Friday, December 14, 2018

Ninth Circuit Halts Interim Rules on ACA Contraception Exemptions, but Only as to Plaintiff States

The Ninth Circuit upheld a lower court's preliminary injunction barring the government from enforcing its interim final rules allowing employers and organizations more freely to exempt themselves from the Affordable Care Act's contraception requirement. But at the same time, the court narrowed the nationwide injunction to just the plaintiff states.

The ruling is a significant victory for the plaintiffs. But it may be short-lived, as the government moves to implement final rules (the same as the interim rules, published in November) in January.

The case, California v. Azar, involves several states' (California, Delaware, Virginia, Maryland, and New York) challenge to the government's 2017 interim final rules substantially loosening the exemption standard for organizations and persons to get out from under the Affordable Care Act's contraception requirement. (Recall that the Supreme Court declined to rule on the government's prior exemption in Zubik v. Burwell.) The two IFRs categorically exempted certain religious employers and essentially made the requirement optional for anyone else who has a "sincerely held moral conviction" to contraception.

The plaintiffs argued that the IFRs violated the Administrative Procedure Act (because the agencies didn't use APA notice-and-comment procedures in implementing the IFRs), equal protection, and the Establishment Clause. The Northern District of California held that they were likely to succeed on their APA claim, and issued a nationwide injunction.

The Ninth Circuit affirmed, but limited the injunction to the plaintiff states.

The court first held that the case wasn't moot. The court said that while the agencies published final rules in November, those rules won't go into effect until January 14, 2019. In the meantime, the IFRs are in effect. And because the plaintiffs challenge the IFRs, their case isn't moot.

The court next held that the plaintiffs had standing, based on their increased costs for their already-existing contraception programs. "The states show, with reasonable probability, that the IFRs will first lead to women losing employer-sponsored contraceptive coverage, which will then result in economic harm to the states" because the states will have to fill the coverage loss through their existing free or subsidized contraceptive programs. 

As to the APA, the court ruled that the plaintiffs were likely to succeed--that HHS violated notice-and-comment rulemaking under the APA. The court held that the government's interests in eliminating regulatory uncertainty, eliminating RFRA violations, and reducing the cost of health insurance were insufficient to bypass notice-and-comment procedures. As to regulatory uncertainty, the court said it "is not by itself good cause" to bypass APA procedures. As to RFRA, the court said that "the agencies' reliance on this justification was not a reasoned decision based on findings in the record." And as to reducing health insurance costs, the court said that "[t]his is speculation unsupported by the administrative record and is not sufficient to constitute good cause." The court also said that the agencies lacked statutory authority to bypass notice-and-comment procedures. 

But the court narrowed the district court's nationwide preliminary injunction, and applied it only to the plaintiff states.

Judge Kleinfeld dissented, arguing that the plaintiffs lacked standing, because "their injury is what the Supreme Court calls 'self-inflicted,' because it arises solely from their legislative decisions to pay" for contraception-access programs.

December 14, 2018 in Cases and Case Materials, Courts and Judging, Executive Authority, Jurisdiction of Federal Courts, Mootness, News, Opinion Analysis, Standing | Permalink | Comments (0)

Thursday, December 13, 2018

Fifth Circuit Dismisses Texas's Plea for Declaratory Relief on Anti-Sanctuary Bill

The Fifth Circuit dismissed Texas's case seeking a declaration that its anti-sanctuary-city bill, SB4, did not violate the Constitution. The ruling follows its opinion earlier this year upholding most of the law.

The upshot: SB4 mostly stays on the books.

In this most recent case, Texas v. Travis County, the state sought declaratory relief that SB4 did not violate various provisions of the Constitution. (Recall that SB4 is a state law that requires jurisdictions within the state to comply with federal immigration detainer requests--and, to that extent, not be sanctuary jurisdictions.) The defendants moved to dismiss for lack of standing. But the court held that under Franchise Tax Board it lacked federal-question jurisdiction (and therefore didn't reach the standing question). Here's why (quoting Franchise Tax Board):

States are not significantly prejudiced by an inability to come to federal court for a declaratory judgment in advance of a possible injunctive suit by a person subject to federal regulation. They have a variety of means by which they can enforce their own laws in their own courts, and they do not suffer if the [constitutional questions that] such enforcement may raise are tested there.

...

[U]ntil Congress informs us otherwise, such a suit is not within the original jurisdiction of the United Sates district courts.

Because of the earlier ruling upholding SB4--and because this case merely dismisses Texas's suit for lack of jurisdiction--this case has no effect on SB4. As the court said, "[M]ost of SB4 is now in effect."

