Constitutional Law Prof Blog

Federal District Judge Finds Proposed Citizenship Question on Census Unconstitutional

Professor Ruthann Robson, City University of New York (CUNY) School of Law

In his 126 page opinion in California v. Ross, United States District Judge Richard Seeborg has found the decision of Secretary of Commerce Wilbur Ross to add a citizenship question to the 2020 census unlawful under the Administration Procedure Act and unconstitutional under the Enumeration Clause.

Recall that California filed its complaint in March 2018, including a claim that the Constitution requires the “actual Enumeration” of all people in each state every ten years for the sole purpose of apportioning representatives among the states. U.S. Const. art. I, § 2, cl. 3, and amend. XIV, § 2, and that by including the citizenship question on the 2020 Census, Defendants are in violation of the “actual Enumeration” clause of the Constitution because the question will diminish the response rates of non-citizens and their citizen relatives.  

Recall also that New York filed a similar complaint, which led to the 277 page decision in New York v. United States Department of Commerce rendered in January 2019, which is now scheduled for oral arguments at the United States Supreme Court on April 23 on the issue of whether the Secretary’s decision violated the Administrative Procedure Act, 5 U.S.C. 701 et seq.  An additional issue in the New York litigation — and the issue on which the United States Supreme Court first granted certiorari — involves the refusal of Secretary Ross to be deposed regarding his rationales for adding the citizenship question.

In California v. Ross, Judge Seeborg's opinion concluded that the plaintiff state of California, as well as plaintiff counties and cities in California, and the organization, Black Alliance for Just Immigration, satisfied the requirements for Article III standing. Important to this determination are questions of whether there would be actual injury in fact if a citizenship question were added to the census. Judge Seeborg extensively discussed the affidavits and experts regarding the relationship between the question and people responding to the census, an issue that dovetails with the constitutional Enumeration Clause claim. Judge Seeborg generally concluded there was Article III standing.

The major portion of Judge Seeborg's opinion is devoted to the Administrative Procedure Act. Judge Seeborg's concluded that "one need look no further than the Administrative Record to conclude that the decision to include the citizenship question was arbitrary and capricious, represented an abuse of discretion, and was otherwise not in accordance with law." However, Judge Seeborg's opinion also separately analyzed "extra-record" including

the absence of any effort to test the impact of the addition of the citizenship question to the census, the deviation from the Census Bureau’s usual process for adding new questions to the census, the troubling circumstances under which the DOJ’s request letter was drafted and procured, and Sessions’ order prohibiting DOJ staff from meeting with Census Bureau officials to discuss alternative sources of data that could meet DOJ’s VRA [Voting Rights Act] enforcement needs.

As to the Enumeration Clause, Judge Seeborg wrote:

The analysis of the Enumeration Clause claim similarly involves evidence beyond the four corners of the Administrative Record. As a general proposition, the decision to include a specific question on the census is committed to the discretion of the Commerce Secretary and does not implicate the constitutional command that all persons in each state be counted every ten years. However, if the Secretary’s decision to include a question affirmatively interferes with the actual enumeration and fulfills no reasonable governmental purpose, it may form the basis for a cognizable Enumeration Clause challenge.

Importantly, in finding the Enumeration Clause violation, Judge Seeborg concluded that the inclusion of a citizenship question

will materially harm the accuracy of the census without advancing any legitimate governmental interest. This is no ordinary demographic inquiry. The record reveals that the inclusion of the citizenship question on the upcoming census will have a unique impact on the Census Bureau’s ability to count the public, to the point where the inclusion of this question is akin to a mechanics-of-counting-type issue. In short, Secretary Ross’s decision to add the citizenship question to the 2020 Census undermines the “strong constitutional interest in [the] accuracy” of the census, and does so despite the fact that adding this question does not advance any identifiable government purpose.

[citation omitted]. The remedy for this constitutional violation is not a simple vacatur as it is for the APA injunction, but a nationwide injunction against including the citizenship question on the 2020 Census:

The record in this case has clearly established that including the citizenship question on the 2020 Census is fundamentally counterproductive to the goal of obtaining accurate citizenship data about the public. This question is, however, quite effective at depressing self-response rates among immigrants and noncitizens, and poses a significant risk of distorting the apportionment of congressional representation among the states. In short, the inclusion of the citizenship question on the 2020 Census threatens the very foundation of our democratic system—and does so based on a self-defeating rationale. In light of these findings, Defendants do not get another bite at the apple. Defendants are hereby enjoined from including the citizenship question on the 2020 Census, regardless of any technical compliance with the APA.

Given the nationwide injunction, the fast approaching deadlines for preparation of the 2020 Census, and the already-scheduled April arguments before the United States Supreme Court, the DOJ attorneys will probably act quickly to seek review of this decision.

[image: Los Angeles Census materials, 1920, via]

Daily Read: Johnson v. Trump

Professor Ruthann Robson, City University of New York (CUNY) School of Law

In a complaint filed in United States District Court for the Middle District of Florida against Donald Trump and the Donald Trump Campaign, former campaign staffer Alva Jones seeks relief on three counts: battery as against Trump in his individual capacity for a forcible kiss; unequal pay based on gender under the Unequal Pay Act against the Campaign organization; and unequal pay based on race under 42 USC §1981 against the Campaign organization.

