volokh Conspiracy on why the federal courts lack equitable jurisdiction in the border wall funding case and the emoluments challenge. In short: The plaintiffs don't state a cause of action (that would have been available under the equitable jurisdiction of the High Court of Chancery in England in 1789).
Blackman and Tillman elaborate on the argument (and others) in this amicus brief, in the Fourth Circuit emoluments case.
Here's from Volokh:
In order to invoke a federal court's equitable jurisdiction, Plaintiffs cannot simply assert in a conclusory fashion that the conduct of federal officers is ultra vires, and, on that basis, seek equitable relief. "Equity" cannot be used as a magic talisman to transform the plaintiffs into private attorneys general who can sue the government merely for acting illegally. Rather, in order to invoke the equitable jurisdiction of the federal courts, plaintiffs must put forward a prima facie equitable cause of action.
A plaintiff's mere request for equitable or injunctive relief does not invoke a federal court's equitable jurisdiction.
[Otherwise, plaintiffs' approach] would open the courthouse door to every plaintiff with Article III standing, who asserts that a federal official engaged in illegal conduct.
Tuesday, August 13, 2019
The D.C. Circuit ruled today in Almaqrami v. Pompeo that plaintiffs' claim against the government for denying them "diversity visas" was not moot, even though the plaintiffs are from countries covered by President Trump's travel ban, upheld under Trump v. Hawaii. The ruling sends the case back to the district court for a decision on the merits. By the plaintiffs' own reckoning, however, even a win (alone) wouldn't guarantee their admittance to the United States.
The plaintiffs, nationals of Iran and Yemen, won the 2017 diversity visa lottery. But they were denied visas pursuant to a State Department Guidance Memo, instructing consular officers about how to evaluate diversity visa applications in light of Trump v. Int'l Refugee Assistance Project (the Court's earlier ruling allowing President Trump's executive order (2) to take effect while the Court considered appeals of the preliminary injunctions against the travel ban). They sued, arguing that the relevant section of the Immigration and Nationality Act authorized the President to restrict only entry, not visas, and that their denial violated the INA provision that bans discrimination by nationality.
Just before the end of Fiscal Year 2017, the district court ordered State to "hold those [unused diversity] visa numbers to process [p]laintiffs' visa applications in the event the Supreme Court finds [EO-2] to be unlawful." (Recall that the President replaced EO-2 with the (third) version of the travel ban that ultimately went to the Court.)
After the Court upheld the travel ban in Trump v. Hawaii, the government moved to dismiss the case as moot, arguing that EO-2 and the guidance memo under which the consular officers denied the plaintiffs visas were now expired, and that the district court's order was conditioned on the Court ruling that EO-2 was unlawful (which didn't happen).
The district court accepted this argument and dismissed the case as moot, but the D.C. Circuit reversed.
The D.C. Circuit ruled that because the district court issued its order before the end of Fiscal Year 2017, it could still grant relief to the plaintiffs (by ordering State to grant the visas). As to that language that seems to condition relief on the Court striking the travel ban (which of course it didn't), the D.C. Circuit said that the district court's order could be read to mean (1) that State must hold unused diversity visas to enable a later court judgment and (2) that a specific judgment would issue if the Court ruled a certain way. (1) allows the district court to order State to issue the visas; (2) would've required it.
Moreover, the court said that the plaintiffs could still get the relief they sought. That's because the district court might agree with them that the travel ban only applied to entry, not visas, and that the INA prohibits discrimination in issuing visas by nationality--even under Trump v. Hawaii. The court didn't opine on those questions, however; instead, it sent the case back to the district court for a ruling on them.
A win in the district court (or on appeal) could mean that the plaintiffs get their visas, and even get consideration under exceptions to the travel ban. But actual entry will require more: a decision that they meet an exception to the travel ban.