 

December 13, 2018 in Cases and Case Materials, Courts and Judging, Jurisdiction of Federal Courts, News, Opinion Analysis | Permalink | Comments (0)

Second Circuit Lets Eviction-Settlement Challenges Move Forward

The Second Circuit ruled that a case challenging New York officials' eviction-settlement practices can move forward in federal court, despite the fact that a state-court judge ratified the settlements. The ruling is a victory for victims of the practices, and says that a civil-rights defendant can't side-step federal jurisdiction by having a state-court judge merely ratify the defendant's actions.

The case, Cho v. City of New York, arose when New York officials coerced individuals and businesses into signing settlement agreements waiving various constitutional rights in order to avoid eviction. The settlement agreements were subsequently "so-ordered" by state-court judges.

Plaintiffs sued in federal court under Section 1983, but the defendants won a district court ruling dismissing the case based on the Rooker-Feldman doctrine. (That doctrine says that a federal district court can't hear an appeal of a state-court judgment.) The Second Circuit reversed.

The court ruled that the state-court judges' acts of "so-order[ing]" the settlement agreements didn't turn the plaintiffs' federal-court case into a de facto appeal (that would have been barred by Rooker-Feldman). Instead, the state-court judges merely ratified the settlements. Moreover, the plaintiffs' harm was caused by the coerced settlement agreements themselves, not by the state-court ratification. The court explained:

The instant case thus does not entail the evil Rooker-Feldman was designed to prevent. Plaintiffs are attempting to remedy an alleged injury caused when, prior to any judicial action, they were coerced to settle, not an injury that flows from a state-court judgment. By allowing an action such as this to go forward, we do not risk turning our federal district courts into quasi-appellate courts sitting in review of state-court decisions.

The ruling only allows the case to move forward in federal court; it says nothing about the merits.

December 13, 2018 in Cases and Case Materials, Courts and Judging, Jurisdiction of Federal Courts, News, Opinion Analysis | Permalink | Comments (0)

Wednesday, December 12, 2018

Court Tosses San Francisco's Challenge to Trump Walk-Back of Regulatory Guidance

Judge Jon S. Tigar (N.D. Cal.) ruled that San Francisco lacked standing to challenge the Trump Administration's rescission of administrative guidance documents related to various federal civil rights and immigration statutes. The ruling is a victory for the Trump Administration and its deregulatory agenda.

The case, San Francisco v. Whitaker, arose out of President Trump's executive order instructing agencies to identify regulatory actions that were "outdated, unnecessary, or ineffective" as candidates for repeal, modification, or replacement. Then-AG Sessions issued a memo stating that DOJ would no longer "issue guidance documents that purport to create rights or obligations binding on persons or entities outside the Executive Branch (including state, local, and tribal governments)." DOJ subsequently announced that it would rescind 25 guidance documents.

San Francisco sued to stop the DOJ from rescinding eight of those, arguing that the rescission was arbitrary and capricious under the Administrative Procedure Act. (The eight relate to the ADA, the FHA, the INA, and various fee and fine practices.)

The court ruled that San Francisco lacked standing. While the court said that San Francisco could assert procedural standing or organizational standing, it still needed to show a harm--and it didn't. The city's theory of harm varied depending on the particular guidance document, but in general the court held that it failed to show that rescission would interfere with its interest in regulation, or increase the risk of enforcement action against it, or that it failed to show a sufficiently tight connection between the rescission and any harm to the city.

The ruling means that the rescission can move forward, ultimately curbing federal regulation of these provisions. Establishing standing to challenge a roll-back on regulations is always trickier than establishing standing to challenge regulations themselves, and it's not clear if or how another plaintiff might show a harm to challenge these or other rescission documents.

December 12, 2018 in Courts and Judging, Executive Authority, Jurisdiction of Federal Courts, News, Opinion Analysis, Standing | Permalink | Comments (0)

Tuesday, December 11, 2018

District Court Dismisses FACA Challenge to Trump's Infrastructure Council

Judge Ellen Segal Huvelle (D.D.C.) dismissed a suit challenging President Trump's Infrastructure Council under the Federal Advisory Committee Act.

The ruling in Food & Water Watch v. Trump arose out of the plaintiff's FACA challenge to the Council, which was (or would have been) designed to give the President advice on infrastructure policy. The plaintiff claimed that the Council was stacked with President Trump's friends, and thus violated FACA's membership and transparency requirements.

The problem: the Council never got off the ground. For that reason, the court said it wasn't a "committee" or even a "de facto committee" under FACA, and the court therefore lacked jurisdiction.