The 39 page complaint in Jones v. Trump is filled with factual allegations, embedded tweets and photographs, and numerous footnotes.  The allegations substantiating the battery claim include recitations regarding previous allegations and statements regarding similar actions. 

Like the ongoing suit in New York state courts, Zervos v. Trump, for defamation linked to sexual harassment, one issue that defendant Trump could raise would be presidential immunity.  But the argument for any immunity is exceedingly weak given the United States Supreme Court's unanimous 1997 decision of Clinton v. Jones  holding that then-President Clinton was subject to suit in federal court. And any immunity does not extend to the campaign organization.

And as Ronan Farrow writes in the New Yorker:

The most legally significant aspect of Johnson’s suit may ultimately be something the complaint does not explicitly address: the pervasive use of nondisclosure agreements by Trump during his campaign and in his Administration. Johnson’s suit is at least the sixth legal case in which Trump campaign or Administration employees have defied their nondisclosure agreements. 

This will definitely be a case to watch, even if the constitutional issues are not the primary ones it certainly has constitutional dimensions.

Daily Read: Plessy v. Ferguson Revisited

In his essay review of the new book Separate: The Story of Plessy v. Ferguson, and America's Journey from Slavery to Segregation by Steve Luxenberg, critic Louis Menand retells the history of the Plessy v. Ferguson decision: infamous in hindsight but unnoticed in its time. Menand remarks, “even when principal figures in the case died, years later, their obituaries made no mention of it.” Menand contextualizes the case within the post-Reconstruction Jim Crow south and examines Plessy’s role in enshrining white supremacy.

Menand provides a rich discussion of Luxenberg’s hefty book (at 624 pages) which focuses its narrative on three key players in Plessy v. Ferguson: “Albion Tourgée, one of Plessy’s lawyers; Henry Billings Brown, the Justice who wrote the majority opinion; and John Marshall Harlan, who filed the lone dissent.” Menand’s assessment of the book is mixed. For example, Menand writes that the book is

deeply researched, and it wears its learning lightly. It’s a storytelling kind of book, the kind of book that refers to Albion Tourgée as Albion and John Harlan as John, and that paints the scene for us (“On a bright and beautiful night in late October 1858 . . . ”). Luxenberg does not engage in psychological interpretation. He doesn’t mention, for instance, that [Justice Henry Billings] Brown’s Yale classmates called him Henrietta because they thought he was effeminate—which might have contributed to Brown’s eagerness not to appear like a man who didn’t belong. And he dismisses in a footnote speculation that Robert Harlan, a man of mixed race who grew up as a member of John Harlan’s family, might have been a half brother. Even if he wasn’t in fact related to John, however, it might have mattered if John believed otherwise.

In short, Menand concludes that while the book is a "different way to tell the story,"  it "does not give us a new story," and observes that it "does seem a misjudgment to tell the story of an important civil-rights case as the story of three white men."

But while Menand argues that the book doesn't ultimately help with "the big historical questions," it is clear from Menand's review that the book offers deep insights into the case that constitutionalized racial segregation as equality.  In Plessy, the United States Supreme Court betrayed the promise — and meaning — of the the Fourteenth and Thirteenth Amendments to the Constitution.  By focusing at the legal actors who participated in the case, including Tourgée who argued for Plessy, Luxenberg's book is sure to attract attention from constitutional scholars and students.  I look forward to reading it.

 

Federal District Judge Enjoins Census Citizenship Question

In its 277 page Opinion in New York v. United States Department of Commerce, United States District Judge Jesse Furman concludes by vacating and enjoining the implementation of the decision of Department of Commerce Secretary Wilbur Ross (pictured below) adding a citizenship question to the 2020 census questionnaire.

Recall that this challenge is one of several to the proposal to add a citizenship question to the 2020 census.  Recall also that in July, Judge Furman denied in part motions to dismiss and allowed the case to proceed.  Judge Furman also allowed discovery in the form of a deposition of Wilbur Ross, an order which was stayed and is now before the United States Supreme Court: oral argument in Department of Commerce v. USDC Southern District of New York is scheduled for February 19, 2019, with the question presented as under the Administrative Procedure Act.

Here New York joins seventeen other state plaintiffs, the District of Columbia, as well as six cities and the United States Conference of Mayors, and the case is consolidated with New York Immigration Coalition v. United States Department of Commerce, with NGO plaintiffs. The claims involve the "actual enumeration" requirements in the Constitution,  Art. I, § 2, cl. 3, and Amend. XIV, § 2, as well as the Administration Procedure Act, with the NGO plaintiffs also raising a Due Process/Equal Protection claim which Judge Furman considered. The case was heard by Judge Furman in an eight day bench trial, despite, as Judge Furman's opinion phrases it the Defendants who have "tried mightily to avoid a ruling on the merits of these claims."

Judge Furman's lengthy opinion helpfully contains a table of contents which serves as an outline for the complicated facts and process involved in the case. 