Thursday, August 1, 2019
Judge Christopher R. Cooper (D.D.C.) dismissed as moot a case by Atlas Brew Works arguing that the government's inability to approve its beer label during the government shutdown earlier this year violated its First Amendment right to free speech. In particular, Judge Cooper ruled that Atlas's claim didn't meet the mootness exception for cases that are "capable of repetition but evading review."
The case, Atlas Brew Works v. Barr, arose during the government shutdown, when, because of a lack of appropriated funds, the Alcohol and Tobacco Tax and Trade Bureau (in Treasury) couldn't approve Atlas's pending application for a label, as required by the Federal Alcohol Administration Act. (The FAA requires Bureau approval of a label before a brewer can distribute its beer in interstate commerce. It provides criminal penalties for violators.) Atlas filed suit, arguing that the government's failure to approve its pending label infringed on its right to free speech, because the lack of approval meant that it couldn't legally distribute its seasonal beer, which, without an approved label, would go stale. (Atlas put it this way: "[i]t cannot be denied the right to speak for lack of meeting an impossible condition.") Atlas sought a temporary restraining order and preliminary injunction preventing the Justice Department from enforcing the FAA's criminal sanctions against it.
Once the shutdown ended, the government moved to dismiss the case as moot. Yesterday, the court agreed.
The court ruled first that Atlas's claim couldn't survive as a challenge to the government's policy, because, in short, there's no ongoing policy behind the shutdown that would infringe on Atlas's free speech.
The court ruled next that Atlas's claim was not capable of repetition but evading review. Judge Cooper explained:
To recap the boxes that must be checked for this dispute to recur: a lapse in appropriations must happen; the lapse must affect the Treasury Department; the lapse must last long enough to actually cause a shutdown; Treasury must respond to the shutdown by shuttering the [beer-label approval process under the FAA]; and Atlas must have a [label] application pending at the time the shutdown begins or file one shortly thereafter. In the Court's view, the combination of these contingencies takes this case beyond the limits of the capable-of-repetition exception to mootness.
Wednesday, July 10, 2019
The Fourth Circuit ruled that Maryland and D.C. lacked standing to pursue their case against President Trump that he's violating the Foreign and Domestic Emoluments Clauses. The decision reverses a district court ruling and dismisses the case.
The ruling means that this case goes away. And while the court only ruled on standing, it also noted that the plaintiffs faced plenty of other obstacles in bringing an emoluments case against the president--everything from the justiciability of emoluments claims to presidential immunity. In other words, even if there's some plaintiff with standing to bring this kind of suit, they'll face serious headwinds for other constitutional reasons.
The ruling is especially notable because it came on the president's motion for mandamus. Mandamus is an extraordinary form of relief, and the standard is quite high. Still, the court ruled that the president met it, underscoring just how wrong the Fourth Circuit thought the district court's ruling was.
The Fourth Circuit held that the plaintiffs lacked standing based on harm to their proprietary interests in their own convention centers when the Trump International Hotel siphons off business from them. According to the court, one problem was that the plaintiffs couldn't show that any violation of the Emoluments Clauses caused their harm:
To begin, the District and Maryland's theory of proprietary harm hinges on the conclusion that government customers are patronizing the Hotel because the Hotel distributes profits or dividends to the President, rather than due to any of the Hotel's other characteristics. Such a conclusion, however, requires speculation into the subjective motives of independent actors who are not before the court, undermining a finding of causation.
Another problem was redressability--that the plaintiffs' requested relief wouldn't redress their harm:
And, even if government officials were patronizing the Hotel to curry the President's favor, there is no reason to conclude that they would cease doing so were the President enjoined from receiving income from the Hotel. After all, the Hotel would still be publicly associated with the President, would still bear his name, and would still financially benefit members of his family.
The court next rejected the plaintiffs' claims of parens patriae standing to protect the economic interests of their citizens. The court said that these claims ran into exactly the same problems that the plaintiffs' own proprietary-harm claims ran into--no causation, no redressability.