Judge Huvelle emphasized how narrowly courts interpret FACA in order to avoid a separation-of-powers problem. Citing In re Cheney, she wrote

Congress could not have meant that participation in committee meetings or activities, even influential participation, would be enough to make someone a member of the committee . . . . Separation-of-powers concerns strongly support this interpretation of FACA. In making decisions on personnel and policy, and in formulating legislative proposals, the President must be free to seek confidential information from many sources, both inside the government and outside.

The court also denied the plaintiff's request for further discovery.

December 11, 2018 in Cases and Case Materials, Congressional Authority, Courts and Judging, Executive Authority, Jurisdiction of Federal Courts, News, Opinion Analysis, Separation of Powers | Permalink | Comments (0)

Organizations Have Standing to Challenge USDA Inaction on Birds (again), but Lose (again)

Judge Trevor N. McFadden (D.D.C.) ruled in American Anti-Vivisection Society v. USDA that plaintiff organizations had standing to sue the USDA for its 14-year failure to extend protections under the Animal Welfare Act to birds. But at the same time, the court ruled that the plaintiffs' Administrative Procedure Act claims failed.

The case is a reprise of PETA v. USDA, a D.C. Circuit ruling over 3 years ago.

The court recognized the D.C. Circuit's "permissive" rules on organizational standing, and said that while this case presented standing difficulties, it fell in line with PETA:

But the Plaintiffs' organizational standing allegations are similar enough to PETA II to dictate the outcome here. As there, the Plaintiffs have, "at the dismissal stage, adequately shown that the USDA's inaction injured [their] interests and, consequently, [they have] expended resources to counteract those injuries." They have alleged with enough supporting factual allegations that the challenged agency decisions "deny [them] access to information and avenues of redress they wish to use in their routine information-dispensing, counseling, and referral activities." In other words, they have plausibly "alleged inhibition of their daily operations, . . . an injury both concrete and specific to the work in which they are engaged."

This injury--an inability to gather information, publish reports, and help reduce the neglect and abuse of birds--is traceable to the Department's inaction and could be redressed by an order compelling the Department to issue regulations. And the Plaintiffs have pointed to webinars and other educational programs they must produce in the absence of applicable avian regulations. The Court finds that the Plaintiffs have standing and that it has jurisdiction to consider the merits of their arguments.

Nevertheless, the court ruled that the plaintiffs' APA claims failed, because the USDA took the "legally required" action (even if not the bird rules), and because the USDA's inaction isn't a "final agency action."

December 11, 2018 in Cases and Case Materials, Courts and Judging, Jurisdiction of Federal Courts, News, Opinion Analysis, Standing | Permalink | Comments (0)

Thursday, December 6, 2018

Check it Out: Greenhouse on How President George H.W. Bush Filled Supreme Court Vacancies

Check out Linda Greenhouse's piece in the NYT, How to Fill a Supreme Court Vacancy.

My goal here is not to appraise the two Bush 41 justices. It's to compare the approaches--one conciliatory, the other, confrontations--that in the space of a single year (July 1990 to July 1991) produced such different nominees. Those approaches remain today as contrasting archetypes for how to fill a Supreme Court vacancy.

December 6, 2018 in Courts and Judging, News | Permalink | Comments (0)

Tuesday, December 4, 2018

Fifth Circuit Says No Standing to Challenge Mississippi Flag

The Fifth Circuit ruled that plaintiffs lacked standing to challenge a Mississippi town's decision to fly the state flag over city hall as a violation of the Fair Housing Act. The ruling ends the case.

The plaintiffs in Mississippi Rising Coalition v. City of Ocean Springs, Mississippi, challenged a city council resolution requiring the state flag to be flown over city hall and other municipal buildings. They claimed that flying the flag, which includes the Confederate battle flag, amounted to "racial steering" in violation of the FHA.

But the Fifth Circuit ruled that they lacked both Article III and statutory standing. As to Article III, the court simply pointed to a 2017 ruling, Moore v. Bryant, also denying standing to plaintiffs challenging the state flag, but under equal protection: "That Plaintiff alleges that he personally and deeply feels the impact of Mississippi's state flag, however sincere those allegations are, is irrelevant to . . . standing analysis unless Plaintiff alleges discriminatory treatment." The court said that "[i]f exposure to a flag does not injure a plaintiff for equal protection purposes, exposure to the same flag does not injure a plaintiff for FHA purposes either."