A large portion of Judge Furman's opinion is devoted to the constitutional question of standing. This Article III issue — requiring an injury in fact, fairly traceable to the challenged conduct of the defendant, and that is likely to be redressed by a favorable judicial decision — is in essence a question of the Enumeration Clause problem.  In other words, to prove injury in fact, the Plaintiffs must prove that the addition of the citizenship question would impact enumeration in a particular way, or "cause a differential decline" in self-response rates which would not be cured, and which would effect apportionment and other matters. For Judge Furman, these and other claims, including a diversion of resources, harm to the quality of data used in intrastate policies, were sufficient to confer standing to the states. Additionally, Judge Furman addressed and found for the most part associational standing for the NGO plaintiffs.

On the merits, Judge Furman rested his decision on the APA claims, including that the decision violated provisions of the APA, was arbitrary and capricious, and most unusually, pretextual.

The evidence in the Administrative Record and the trial record, considered separately or together, establishes that the sole rationale Secretary Ross articulated for his decision — that a citizenship question is needed to enhance DOJ’s VRA enforcement efforts — was pretextual.

Judge Furman found that the "presumption of regularity" was rebutted here.

However, Judge Furman found that the equal protection claim (as part of Due Process Clause of the Fifth Amendment) as pressed by the NGO plaintiffs could not be sustained. Essentially, Judge Furman found that there was not sufficient proof that the pretextual decision was a pretext for discriminatory intent necessary under equal protection, as had been alleged and survived the motion to dismiss, but which now — without the deposition of Wilbur Ross — was not possible to prove, at least not yet.

Judge Furman justified the remedy of injunction thusly:

Measured against these standards, Secretary Ross’s decision to add a citizenship question to the 2020 census — even if it did not violate the Constitution itself — was unlawful for a multitude of independent reasons and must be set aside. To conclude otherwise and let Secretary Ross’s decision stand would undermine the proposition — central to the rule of law — that ours is a “government of laws, and not of men.” John Adams, Novanglus Papers, No. 7 (1775). And it would do so with respect to what Congress itself has described as “one of the most critical constitutional functions our Federal Government performs.” 1998 Appropriations Act,
§ 209(a)(5), 111 Stat. at 2480-81.

The government is sure to appeal.

Daily Read: Resolution to Censure Rep. Steve King for Racist Remarks

Congressman Bobby Rush of Illinois District 1 has introduced a Resolution in the House of Representatives to censure Congressman Steve King of Iowa, listing specific incidents beginning in 2006 and ending with the January 10 remark by Steve King to the New York Times: "White nationalist, White supremacist, Western civilization—how did that language become offensive?’’ Interestingly, the NYT article was profiling King as a precursor of the president's current demand for a "wall" on the southern border of the nation.  In a subsequent television interview Steve King stated he rejected white supremacy.

In November, a coalition of civil rights groups wrote a letter to the then-Speaker of the House and the then-House Majority Leader seeking censure of Representative King, detailing some of the same incidents in the Rush Resolution (and providing citations) as well as including others.

Year-End Report by Chief Justice Roberts, 2018

For his 2018 Year-End Report on the Federal Judiciary, the sexual harassment concerns which surfaced at the end of Chief Justice Roberts 2017 report (which we discussed here) occupied center stage. Opening with an anecdote about the importance of law clerks, the Chief Justice discussed the contribution that the Federal Judiciary Workplace Conduct Working Group has made, linking to its more than 140 page report issued in June. The Chief Justice noted that the report determined that "inappropriate workplace conduct is not pervasive within the Judiciary, but it also is not limited to a few isolated instances involving law clerks" and that "misconduct, when it does occur, is more likely to take the form of incivility or disrespect than overt sexual harassment" and frequently goes unreported.  The Chief Justice noted that committees have proposed changes to various codes of conduct and the employment dispute resolution plan.

Interestingly, the Chief Justice does not note that these codes exclude the United States Supreme Court itself, which is of continuing interest, and which the Chief Justice has alluded to in the past, as we last discussed here. Although he writes that "The Supreme Court will supplement its existing internal initiatives and experience of the other federal courts."

The Chief Justice again thanked judicial staff for working through numerous natural disasters, but again did not address the declining diversity of the federal bench, a lack we mentioned last year and which has seemingly only increased.

image: John Roberts being sworn-in as the 17th Chief Justice of the United States by Supreme Court Associate Justice John Paul Stevens, 2005, via.

 

Daily Read: SCOTUS Justices, Kavanaugh, and Ethics

In an editorial today, senior editorial writer of the Los Angeles Times Michael McGough argues that "Kavanaugh (and other justices) shouldn't be exempt from an ethics code." McGough's piece is prompted by the December 18 Order (from the Tenth Circuit as referred by Chief Justice Roberts) dismissing the 83 complaints against Kavanaugh which arose from his confirmation hearing and from his previous judicial conduct because Kavanaugh was now a Supreme Court Justice and "Congress has not extended the Judicial Conduct and Disability Act to Supreme Court Justices." As McGough notes, however, Chief Justice Roberts has implied "in a 2011 statement that formally applying the code to the Supreme Court might be unconstitutional because the code was designed for courts created by Congress — whereas the Supreme Court was created by the Constitution."  This refers the 2011 year end report by Chief Justice Roberts in which he stated:

The Code of Conduct, by its express terms, applies only to lower federal court judges. That reflects a fundamental difference between the Supreme Court and the other federal courts. Article III of the Constitution creates only one court, the Supreme Court of the United States, but it empowers Congress to establish additional lower federal courts that the Framers knew the country would need. Congress instituted the Judicial Conference for the benefit of the courts it had created. Because the Judicial Conference is an instrument for the management of the lower federal courts, its committees have no mandate to prescribe rules or standards for any other body.