Finally, the court rejected the plaintiffs' claim that they suffered an injury to their quasi-sovereign interests--that "[t]heir injury is the violation of their constitutionally protected interest in avoiding entirely pressure to compete with others for the President's favor by giving him money or other valuable dispensations" and that "it is the opportunity for favoritism that disrupts the balance of power in the federal system and injures the District and Maryland." The court said simply that "[t]his alleged harm amounts to little more than a general interest in having the law followed"--not enough for standing.
Thursday, June 27, 2019
In its highly anticipated opinion 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 Court held that given the "unusual circumstances" of the case, the matter should be remanded to the agency to provide a "reasoned explanation" for its decision pursuant to the Administrative Procedure Act (APA), thus affirming the district court on this point.
Chief Justice Roberts's opinion for the Court is relatively brief — 29 pages — but the brevity is undercut by the shifting alliances within the opinion's sections and the additional 58 pages of opinions concurring in part and dissenting in part.
Recall the basic issue from oral argument: whether the challengers had standing, the actual enumeration requirements in the Constitution, Art. I, § 2, cl. 3, and Amend. XIV, § 2, and the nonconstitutional issues centering on the Administrative Procedure Act. The equal protection argument receded into the background on appeal, but has re-emerged in other proceedings.
After explaining the facts and procedural history, including the rather unusual question of whether the Secretary of Commerce, Wilbur Ross, should be deposed, the Court unanimously held the challengers had standing, rejecting the government's contrary contention: "we are satisfied that, in these circumstances, respondents have met their burden of showing that third parties will likely react in predictable ways to the citizenship question, even if they do so unlawfully and despite the requirement that the Government keep individual answers confidential."
A majority of the Court, Roberts joined by Thomas, Alito, Gorsuch, and Kavanaugh — held that the Enumeration Clause did not provide a basis to set aside the determination of Wilbur Ross. The majority held that the Constitution vests Congress with virtually unlimited discretion to conduct the census, and that Congress has delegated this broad authority to the Secretary of Commerce. The majority stated that "history matters" so that "early understanding and long practice" of inquiring about citizenship on the census should control.
A notably different but numerically larger — 7 Justices — rejected the government's contention that the discretion given by Congress to the Secretary of Commerce is so broad as to be unreviewable. There is "law to apply" and the statute provides criteria for meaningful review. Only Justices Alito and Gorsuch disagreed with this conclusion.
And yet another majority, the same majority as the holding for no claim under the Enumeration Clause — Roberts was joined by Thomas, Alito, Gorsuch, and Kavanaugh — rejected the claim "at the heart of this suit" that Secretary Ross "abused his discretion in deciding to reinstate the citizenship question." Essentially, this majority held that because the statute gives the Secretary to make policy choices and "the evidence before the Secretary hardly led ineluctably to just one reasonable course of action."
That same majority rejected the claim of violations of the APA by Secretary Ross in the collection of information and data, and even if he did so, it was harmless.
Finally, the Chief Justice's opinion for the Court — this time with a majority of Justices Ginsburg, Breyer, Sotomayor, and Kagan, considered the district judge's conclusion that the decision of the Secretary of Commerce, Wilbur Ross, rested on a pretextual basis. The Court's opinion reviewed the evidence presented to the district court:
That evidence showed that the Secretary was determined to reinstate a citizenship question from the time he entered office; instructed his staff to make it happen; waited while Commerce officials explored whether another agency would request census-based citizenship data; subsequently contacted the Attorney General himself to ask if DOJ would make the request; and adopted the Voting Rights Act rationale late in the process. In the District Court’s view, this evidence established that the Secretary had made up his mind to reinstate a citizenship question “well before” receiving DOJ’s request, and did so for reasons unknown but unrelated to the VRA.
After considering other evidence, the Court concluded:
Altogether, the evidence tells a story that does not match the explanation the Secretary gave for his decision. In the Secretary’s telling, Commerce was simply acting on a routine data request from another agency. Yet the materials before us indicate that Commerce went to great lengths to elicit the request from DOJ (or any other willing agency). And unlike a typical case in which an agency may have both stated and unstated reasons for a decision, here the VRA enforcement rationale—the sole stated reason—seems to have been contrived.