As to statutory standing under the FHA, the court said that flying the flag is not a "discriminatory housing practice," and that the plaintiffs therefore weren't "aggrieved persons" under the Act.

December 4, 2018 in Cases and Case Materials, Courts and Judging, News, Opinion Analysis, Standing | Permalink | Comments (0)

Wednesday, November 28, 2018

SCOTUS Hears Oral Argument in Excessive Fines and Forefeiture Case

The United States Supreme Court heard oral arguments in Timbs v. Indiana, raising the issue of whether the Eighth Amendment's prohibition of "excessive fines" is incorporated as against the States and how this relates to forfeitures. The underlying facts in the case involve the forfeiture of a Land Rover.  Recall that the Indiana Supreme Court rejected an excessive fines challenge under the Eighth Amendment concluding that "the Excessive Fines Clause does not bar the State from forfeiting Defendant's vehicle because the United States Supreme Court has not held that the Clause applies to the States through the Fourteenth Amendment." 

As to the incorporation argument, some Justices seemed skeptical that there was any plausible argument that the Excessive Fines Clause should not be incorporated. Justice Gorsuch quickly intervened in the Indiana Solicitor General's argument: "can we just get one thing off the table? We all agree that the Excessive Fines Clause is incorporated against the states." 

1600px-Bill_of_Rights_CarThe Indiana Solicitor General did not concede this point, even after being pressed. Instead, the Indiana Solicitor General argued that the question of incorporation — including the test of whether the right is so deeply rooted in this nation's history and traditions and whether the right is implicit in the concept of ordered liberty as to be fundamental — rests on the articulation of the right as including forfeiture as the Court held in Austin v. United States (1993). Indeed, the Indiana Solicitor General suggested that the Court should overrule Austin.

The relationship between the incorporation of the right and the scope of the right permeated the argument. As Justice Kagan observed to the Indiana Solicitor General, there were two questions:

And one question is incorporating the right, and the other question is the scope of the right to be incorporated.

And, really, what you're arguing is about the scope of the right.

On the other hand, Chief Justice Roberts, responding to the argument of Wesley Hottot on behalf of the petitioner Tyson Timbs, stated that the collapse of the two questions was to ask the Court to "buy a pig in a poke," to just hold that the right is incorporated and later figure out what it means.

In his rebuttal, Mr. Hottot argued that the case was about "constitutional housekeeping," adding that while the Court had "remarked" five times over the last 30 years that the "freedom from excessive economic sanctions should be applied to the states," it had never explicitly so held. 

If the oral argument is any indication, the Court seems poised to rule that the Excessive Fines Clause is incorporated through the Fourteenth Amendment's Due Process Clause.

[image via]

November 28, 2018 in Courts and Judging, Fourteenth Amendment, Fundamental Rights, Supreme Court (US) | Permalink | Comments (0)

Wednesday, November 21, 2018

CJ Roberts Defends Independence of Judiciary

Chief Justice Roberts issued an extraordinary statement today defending the independence of the judiciary. The statement came after President Trump attacked Judge Tigar as an "Obama judge" because of Judge Tigar's ruling yesterday halting President Trump's restrictions on asylum claims at the Mexican border.

The statement reads,

We do not have Obama judges or Trump judges, Bush judges or Clinton judges. What we have is an extraordinary group of dedicated judges doing their level best to do equal right to those appearing before them. That independent judiciary is something we should all be thankful for.

Here's Adam Liptak's report in the NYT.

November 21, 2018 in Courts and Judging, News, Separation of Powers | Permalink | Comments (0)

Thursday, October 18, 2018

Check it Out: Liptak on Judicial Clerk Training by Heritage

Check out Adam Liptak's piece in the NYT on the Heritage Foundation's closed-door "training academy" for federal judicial clerks. Here's from the article:

"Generous donors," the application materials said, were making "a significant financial investment in each and every attendee." In exchange, the future law clerks would be required to promise to keep the program's teaching materials secret and pledge not to use what they learned "for any purpose contrary to the mission or interest of the Heritage Foundation."

October 18, 2018 in Courts and Judging, News | Permalink | Comments (0)

Wednesday, October 10, 2018

District Judge Finds ICWA Unconstitutional

In his opinion in Brackeen v. Zinke, United States District Judge for the Northern District of Texas, Reed O'Connor, entered summary judgment for the plaintiffs and found that portions of the Indian Child Welfare Act, ICWA  are unconstitutional, specifically violating equal protection, the non-delegation doctrine of Article I, and the commandeering principle of the Tenth Amendment.  Passed in 1978, the general purpose of ICWA is to prevent Native children from being removed from their families and tribes based on a finding that "an alarmingly high percentage of Indian families [were being] broken up by the removal, often unwarranted, of their children from them by nontribal public and private agencies” as Judge O'Connor's opinion acknowledged, quoting Adoptive Couple v. Baby Girl (2013) (quoting 25 U.S.C. § 1901(4)).