The Chief Justice soon thereafter explicitly rejected a call from some members of Congress to consider making the Code applicable to the Justices.  As we noted at the time, these concerns arose from Justice Alito attending political events and swirling around Justice Thomas regarding nondisclosure of his wife's finances, his wife's political activities, and his own financial actions. 

Given the renewed concerns regarding the impartiality of the Court as evinced by McGough's editorial among many other pieces, it might be time for Chief Justice Roberts to reconsider his position.  And it will be interesting to see if Roberts addresses ethics in his 2018 year end report.

 

SCOTUS Oral Argument Preview: Excessive Fines and Forfeiture

Professor Ruthann Robson, City University of New York (CUNY) School of Law

On November 28, 2018, the United States Supreme Court will hear 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 arguably whether this includes forfeitures.

The Indiana Supreme Court's brief opinion clearly concluded 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." The Indiana Supreme Court cited footnote 13 of McDonald v. City of Chicago, in which a majority of the Court found that the Second Amendment was incorporated to the states through the Fourteenth Amendment (with a plurality relying on the Due Process Clause).  Recall that in footnote 12, Justice Alito's plurality opinion in McDonald listed the provisions of the Bill of Rights that had been incorporated with citations, while in footnote 13, Justice Alito listed the few remaining provisions not incorporated, also with citations.

Justice Alito's citation in footnote 14 of McDonald is to "Browning-Ferris Industries of Vt. v. Kelco Disposal (1989) (declining to decide whether the excessive-fines protection applies to the states)."  Yet as the Indiana Supreme Court notes, in its 2001 opinion in Cooper Industries, Inc. v. Leatherman Tool Group, Inc., the Court stated that the Fourteenth Amendment  made the "Eighth Amendment's prohibition against excessive fines and cruel and unusual punishments applicable to the States." The Indiana Supreme Court decided that the Cooper Industries statement was dicta and that the McDonald footnote omission of Cooper supported that conclusion ("we will not conclude lightly that the Supreme Court whiffed on the existence or meaning of its precedent").

Whatever the status of precedent, however, the Court is poised to resolve the question of the incorporation of the Excessive Fines Clause to the States.  The amicus briefs tilt heavily in this direction.  One possible wrinkle is the relationship between forfeiture and excessive fines, with the State of Indiana arguing that the issue is whether there is a right to proportionality in forfeiture proceedings that is sufficiently fundamental to meet the incorporation test (whether the right is deeply rooted in this nation's history and traditions and whether the right is implicit in the concept of ordered liberty).

 

New York State Judge Denies Trump Foundation Motion to Dismiss Complaint by State Attorney General

Professor Ruthann Robson, City University of New York (CUNY) School of Law

In her Decision and Order in People of State of New York v. Donald Trump (and three of the Trump children and the Trump Foundation), Justice Saliann Scarpulla denied Trumps' motion to dismiss the complaint by New York's Attorney General seeking dissolution of the Trump Foundation for violations of New York's Not-for-Profit Corporation Law and New York Estates, Powers, and Trusts Law.

 

The motion to dismiss argued in part that the state court lacked jurisdiction over "Mr. Trump" because pursuant to the Supremacy Clause, Article VI, a "sitting president may not be sued.  As Justice Scarpulla stated, the New York Attorney General noted that Trump "failed to cite a single case in which any court has dismissed a civil action against a sitting president on Supremacy Clause grounds, where, as here, the action is based on the president's unofficial acts." Justice Scarpulla relied the United States Supreme Court's unanimous 1997 decision of Clinton v. Jones holding that then-President Clinton was subject to a civil action, and agreeing with another New York judge in Zervos v. Trump, held that this extended to state courts as well as federal. Justice Scarpulla rejected Trump's arguments that state courts are less fair to federal officials and less able to manage accommodations for a sitting president, pointing out that state courts were equally fair and competent. She also rejected the argument that state courts were less suited to address legal issues against federal officials:  "The dissenting opinion that Respondents cite for this proposition simply noted that federal courts have greater expertise than state courts in applying federal law" and here, "resolution of the petition is governed entirely by New York law, thus a federal court's alleged superior knowledge of federal law is inapposite."

The Trump respondents also argued the petition should be dismissed because of bias by the former Attorney General and the office as a whole.  Justice Scarpulla concluded that there was not a sufficient evidentiary basis for bias, conflict of interest, or abuse of confidence, and that "given the very serious allegations set forth in the petition," there is "no basis for finding that animus and bias were the sole motivating factors" for the petition.

The Trump respondents also raised grounds for dismissal of specific claims, including claims surrounding the misuse of foundation funds during the campaign; Justice Scarpulla rejected all of these.