We are presented, in other words, with an explanation for agency action that is incongruent with what the record reveals about the agency’s priorities and decisionmaking process. It is rare to review a record as extensive as the one before us when evaluating informal agency action— and it should be. But having done so for the sufficient reasons we have explained, we cannot ignore the disconnect between the decision made and the explanation given. Our review is deferential, but we are “not required to exhibit a naiveté from which ordinary citizens are free.” United States v. Stanchich, 550 F. 2d 1294, 1300 (CA2 1977) (Friendly, J.). The reasoned explanation requirement of administrative law, after all, is meant to ensure that agencies offer genuine justifications for important decisions, reasons that can be scrutinized by courts and the interested public. Accepting contrived reasons would defeat the purpose of the enterprise. If judicial review is to be more than an empty ritual, it must demand something better than the explanation offered for the action taken in this case.
In these unusual circumstances, the District Court was warranted in remanding to the agency . . . .
Thus the Court remanded the decision to the agency for further explanation. To be sure, this conclusion and section seems inconsistent with the "abuse of discretion" section finding no "abuse of discretion." And notably, Chief Justice Roberts is the only Justice supporting both of those conclusions.
Also notably, the Court's opinion does not comment on any of the recently revealed evidence or new proceedings - updates shortly.
Wednesday, June 26, 2019
In a closely watched administrative law and separation-of-powers case, Kisor v. Wilkie, the Court today declined to overrule Auer v. Robbins, which says that courts should defer to agencies' interpretations of their own ambiguous regulations. At the same time, however, the Court sharply limited its application. As a result, Auer deference hangs on, but in a more (perhaps much more) limited form.
And although the case didn't raise Chevron deference (which says that courts defer to agencies' interpretation of applicable federal law), signs suggest that it's next on the chopping block.
The Court split sharply over whether to overrule Auer. Justice Kagan, joined by Chief Justice Roberts and Justices Ginsburg, Breyer, and Sotomayor on this point, wrote to keep it in place, but limit it. Justice Gorsuch, joined by Justices Thomas, Alito, and Kavanaugh, wrote to overrule it.
Writing for the Court, Justice Kagan wrote that Auer deference depends on a preceding two-step, thus limiting it in future applications. "First and foremost, a court should not afford Auer deference unless the regulation is genuinely ambiguous. If uncertain does not exist, there is no plausible reason for deference." Next, "[i]f genuine ambiguity remains, moreover, the agency's reading must still be 'reasonable.' In other words, it must come within the zone of ambiguity the court has identified after employing all its interpretive tools. . . ." Even then,
[s]till, we are not done--for not every reasonable agency reading of a genuinely ambiguous rule should receive Auer deference. We have recognized in applying Auer that a court must make an independent inquiry into whether the character and context of the agency interpretation entitles it to controlling weight. . . .
To begin with, the regulatory interpretation must be one actually made by the agency. . . .
Next, the agency's interpretation must in some way implicate its substantive expertise. . . .
Finally, an agency's reading of a rule must reflect "fair and considered judgment" to receive Auer deference. . . .
The Court also held that under stare decisis principles, Auer should stay in place.
Chief Justice Roberts joined much, but not all, of the Court's opinion (the portions specifying the limits of Auer deference and upholding Auer under stare decisis) and wrote separately "to suggest that the distance between the majority and JUSTICE GORSUCH is not as great as it may initially appear." Importantly, he also wrote that nothing in today's ruling says anything about the continued validity of Chevron deference: "Issues surrounding judicial deference to agency interpretations of their own regulations are distinct from those raised in connection with judicial deference to agency interpretations of statutes enacted by Congress. [Chevron.]"
Justice Gorsuch, joined by Justices Alito, Thomas, and Kavanaugh, would have overruled Auer. (Indeed, Justice Gorssuch read the majority's ruling to more-or-less do that.)