Judge Reed O'Connor, however, accepts an argument that was sidestepped by the United States Supreme Court in Baby Girl: that ICWA violates equal protection (applied to the federal government through the Fifth Amendment) by making a racial classification that does not survive strict scrutiny. Recall that in some briefs as well as in the oral argument, the specter of the racial classification was raised.  In United States District Judge O'Connor's opinion, that specter is fully embodied. Judge O'Connor found that ICWA does make a racial classification, rejecting the government's view that the classification at issue was a political category. Judge O'Connor reasoned that ICWA defines Indian child not only by membership in an Indian child, but extends its coverage to children "simply eligible for membership who have a biological Indian parent." Thus, Judge O'Connor reasoned, ICWA's definition "uses ancestry as a proxy for race" and therefore must be subject to strict scrutiny.  Interestingly, the United States government did not offer any compelling governmental interest or argued that the classification is narrowly tailored to serve that interest. Judge O'Connor nevertheless credited the Tribal Defendants/Intervenors assertion of an interest in maintaining the Indian child's relationship with the tribe, but found that the means chosen was overinclusive, concluding that

The ICWA’s racial classification applies to potential Indian children, including those who will never be members of their ancestral tribe, those who will ultimately be placed with non-tribal family members, and those who will be adopted by members of other tribes.

On the non-delegation claim, Judge Reed O'Connor found it fatal that ICWA allows Tribes to change the child placement preferences selected by Congress and which then must be honored by the states in child custody proceedings.

1170px-Flag_of_the_Cherokee_Nation.svg

On the Tenth Amendment claim, Judge Reed O'Connor relied on the Court's recent decision in Murphy v. NCAA holding unconstitutional a federal law prohibiting states from allowing sports gambling regarding anti-commandeering, concluding that

Congress violated all three principles [articulated in Murphy] when it enacted the ICWA. First, the ICWA offends the structure of the Constitution by overstepping the division of federal and state authority over Indian affairs by commanding States to impose federal standards in state created causes of action. See 25 U.S.C. § 1915(a). Second, because the ICWA only applies in custody proceedings arising under state law, it appears to the public as if state courts or legislatures are responsible for federally-mandated standards, meaning “responsibility is blurred.” Third, the ICWA shifts “the costs of regulations to the States” by giving the sole power to enforce a federal policy to the States.  Congress is similarly not forced to weigh costs the States incur enforcing the ICWA against the benefits of doing so. In sum, Congress shifts all responsibility to the States, yet “unequivocally dictates” what they must do.

[citations to Murphy omitted].

 
With more abbreviated analysis, Judge Reed O'Connor found that the applicable regulations pursuant to ICWA violated the Administrative Procedure Act and that Congress did not have power to pass ICWA under the Indian Commerce Clause because it was limited by the Tenth Amendment. However, Judge O'Connor rejected the individual prospective plaintiffs' argument that ICWA violated the Due Process Clause's protection of family rights.
 
This opinion finding a long-standing statute unconstitutional is sure to be appealed, especially by the Cherokee Nation and other Tribal Intervenors.
 

October 10, 2018 in Congressional Authority, Courts and Judging, Due Process (Substantive), Equal Protection, Family, Federalism, Fifth Amendment, Fundamental Rights, Nondelegation Doctrine, Opinion Analysis, Race, Tenth Amendment | Permalink | Comments (0)

Tuesday, October 2, 2018

Check it Out: Tribe on All the Ways a Justice Kavanaugh Would Have to Recuse Himself

Check out Laurence Tribe's piece in the NYT, All the Ways a Justice Kavanaugh Would Have to Recuse Himself. Tribe argues that given Judge Kavanaugh's "intemperate personal attacks on members of the Senate Judiciary Committee, his partisan tirades" last week, and "his stated animosities and observation that 'what goes around comes around,'" he'd have to recuse himself from a whole lot of cases:

Judge Kavanaugh's attacks on identifiable groups--Democrats, liberals, "outside left-wing opposition groups" and those angry "about President Trump and the 2016 election" or seeking "revenge on behalf of the Clintons"--render it inconceivable that he would "administer justice without respect to persons," as a Supreme Court justice must swear to do, when groups like Planned Parenthood, the NRDC Action Fund, the NAACP Legal Defense Fund, NARAL Pro-Choice America or the American Civil Liberties Union appear as parties or file briefs on behalf of plaintiffs and defendants.