Justice Scarpulla's order notes that the Foundation has been "attempting to voluntarily dissolve for the past two years" and urges the parties to reach an agreement leading to that dissolution. Justice Scarpulla did dismiss as moot one count of the petition which sought an injunction against continuing operation of the Foundation, stating that the Trumps were attempting to dissolve the foundation and that no injunction was necessary.

This decision by a trial judge — New York's Supreme Courts are trial courts — is not a final order, but if Trump's past litigation strategies are any indication, he will attempt to forestall answering the petition, which Justice Scarpulla ordered be done within 45 days.

 

Florida District Judge Issues Injunction on Mismatched Signature Ballot Claim

Professor Ruthann Robson, City University of New York (CUNY) School of Law

In his opinion in Democratic Executive Committee of Florida v. Detzner, United States District Judge Mark Walker, Chief Judge for the Northern District of Florida, has granted the motion for a preliminary injunction and ordered Florida to "allow voters who have been belatedly notified they have submitted a mismatched-signature ballot to cure their ballots by November 17, 2018, at 5:00 p.m."

After finding that the plaintiffs had standing and were not barred by laches, Judge Walker reached the question of whether the plaintiffs were likely to prevail on their constitutional claims on the infringement of the right to vote. Judge Walker decided that the standard derived from Anderson-Burdick should be applied:

Under Anderson-Burdick, a court considering a challenge to a state election law “must weigh ‘the character and magnitude of the asserted injury to the rights protected by the First and Fourteenth Amendments that the plaintiff seeks to vindicate’ against ‘the precise interests put forward by the State as justifications for the burden imposed by its rule,’ taking into consideration ‘the extent to which those interests make it necessary to burden the plaintiff’s rights.’ ” Burdick. When an election law imposes only reasonable, nondiscriminatory restrictions upon the constitutional rights of voters, the states’ important regulatory interests are generally sufficient to justify the restrictions. Id. But, “[h]owever slight the burden may appear . . . it must be justified by relevant and legitimate state interests sufficiently weighty to justify the limitations.” Common Cause/Ga. v. Billups, 554 F.3d 1340, 1352 (11th Cir. 2009). This is not a litmus test, rather the court must balance these factors and make hard judgments. Crawford v. Marion Cty. Election Bd., 553 U.S. 181, 190 (2008). Finally, “Anderson/Burdick balancing . . . should not be divorced from reality, and [] both the burden and legitimate regulatory interest should be evaluated in context.”

[some citations omitted]

Judge Walker found that the "injury is the deprivation of the right to vote based on a standardless determination made by laypeople that the signature on a voters’ vote-by-mail or provisional ballot does not match the signature on file with the supervisor of elections." The judge noted that there are  "dozens of reasons a signature mismatch may occur, even when the individual signing is in fact the voter," and concluded that disenfranchisement of "approximately 5,000 voters based on signature mismatch is a substantial burden." While Judge Walker found that Florida's interests "to prevent fraud, to efficiently and quickly report election results, and to promote faith and certainty in election results" were compelling, the "use of signature matching is not reasonable and may lead to unconstitutional disenfranchisement."

Judge Walker extended the period for voters to address a potential signature mismatch by noting that the previous opportunity to cure has "proved illusory."

Provisional ballot voters are provided no opportunity to cure under the law. Without this Court’s intervention, these potential voters have no remedy. Rather, they are simply out of luck and deprived of the right to vote. What is shocking about Florida law is that even though a voter cannot challenge a vote rejected as illegal, any voter or candidate could challenge a vote accepted as legal. The burden on the right to vote, in this case, outweighs the state’s reasons for the practice. Thus, under Anderson-Burdick, this scheme unconstitutionally burdens the fundamental right of Florida citizens to vote and have their votes counted.

Additionally, Judge Walker noted that although the plaintiffs' claims rested on the First Amendment and Equal Protection Clause of the Fourteenth Amendment, he was also troubled by the lack of procedural due process, citing the Georgia mismatch decision in Martin v. Kemp.

Judge Walker's 34 page opinion did not cite Bush v. Gore (2000).

The Florida recount, like the Georgia recount continues, more than a week after election day.

 

Daily Read: Proposal to End Birthright Citizenship Unconstitutional

In an opinion piece in the Washington Post, Neal Katayl and George Conway III argue that the president's publicized plan to end "birthright citizenship" by Executive Order would be unconstitutional.

They argue that the EO's content contradicts the plain language of the first sentence of the Fourteenth Amendment, "All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States."  In addition to the text, they argue that any originalist understanding of this sentence — which "sprang from the ashes of the worst Supreme Court decision in U.S. history, Dred Scott v. Sandford,the 1857 decision that said that slaves, and the children of slaves, could not be citizens of the United States" — must support birthright citizenship except in the most narrow of circumstances.

Further, they argue that any EO by the president would exceed the scope of his authority, given that it is Congress  that is in the "driver’s seat" on issues of immigration, and they quote candidate Trump having recognized that at one time.

The op-ed seeks to bridge factions on this issue by touting its own authorship and the neutrality of the Constitution:

The fact that the two of us, one a conservative and the other a liberal, agree on this much despite our sharp policy differences underscores something it is critically important to remember during a time marked by so much rancor and uncivil discourse: Our Constitution is a bipartisan document, designed to endure for ages. Its words have meaning that cannot be wished away.