The four conventional progressives differed sharply from four conventional conservatives (minus Chief Justice Roberts) over the history and reasons for Auer deference, whether Auer deference violates the Administrative Procedure Act, and whether it violates the separation of powers. (On this last point, four conservatives (again, minus Chief Justice Roberts) argued that Auer deference meant that executive agencies were exercising the judicial power, in violation of the separation of powers. The four progressives disagreed.) This means that there's 4-4 split on the Court over these questions, with Chief Justice Roberts declining to join either side (but nevertheless voting to uphold Auer under stare decisis).
Justice Kavanaugh, joined by Justice Alito, wrote separately to agree with Chief Justice Roberts that "the distance between the majority and JUSTICE GORSUCH is not as great as it may initially appear," and that this case doesn't touch on Chevron deference.
Monday, June 24, 2019
The Supreme Court ruled today that a federal criminal law that enhances criminal penalties for using, carrying, or possessing a firearm in connection with any federal "crime of violence or drug trafficking crime" was unconstitutionally vague. The ruling strikes the law.
The case, United States v. Davis, tested the federal law that enhances penalties (over and above a defendant's base conviction) for using, carrying, or possessing a firearm "in furtherance of" any federal "crime of violence or drug trafficking crime." The statute then defines "crime of violence" in two subparts, an "elements clause" and a "residual clause." Under the act, a crime of violence is "an offense that is a felony" and
(A) has as an element the use, the attempted use, or threatened use of physical force against the person or property of another, or
(B) that by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.
The Court ruled the residual clause, (B), unconstitutionally vague.
Justice Gorsuch wrote for the Court, joined by Justices Ginsburg, Breyer, Sotomayor, and Kagan. He started by noting that the vagueness doctrine is designed to protect due process and the separation of powers:
In our constitutional order, a vague law is no law at all. Only the people's elected representatives in Congress have the power to write new federal criminal laws. And when Congress exercises that power, it has to write statutes that give ordinary people fair warning about what the law demands of them. Vague laws transgress both of those constitutional requirements. They hand off the legislature's responsibility for defining criminal behavior to unelected prosecutors and judges, and they leave people with no sure way to know what consequences will attach to their conduct. When Congress passes a vague law, the role of the courts under our Constitution is not to fashion a new, clearer law to take its place, but to treat the law as a nullity and invite Congress to try again.
Justice Gorsuch compared the residual clause to similar language that the Court ruled unconstitutionally vague in Johnson v. United States (defining "violent felony" as a "serious potential risk of physical injury to another") and Sessions v. Dimaya (defining "crimes of violence" for many federal statutes). He rejected the government's argument that the courts should interpret the residual clause on a case-by-case basis (to determine in any individual case whether the crime fit the definition), concluding that reading the act's text, context, and history, the act "simply cannot support the government's newly minted case-specific theory." He also rejected the government's constitutional avoidance argument, "doubt[ing] [that] the canon could play a proper role in this case even if the government's reading were 'possible.'" That's because "no one before us has identified a case in which this Court has invoked the canon to expand the reach of a criminal statute in order to save it."
Justice Kavanaugh dissented, joined by Chief Justice Roberts and Justice Thomas and Alito. Justice Kavanaugh distinguished Johnson and Dimaya, arguing that "[t]hose cases involved statutes that imposed additional penalties based on prior convictions," while "[t]his case involves a statute that focuses on the defendant's current conduct during the charged crime." "The statute here operates entirely in the present[, and] [u]nder our precedents, this statute therefore is not unconstitutionally vague." He also pointed to the statute's impact on crime rates, and many years of application of it:
[One] cannot dismiss the effects of state and federal laws that impose steep punishments on those who commit violence crimes with firearms.