 

October 2, 2018 in Courts and Judging, News | Permalink | Comments (1)

Friday, September 28, 2018

District Court Says Members of Congress Have Standing to Sue President for Emoluments Violations

Judge Emmet G. Sullivan (D.D.C.) ruled today in Blumenthal v. Trump that members of Congress have standing to sue President Trump for violations of the Foreign Emoluments Clause. At the same time, Judge Sullivan declined to rule on the President's other three arguments for dismissal--that the plaintiffs lack a cause of action, that they've failed to state a claim (because the President's business interests aren't "emoluments" under the Clause), and that injunctive relief sought is unconstitutional. Thus, the ruling is a set-back for the President, but Judge Sullivan may yet end up dismissing the case on other grounds.

We posted here on the earlier district court ruling that another Emoluments case, brought by Maryland and D.C., can move forward.

The Congressmembers' case alleges that President Trump's overseas business holdings and properties generate income and benefits for the President, without the consent of Congress, in violation of the Foreign Emoluments Clause. That Clause says:

No Title of Nobility shall be granted by the United States: And no Person holding any Office of Profit or Trust under them, shall, without the Consent of the Congress, accept of any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State.

The 201 plaintiffs seek declaratory and injunctive relief. They claimed that they were harmed (for standing purposes) because the President, by failing to seek congressional consent, denied each of them a "vote on the record about whether to approve his acceptance of a prohibited foreign emolument."

The court agreed:

[E]ach time the President allegedly accepts a foreign emolument without seeking congressional consent, plaintiffs suffer a concrete and particularized injury--the deprivation of the right to vote on whether to consent to the President's acceptance of the prohibited foreign emolument--before he accepts it. And although the injury is an institutional one, the injury is personal to legislators entitled to cast the vote that was nullified.

The court went on to say that standing didn't violate the separation of powers. The court held that the plaintiffs lacked an alternative legislative remedy, and that the case was appropriate for judicial review.

September 28, 2018 in Congressional Authority, Courts and Judging, Executive Authority, Jurisdiction of Federal Courts, News, Opinion Analysis, Separation of Powers, Standing | Permalink | Comments (0)

Wednesday, September 26, 2018

Senator Merkley Sues to Halt Kavanaugh Confirmation Process

Senator Jeff Merkley today sued President Trump, Senate colleagues, and others in federal court (D.D.C.) to halt the confirmation process of Judge Brett Kavanaugh. Senator Merkley argues that the defendants' actions violate the separation of powers and the Senate's constitutional role in providing advice and consent on Judge Kavanaugh's nomination to the Supreme Court.

The lawsuit relates to the defendants' failure to produce documents, not the more recent sexual assault and misconduct allegations against Judge Kavanaugh. The government will surely file a motion to dismiss based on the political question doctrine (itself a separation-of-powers matter), among others. The outcome of the case (and the confirmation process more generally) will set the standards for document release and Senate advice-and-consent for future judicial nominations, by Republicans and Democrats alike.

Here's the gist:

This case arises from the direct and substantial interference by President Trump and other agents of the executive branch in the ability of the Senate to examine the record and evaluate the fitness of Judge Brett Kavanaugh, the President's nominee for a lifetime appointment as an Associate Justice of the Supreme Court of the United States. President Trump and agents of the executive branch interfered in the ability of Senator Merkley and the Senate to provide advice and consent by, inter alia, imposing a broad and unprecedented blockade on the Senate's and public's access to reams of key documents that directly bear on Judge Kavanaugh's views, experience, and character. This improper process regarding the production of relevant documents prevents Senator Merkley and his colleagues from properly exercising their constitutional obligation to provide advice and consent on the qualifications of the nominee and deprives them of the ability to fully assess the nominee's fitness to assume the position of an Associate Justice of the United States Supreme Court.

***

The President and officers of the executive branch have interfered in the Senate's advice and consent responsibility in three critical ways: encouraging the Senate Majority to not request documents related to Kavanaugh's time while serving as Staff Secretary to George W. Bush; blocking access to an extensive set of documents related to the nominee's views and actions while serving in President George W. Bush's Office of White House Counsel; and blocking full access by all Senators and the public to documents delivered to the Senate Judiciary Committee but marked "Committee Confidential."