District Judge Dismisses Stormy Daniels' Claim of Defamation Against Trump

Professor Ruthann Robson, City University of New York (CUNY) School of Law

In his 14 page opinion as a minute order in Cliffords v. Trump, the federal judge dismissed the claim of Stormy Daniels (a/k/a Stephanie Clifford) against President Trump for defamation.  Recall the claim was based on Trump's tweet  "A sketch years later about a nonexistent man. A total con job, playing the Fake News Media for Fools (but they know it)!" Daniels' complaint claimed that Trump was not only attacking the truthfulness of  Daniels, but also accusing her of a crime: fabricating a crime and an assailant, both of which are crimes under New York law. The complaint alleges that Trump "made his statement either knowing it was false, had serious doubts about the truth of his statement, or made the statement with reckless disregard for its truth or falsity."

The judge, however, found:

Mr. Trump's statement constituted "rhetorical hyperbole" that is protected by the First Amendment.

Additionally, the judge denied a motion to amend the complaint:

The Court holds that Mr. Trump's tweet is "rhetorical hyperbole" and is protected by the First Amendment. Plaintiff cannot amend the Complaint in a way that challenges this holding. During argument on this matter, Plaintiff suggested that she could amend her Complaint to "shore up the malice allegations" and to "provide context for the statement to show that, in fact, it was not political nature at the time it was made." (Transcript * * * ) The former amendments are futile because this Court rules that Mr. Trump's tweet is protected by the First Amendment. The issue of malice is irrelevant to this holding. The latter amendments are futile because there is no way for Plaintiff to amend the Complaint to transform the tweet from "rhetorical hyperbole" into an actionable statement. * * * * Plaintiff cannot change Mr. Trump's tweet or the basic context of the tweet. Nor can Plaintiff withdraw factual allegations that she has made in pleadings before this Court. In the other litigation before this Court, Ms. Clifford argues that Mr. Trump sought to silence her as a strategy to win the Presidential election, a clear argument against the legitimacy of Mr. Trump's Presidency. Mr. Trump issued the tweet as a rejoinder against an individual challenging him in the public arena. This is the definition of protected rhetorical hyperbole. The Court denies Plaintiff leave to amend the Complaint.

The result is not surprising given reports that after a hearing several weeks ago,  Judge James Otero indicated he would be dismissing the action.

The judge also awards Trump attorneys fees.

 

Daily Read: United States Senate Supports Free Press

Senate Resolution 607 , introduced by Senators Brian Schatz and Chuck Schumer, and affirmed unanimously, provides:

Whereas the First Amendment to the Constitution of the United States protects the press from government control and suppression;

Whereas the freedom of the press—

(1) has been recognized as integral to the democratic foundations of the United States since the beginning of the United States; and

(2) has endured and been reaffirmed repeatedly throughout the history of the United States;

Whereas Benjamin Franklin in 1722 wrote, ‘‘Whoever would overthrow the Liberty of a Nation, must begin by subduing the Freeness of Speech.’’;

Whereas Thomas Jefferson in 1786 wrote, ‘‘Our liberty de- pends on the freedom of the press, and that cannot be limited without being lost.’’;

Whereas James Madison in 1789 introduced the freedom of the press in the Bill of Rights to the Constitution of the United States;

Whereas James Madison based the freedom of the press on the Declaration of Rights of the Commonwealth of Virginia, which in 1776 declared, ‘‘The freedom of the Press is one of the greatest bulwarks of liberty, and can never be restrained but by despotic Governments.’’;

Whereas President Ronald Reagan proclaimed August 4, 1985, as Freedom of the Press Day, stating that ‘‘Freedom of the press is one of our most important freedoms and also one of our oldest.’’;

Whereas President Reagan also said, ‘‘Today, our tradition of a free press as a vital part of our democracy is as important as ever. The news media are now using modern techniques to bring our citizens information not only on a daily basis but instantaneously as important events occur. This flow of information helps make possible an informed electorate and so contributes to our national system of self-government.’’;

Whereas Justice Anthony Kennedy wrote in International Soc. for Krishna Consciousness, Inc. v. Lee, 505 U.S. 672 (1992), ‘‘The First Amendment is often inconvenient. But that is beside the point. Inconvenience does not absolve the government of its obligation to tolerate speech.’’;

Whereas the United States Supreme Court also affirmed the history and intent of the freedom of the press in New York Times Co. v. United States, 403 U.S. 713 (1971), stating, ‘‘In the First Amendment, the Founding Fathers gave the free press the protection it must have to fulfill its essential role in our democracy. The press was to serve the governed, not the governors. The Government’s power to censor the press was abolished so that the press would remain forever free to censure the Government. The press was protected so that it could bare the secrets of government and inform the people. Only a free and unrestrained press can effectively expose deception in government.’’;

Whereas tyrannical and authoritarian governments and leaders throughout history have sought to undermine, censor, suppress, and control the press to advance their undemocratic goals and actions; and

Whereas the United States, including the long-held commitment to and constitutional protection of the free press in the United States, has stood as a shining example of democracy, self-government, and freedom for the world to emulate: Now, therefore, be it

Resolved, That—

(1) the Senate—

(A) affirms that the press is not the enemy of the people;

(B) reaffirms the vital and indispensable role that the free press serves to inform the electorate, uncover the truth, act as a check on the inherent power of the government, further national discourse and debate, and otherwise advance the most basic and cherished democratic norms and freedoms of the United States; and

(C) condemns the attacks on the institution of the free press and views efforts to systematically undermine the credibility of the press as an attack on the democratic institutions of the United States; and

(2) it is the sense of the Senate that it is the sworn responsibility of all who serve the United States by taking the oath to support and defend the Constitution of the United States to uphold, cherish, and protect the entire Constitution, including the freedom of the press.