Yet today, after 33 years and tens of thousands of federal prosecutions, the Court suddenly finds a key provision of Section 924(c) to be unconstitutional because it is supposedly too vague. That is a surprising conclusion for the Court to reach about a federal law that has been applied so often for so long with so little problem. The Court's decision today will make it harder to prosecute violent gun crimes in the future. The Court's decision also will likely mean that thousands of inmates who committed violent gun crimes will be released far earlier than Congress specified when enacting Section 924(c). The inmates who will be released early are not nonviolent offenders. They are not drug offenders. They are offenders who committed violent crimes with firearms, often brutally violent crimes.
A decision to strike down a 33-year-old, often-prosecuted federal criminal law because it is all of a sudden unconstitutionally vague is an extraordinary event in this Court. The Constitution's separation of powers authorizes this Court to declare Acts of Congress unconstitutional. That is an awesome power. We exercise that power of judicial review in justiciable cases to, among other things, ensure that Congress acts within constitutional limits and abides by the separation of powers. But when we overstep our role in the name of enforcing limits on Congress, we do not uphold the separation of powers, we transgress the separation of powers.
Chief Justice Roberts did not join the portion of Justice Kavanaugh's dissent that argues that the statute is saved under the unconstitutional avoidance canon.
June 24, 2019 in Cases and Case Materials, Congressional Authority, Courts and Judging, Due Process (Substantive), Executive Authority, News, Opinion Analysis, Separation of Powers | Permalink | Comments (0)
The Supreme Court ruled today in Food Marketing Institute v. Argus Leader Media that an industry group had standing to appeal a lower court's FOIA ruling that would have required government disclosure of information that would have harmed the group's members.
The case arose when Argus Leader Media filed a FOIA request with the USDA for the names and addresses of all retail grocery stores that participate in the national food-stamp program, SNAP, along with each store's annual SNAP redemption data from 2005 to 2010. USDA declined to provide the redemption data, citing FOIA's Exemption 4, which protects "confidential" commercial information. The district court ruled against the agency under the circuit's "substantial harm" test to determine whether information is "confidential." (Under the test, information is protected if its disclosure would create a substantial harm to the competitive position of the person or firm from whom the information was obtained (the participating grocery stores).) USDA declined to appeal, so the Food Marketing Institute stepped in to challenge the ruling.
The Court today ruled that the Institute had standing to appeal. The Court held that disclosure of the requested information would "likely cause some financial injury" to its members, and that a favorable Court ruling would redress that injury. As to Argus's claim that a judicial ruling would simply restore the government's discretion to withhold the data (and thus that redressability was speculative, not a sure thing), the Court said that "the government has represented unequivocally that, consistent with its longstanding policy and past assurances of confidentiality to retailers, it 'will not disclosure' the contested data unless to do so by the district court's order."
The Court went on to abandon the "substantial harm" test (thus lowering the bar on Exemption 4 and making it easier for an agency to withhold information under that Exemption) and to rule in favor of the Institute:
At least where commercial or financial information is both customarily and actually treated as private by its owner and provided to the government under an assurance of privacy, the information is "confidential" within the meaning of Exemption 4. Because the store-level SNAP data at issue here is confidential under that construction, the judgment of the court of appeals is reversed and the case is remanded for further proceedings consistent with this opinion.
Friday, June 21, 2019
In its opinion in Knick v. Township of Scott, Pennsylvania, a closely divided United States Supreme Court held that a person alleging that their property has been taken by state or local governments may sue in federal court without seeking compensation from state courts, overruling Williamson County Regional Planning Comm'n v. Hamilton Bank of Johnson City (1985).
The case was reargued in February 2019 after Justice Kavanaugh joined the Court and his vote made a difference: the majority opinion by Chief Justice Roberts is joined by Justices Thomas, Alito, Gorsuch, and Kavanaugh. Justice Kagan wrote the dissenting opinion, joined by Justices Ginsburg, Breyer, and Sotomayor.