Senator Merkley asks the court to order that

(a) Defendant Trump withdraw his excessive invocation of executive privilege and produce a privilege log for documents truly subject to executive privilege;

(b) Defendants McConnell, Grassley, Adams, and Stenger not hold or permit a vote on the nominee's confirmation, or otherwise act to advance the confirmation process, until the National Archives releases his records, including the records requested by Senator Grassley regarding the nominee's work at the Office of White House Counsel, and there is sufficient time for the U.S. Senate to review the documents and conduct a careful review of the newly released documents;

(c) National Archives expedite the production of the documents to the earliest date practical;

(d) Defendant Burck cease and desist from usurping the traditional role of the neutral professionals at the National Archives.

September 26, 2018 in Cases and Case Materials, Congressional Authority, Courts and Judging, Executive Authority, News, Separation of Powers | Permalink | Comments (3)

Thursday, September 20, 2018

Ninth Circuit Rules No-Fly Challenger's Case Not Moot

The Ninth Circuit ruled in Fikre v. FBI that the plaintiff's due process challenges to his inclusion on the government's no-fly list were not moot, even though the government took him off the list during the litigation. The ruling means that the plaintiff's case challenging his inclusion on the no-fly list can move forward.

The case arose from Yonas Fikre's inclusion on the no-fly list and his several and significant resulting harms. Fikre alleged that his inclusion violated substantive and procedural due process, and he sought declaratory and injunctive relief. During the litigation, the government removed Fikre from the list, however, and moved to dismiss the case as moot. The district court granted the motion.

The Ninth Circuit reversed. The court ruled that Fikre's case came under the voluntary cessation exception to mootness--that signs pointed to the government opportunistically removing him, and that the government could reinstate him at any time. The court explained:

To begin, the FBI's decision to restore Fikre's flying privileges is an individualized determination untethered to any explanation or change in policy, much less an abiding change in policy. . . .

Moreover, the government has no assured Fikre that he will not be banned from flying for the same reasons that prompted the government to add him to the list in the first place, nor has it verified the implementation of procedural safeguards conditioning its ability to revise Fikre's status on the receipt of new information. . . .

Finally . . . we note that Fikre's removal from the No Fly List does not "completely and irrevocably eradicate[] the effects of the alleged violation[s]."

The ruling sends the case back to the district court for further proceedings.

September 20, 2018 in Cases and Case Materials, Courts and Judging, Jurisdiction of Federal Courts, Mootness, News, Opinion Analysis | Permalink | Comments (0)

Monday, September 10, 2018

Check it Out: Serwer on the Court's Return to the 19th Century

Check out Adam Serwer's piece in The Atlantic, The Supreme Court is Headed Back to the 19th Century. Here's a taste:

The conservative majority on the Supreme Court today is similarly blinded [like the Court in the late 19th century] by a commitment to liberty in theory that ignores the reality of how Americans' lives are actually lived. Like the Supreme Court of that era, the conservatives on the Court today are opposed to discrimination in principle, and indifferent to it in practice. Chief Justice John Roberts's June 2018 ruling to uphold President Donald Trump's travel ban targeting a list of majority-Muslim countries, despite the voluminous evidence that it had been conceived in animus, showed that the muddled doctrines of the post-Reconstruction period retain a stubborn appeal.

September 10, 2018 in Courts and Judging, News | Permalink | Comments (0)

Tuesday, September 4, 2018

Daily Read: Report on the Civil Rights Record of Kavanaugh by NAACP LDF

In its Report entitled The Civil Rights Record of Judge Brett Kavanaugh, the Legal Defense and Education Fund, Inc. of the NAACP supports its opposition to the confirmation of Judge Kavanaugh to the United States Supreme Court.

At just shy of 100 pages, the Report details concerns regarding Kavanaugh's record in areas such as executive power, criminal justice, qualified immunity, voting rights, campaign finance, reproductive rights, Second Amendment, and access to justice issues such as standing and pro se litigants.  But importantly, the Report makes clear:

even before considering the opinions he has authored, the speeches he has given, and his full legal record, the following is true: Judge Kavanaugh’s  nomination is tainted by the influence of reactionary groups in his selection by the  President and by the President’s assertion that his nominees will target and overturn  settled Supreme Court precedent. A woefully inadequate document production is  thwarting the Senate’s “advice and consent” function and the ability of the American  public to determine whether they want their Senators to support this nominee. And  perhaps most significantly, the President’s credibility has been sapped by the ongoing  investigations that raise questions about the legitimacy of his occupancy of the Oval  Office and the vast powers it confers, such as the nomination of Supreme Court  Justices.  This highly unusual and critical context powerfully bears on our assessment of Judge Kavanaugh’s nomination.