This Resolution can be seen as a rebuke to presidential statements describing the press as an "enemy of the people." 

The Fake News hates me saying that they are the Enemy of the People only because they know it’s TRUE. I am providing a great service by explaining this to the American People. They purposely cause great division & distrust. They can also cause War! They are very dangerous & sick!

— Donald J. Trump (@realDonaldTrump) August 5, 2018

 

Additionally, about 350 media outlets have also published pieces today affirming the importance of a free press and rejecting the "enemy of the people" appellation.

Federal Judge Orders Return of Mother and Daughter Being Deported

Professor Ruthann Robson, City University of New York (CUNY) School of Law

In a terse written Order in Grace v. Sessions, United States District Judge for the District of Columbia, Emmet Sullivan reiterated his oral order  "requiring the Defendants to return “Carmen” and her daughter to the United States FORTHWITH" (emphasis in original).  Judge Sullivan's Order recounted that at the emergency hearing on August 8, "Defendants stated that they would not consent to staying the removal past 11:59 pm Thursday August 9, 2018, but specifically represented to the Court that “Carmen” and her daughter would not be removed prior to that time." The judge therefore set a hearing for 1:00pm on Thursday, during which it was learned that Carmen and her daughter were being removed from the country by plane. The Judge's Order concluded:

it is

HEREBY ORDERED that the Defendants shall return “Carmen” and her daughter to the United States FORTHWITH; and it is

FURTHER ORDERED that in the event that the Defendants do not fully comply with this Order, Defendants Attorney General Jefferson Sessions, III; Secretary of the Department of Homeland Security Kirstjen M. Nielsen; U.S. Citizenship and Immigration Service Director Lee Francis Cissna; and Executive Office of Immigration Review Director James McHenry, preferably accompanied by their attorneys, shall be ORDERED to appear in Court to SHOW CAUSE why they should not be held in CONTEMPT OF COURT; and it is

FURTHER ORDERED that the Defendants shall file a status report on the docket in this case by no later than 5:00 pm August 10, 2018, informing the Court of the Defendants’ compliance with this Order.

SO ORDERED.

[emphasis in original].

The complaint in the case challenges expanded "expedited removal" for asylum seekers whose claims are based on gang violence or domestic violence, with statutory claims for relief augmented by separation of powers arguments and a constitutional claim of violation of due process.

Daily Read: Actually, There is No Liberal Case for Kavanaugh

In an op-ed in the Los Angeles Times  Yale Law Professors David Singh Grewal, Amy Kapczynski and Issa Kohler-Hausmann argue that there is no liberal "case for Kavanaugh," the President's nominee for Supreme Court Justice.

They conclude

Trump’s nominations for the high court will have grave, long-lasting effects on the nation. Let the debate over Kavanaugh’s confirmation focus on the issues, not on the pedigree or manners of a judge who, as a justice, will almost surely work to undermine decades of settled judicial precedent in a way no liberal should be willing to condone.

Moreover, they speculate that liberal voices supporting the nominee may simply be currying favor:

Perhaps liberals praise Kavanaugh in order to gain favor with him. If confirmed, he will be in a position of great power in the legal world for decades to come, able to influence whose views are cited in judicial opinions and whose clerkship candidates are hired.

Meanwhile, it was reported that 74 protesters objecting to the nominee were arrested at the Hart Senate Office Building for crowding the halls.

 

Complaint Challenges Child-Parent Separation Policy and Implementation

Professor Ruthann Robson, City University of New York (CUNY) School of Law

In the complaint in M.G.U. v. Kirstjen Nielsen, three adult plaintiffs challenge the parent-child separation policy implemented by Homeland Security for persons seeking asylum. Recall that in early June, a federal judge ruled in Li v. ICE that the constitutional claims in similar complaint survived a motion to dismiss. The complaint in M.G.U. comes after increased publicity and outcry regarding the practice, with President Trump issuing an Executive Order changing the policy. However, the EO does not mention family reuinification and it is as yet unclear whether that will occur for parents and children who have already been separated (or whether the children will now be treated as "unaccompanied minors.")

The complaint alleges that that the government actors have violated the plaintiffs Fifth Amendment Due Process rights in two ways. First, the complaint alleges that it is a violation of due process to inflict punishment on civil detainees. In this regard, the separation is alleged to be punishment and includes this allegation:

The employees and agents who Defendants deploy to interact with parents and children in immigration detention facilities sadistically tease and taunt parents and children with the prospect of separation, and do so using words and tones indicating that Defendants’ employees and agents enjoy the pain and suffering that the very idea of separation causes to parents and children.