The facts involve a regulatory taking challenge by the owner of land in rural Pennsylvania which includes a "family cemetery" in the Township of Scott, which had passed an ordinance requiring cemeteries be kept open to the public in daylight hours. The land owner Rose Mary Knick challenged the ordinance as a taking in state court seeking only declarative and injunctive relief, but not "just compensation." She thereafter went to federal court, which dismissed her action under the doctrine of Williamson County, which required seeking "inverse condemnation" (and thus "just compensation") in state court, and the Third Circuit affirmed.
Writing for the five Justice majority, Chief Justice Roberts holds that the Fifth Amendment's Taking Clause is violated when the taking occurs and the property owner must be able to bring an action in federal court at that time. The effective establishment of an "exhaustion requirement" in Williamson County relegates the Takings Clause to a "poor relation" among the Bill of Rights protections, which the majority finds must be remedied by eliminating the requirement to go to state court and therefore "restoring takings claims to the full-fledged constitutional status the Framers envisioned when they included the Clause among other protections in the Bill of Rights." Chief Justice Roberts's majority opinion explains the bad precedent of Williamson County as resulting from the particular procedural facts under which the "Court may not have adequately tested the logic" of the state-litigation requirement and did not anticipate the "preclusion trap" which later resulted (in which the state court findings would be given preclusive effect by the federal court). The Court's opinion concludes that Williamson County should be overruled despite stare decisis given these "shaky foundations," adding that the state-litigation requirement has been subject to criticism and has "proved to be unworkable in practice."
Writing the dissenting opinion for four Justices, Justice Kagan argues that it is not simply Williamson County that is being overruled, but rejects longstanding understandings of the Takings Clause. For the dissenters, the text of the Takings Clause is vital: the Clause states that private property shall not be taken for public use without just compensation. Thus, unlike other constitutional rights which the majority also discusses, Kagan argues that a Takings Clause violation has two necessary elements: "First, the government must take the property. Second, it must deny the property owner just compensation." The failure of the majority to recognize the distinctive aspects of the Takings Clause is is the basis of two of Kagan's four critiques of the Court's opinion. The third critique is based on the Court's reinterpretation of precedent, including under the Williamson County rule, which Justice Kagan states is "with a theory so, well, inventive that it appears in neither the petitioner’s nor her 15-plus amici’s briefs." This is an interesting nod to the amicus briefs filed on behalf of Knick which include briefs from Washington Legal Foundation and Congressman Steve King. Lastly, under the federal Tucker Act, involving claims against the federal government seeking just compensation for a taking.
Perhaps most importantly, Justice Kagan's dissent argues that the consequence of the majority's decision will be to "channel a mass of quintessentially local cases involving complex state-law issues into federal courts." Kagan's opinion highlights the regulatory takings problems (as opposed to the less complex actual taking of property):
This case highlights the difficulty. The ultimate constitutional question here is: Did Scott Township’s cemetery ordinance “go[ ] too far” (in Justice Holmes’s phrase), so as to effect a taking of Rose Mary Knick’s property? Pennsylvania Coal Co. v. Mahon, 260 U. S. 393, 415 (1922). But to answer that question, it is first necessary to address an issue about background state law. In the Township’s view, the ordinance did little more than codify Pennsylvania common law, which (the Township says) has long required property owners to make land containing human remains open to the public. See Brief for Respondents 48; Brief for Cemetery Law Scholars as Amici Curiae 6–26. If the Township is right on that state-law question, Knick’s constitutional claim will fail: The ordinance, on that ac- count, didn’t go far at all. But Knick contends that no common law rule of that kind exists in Pennsylvania. See Reply Brief 22. And if she is right, her takings claim may yet have legs. But is she? Or is the Township? I confess: I don’t know. Nor, I would venture, do my colleagues on the federal bench. But under today’s decision, it will be the Federal District Court for the Middle District of Pennsylvania that will have to resolve this question of local cemetery law.
Justice Kagan also points out that this is the second time in a month that a five member majority [and indeed, the same five member majority] of the Court has overruled "longstanding precedent," quoting from Justice Breyer's dissent in Franchise Tax Bd. of California v. Hyatt. She writes that "the entire idea of stare decisis is that judges do not get to reverse a decision simply because they never liked it in the first place."