Yet the report does delve deeply into Kavanaugh's decisions and reaches conclusions. For example, after a discussion of his decisions about campaign finance, the Report states:

Judge Kavanaugh’s campaign finance record provides four overarching themes. First, Judge Kavanaugh appears hostile to campaign finance regulations, seeming to be unwilling to uphold regulations beyond a narrow anti-corruption rationale. Second, Judge Kavanaugh’s BCRA interpretation [in Bluman v. Federal Election Committee] about the scope of issue-advocacy expenditures would allow foreign actors to engage in thinly veiled “issue advocacy” that deepens racial and religious division leading up to elections. Such a narrow interpretation of the BCRA prevents it from barring foreign actors who influence U.S. elections in concrete ways and increases the likelihood of the use of these racial appeals during the next federal election, an important tool of suppressing the votes of communities of color. Third, as evident in Emily’s List [v. Federal Election Commission], Judge Kavanaugh appears willing to reach out unnecessarily to decide issues in this context. Fourth, Judge Kavanaugh would likely revisit the soft-money limits on contributions to political parties as justice.

At several points, the Report suggests questions and specific focus for the Senate questioning. The hearings begin today.

LDF Report
 

September 4, 2018 in Campaign Finance, Courts and Judging, Supreme Court (US) | Permalink | Comments (0)

Monday, August 27, 2018

Three Judge Court Invalidates North Carolina Redistricting Plan Redux

 In an extensive opinion, a three judge court in Common Cause v. Rucho (& League of Women Voters v. Rucho) held that North Carolina's 2016 redistricting plan was a product of partisan gerrymandering and violates the Equal Protection Clause, the First Amendment, and Article I of the Constitution. 

The opinion is almost 300 pages with an additional comparatively brief 25 plus page concurring and dissenting opinion, but the three judge court is often discussing familiar matters. Recall that the court had reached this result in January 2018.  However, recall also that the United States Supreme Court issued a stay shortly thereafter.  In July 2018, the United States Supreme Court vacated the three judge court's decision in Rucho in light of  Gill v. Whitford (2018), which, the three judge court states, "addressed what evidence a plaintiff must put forward to establish Article III standing to lodge a partisan vote dilution claim under the Equal Protection Clause." The three judge court's opinion in Rucho holds that standing was satisfied under the Gill test as to equal protection and further that "Gill did not call into question—and, if anything, supported—this Court’s previous determination that Plaintiffs have standing to assert partisan gerrymandering claims under Article I and the First Amendment." 

As for the merits, Gill v. Whitford is not particularly useful; as we said when Gill was decided, it (with the per curiam decision in Benisek v. Lamone, "leave the constitutionality of partisan gerrymandering as unsettled as before." Thus, the three judge court had little guidance to reconsider its previous conclusions.

Perhaps the most noteworthy aspect of the three judge court's decision today in Rucho, however, is the remedy: the court notes that the circumstances are unusual and writes:

we decline to rule out the possibility that the State should be enjoined from conducting any further congressional elections using the 2016 Plan. For example, it may be possible for the State to conduct a general election using a constitutionally compliant districting plan without holding a primary election. Or, it may be viable for the State to conduct a primary election on November 6, 2018, using a constitutionally compliant congressional districting plan, and then conduct a general election sometime before the new Congress is seated in January 2019. Accordingly, no later than 5 p.m. on August 31, 2018, the parties shall file briefs addressing whether this Court should allow the State to conduct any future election using the 2016 Plan. Those briefs should discuss the viability of the alternatives discussed above, as well as any other potential schedules for conducting elections using a constitutionally compliant plan that would not unduly interfere with the State’s election machinery or confuse voters. Regardless of whether we ultimately allow the State to use the 2016 Plan in the 2018 election, we hereby enjoin the State from conducting any elections using the 2016 Plan in any election after the November 6, 2018, election.

[emphasis in original].

The November election is in 70 days.

August 27, 2018 in Courts and Judging, Elections and Voting, Equal Protection, First Amendment, Opinion Analysis, Standing, Supreme Court (US) | Permalink | Comments (0)

Saturday, August 25, 2018

Check it Out: Zengerle on How Trump is Remaking the Courts

Check out Jason Zengerle's feature in the NYT Magazine, How the Trump Administration is Remaking the Courts. Zengerle examines how President Trump, with the help (or "ruthless discipline") of Senate Republicans, is shaping the courts. And how he's doing this at a blistering pace. And how this compares to the gummed-up Senate in the Obama Administration.

August 25, 2018 in Courts and Judging, News | Permalink | Comments (0)