In its opinion in North Carolina Dept of Revenue v. Kimberley Rice Kaestner 1992 Family Trust the United States Supreme Court unanimously held that a state's taxation of a trust based solely on the residence of a beneficiary — even where the beneficiary did not receive any income — violates due process.
Recall our discussion of the view from Professors Bridget Crawford and Michelle Simon 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," and their discussion of the facts and merits of the case. They urged the Supreme Court to affirm the conclusion of the North Carolina Supreme Court that the state lacked the power to tax consistent with due process and that's what the Court did.
Justice Sotomayor's succinct 16 page opinion is a model of clarity and analysis. The Court's conclusion clearly rests on the fact that there was no actual income or entitlement to distribution of any income from the trust managed by an out-of-state trustee:
We hold that the presence of in-state beneficiaries alone does not empower a State to tax trust income that has not been distributed to the beneficiaries where the beneficiaries have no right to demand that income and are uncertain ever to receive it. In limiting our holding to the specific facts presented, we do not imply approval or disapproval of trust taxes that are premised on the residence of beneficiaries whose relationship to trust assets differs from that of the beneficiaries here.
The opinion sets out the doctrine:
The Due Process Clause provides that “[n]o State shall . . . deprive any person of life, liberty, or property, without due process of law.” The Clause “centrally concerns the fundamental fairness of governmental activity.”
In the context of state taxation, the Due Process Clause limits States to imposing only taxes that “bea[r] fiscal relation to protection, opportunities and benefits given by the state.” The power to tax is, of course, “essential to the very existence of government,” but the legitimacy of that power requires drawing a line between taxation and mere unjustified “confiscation.” That boundary turns on the “[t]he simple but controlling question . . . whether the state has given anything for which it can ask return.”
The Court applies a two-step analysis to decide if a state tax abides by the Due Process Clause. First, and most relevant here, there must be “‘some definite link, some minimum connection, between a state and the person, property or transaction it seeks to tax.’ ” Second, “the ‘income attributed to the State for tax purposes must be rationally related to “values connected with the taxing State.”’”
To determine whether a State has the requisite “minimum connection” with the object of its tax, this Court borrows from the familiar test of International Shoe Co. v. Washington (1945). A State has the power to impose a tax only when the taxed entity has “certain minimum contacts” with the State such that the tax “does not offend ‘traditional notions of fair play and substantial justice.’” The “minimum contacts” inquiry is “flexible” and focuses on the reasonableness of the government’s action. Ultimately, only those who derive “benefits and protection” from associating with a State should have obligations to the State in question.
Applying this doctrine to a trust involving an instate resident — whether beneficiary, settlor, or trustee—the Court stated that the
Due Process Clause demands attention to the particular relationship between the resident and the trust assets that the State seeks to tax. Because each individual fulfills different functions in the creation and continuation of the trust, the specific features of that relationship sufficient to sustain a tax may vary depending on whether the resident is a settlor, beneficiary, or trustee. When a tax is premised on the in- state residence of a beneficiary, the Constitution requires that the resident have some degree of possession, control, or enjoyment of the trust property or a right to receive that property before the State can tax the asset. Otherwise, the State’s relationship to the object of its tax is too attenuated to create the “minimum connection” that the Constitution requires.
Here, where the only instate resident was a beneficiary who did not receive any income and did not have a right to demand any distribution, the "minimum connection" was not sufficient.
Justice Alito wrote a brief concurring opinion, joined by Chief Justice Roberts and Justice Gorsuch, to stress that "the opinion of the Court merely applies our existing precedent and that its decision not to answer questions not presented by the facts of this case does not open for reconsideration any points resolved by our prior decisions" and the "Court's discussion of the peculiarities of this trust does not change the governing standard, nor does it alter the reasoning applied in our earlier cases."
Monday, June 17, 2019
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.
image: map of Virginia circa 1612 via