Second, the complaint alleges that the separation violates the due process right of family integrity, similar to the judge's finding in Li v. ICE.

Most likely this is only the beginning of challenges to the parent-child separation practice.

 

 

 

Federal Judge Allows Complaint Against ICE's Parent-Child Separation Policy

Professor Ruthann Robson, City University of New York (CUNY) School of Law

In his Order in L. v. United States Immigration and Customs Enforcement (ICE), Southern District of California United States District Judge Dana Sabraw denied the government's motion to dismiss the constitutional claim challenging ICE's separation of plaintiff parents and children at the border.

Judge Sabraw first found that the complaint was not moot because the government defendants "have not shown that Ms. L. was released from detention and reunited with her daughter for reasons other than this litigation," and thus "the voluntary cessation exception applies to this case."

In considering whether the complaint's allegations of a denial of due process under the Fifth Amendment should be dismissed, Judge Sabraw discussed the bedrock principles that the Constitution applies to non-citizens within the United States and that the Due Process Clause includes a "right to family integrity or to familial association." Judge Sabraw distinguished other cases in the immigration context finding that here the plaintiffs were detained with their children:

Here, the Court is faced with Plaintiffs who present different circumstances, but each Plaintiff has demonstrated that the right to family integrity encompasses her particular situation. According to the allegations in the Amended Complaint, Ms. L. did everything right. She and her child presented at the port of entry and requested asylum. She passed a credible fear screening interview, was taken out of expedited removal proceedings, and placed in removal proceedings before an IJ to pursue her asylum claim. Ms. C., by contrast, did not do everything right. She committed a crime by entering the United States illegally, and was prosecuted and imprisoned for her transgression: 25 days in custody for misdemeanor violation of 8 U.S.C. § 1325 (illegal entry). However, having served her sentence, Ms. C. was then returned to ICE detention to pursue her asylum claim, as she too had passed a credible fear screening. Ms. C., therefore, is on equal footing with Ms. L. for purposes of pursuing her due process claim. Ms. L.’s claim is based on the initial separation from her child, while Ms. C.’s claim is based on the continued separation from her child. Both claims focus on government conduct in separating families during removal proceedings.

Judge Sabraw applied the "shocks the conscience" test for due process and elaborated that due process protects against "governmental conduct that violates the “decencies of civilized conduct," interferes with rights “‘implicit in the concept of ordered liberty," and is so “‘brutal’ and ‘offensive’ that it [does] not comport with traditional ideas of fair play and decency"(citing cases).

Judge Sabraw recounted the allegations of trauma for both parents and children, and concluded:

These allegations call sharply into question the separations of Plaintiffs from their minor children. This is especially so because Plaintiffs allegedly came to the United States seeking shelter from persecution in their home countries, and are seeking asylum here. For Plaintiffs, the government actors responsible for the “care and custody” of migrant children have, in fact, become their persecutors. This is even more problematic given Plaintiffs’ allegations and assertions that there is a government practice, and possibly a forthcoming policy, to separate parents from their minor children in an effort to deter others from coming to the United States. This alleged practice is being implemented even when parents like Ms. L. and Ms. C. have passed credible fear interviews, and therefore, are positioned to present asylum claims meriting consideration by an IJ in their removal proceedings. These allegations sufficiently describe government conduct that arbitrarily tears at the sacred bond between parent and child, and is emblematic of the “exercise of power without any reasonable justification in the service of an otherwise legitimate governmental objective[.]” [citation omitted] Such conduct, if true, as it is assumed to be on the present motion, is brutal, offensive, and fails to comport with traditional notions of fair play and decency. At a minimum, the facts alleged are sufficient to show the government conduct at issue “shocks the conscience” and violates Plaintiffs’ constitutional right to family integrity. Accordingly, Defendants’ motion to dismiss Plaintiffs’ due process claim is denied.

Judge Sabraw did dismiss the counts alleging a violation of the Administrative Procedure Act (finding "Plaintiffs have failed to allege facts sufficient to show “final agency action” subject to review under the APA") and a violation of the Asylum Act (finding no authority for a private right of action). 

But the claim for a Due Process Clause violation will proceed as the United States government seems to arguing family separation is a permanent policy.

[image: "Cloak of Conscience" by Anna Chromy, via]

 

Federal Judge Finds First Amendment Violation in Presidential Blocking on Twitter

Professor Ruthann Robson, City University of New York (CUNY) School of Law

In her Opinion in Knight First Amendment Institute v. Trump, United States District Judge for the Southern District of New York, Naomi Reice Buchwald, found that the President's Twitter account, @realdonaldtrump, is in violation of the First Amendment when it blocks other Twitter users based on their political views.

Judge Buchwald's 75 page opinion is well-structured and well-reasoned, proceeding through the multiple and complex issues posed by the novel issue. The parties' extensive Stipulation formed the basis of the summary judgment order.

Judge Buchwald first found that the named plaintiffs and organizational plaintiff had standing as to both the President and Dan Scavino, the White House Social Media Director with access to the Twitter account. But she granted summary judgment in favor of  Defendant Sarah Huckabee Sanders, who did not have access to the Twitter account (and Hope Hicks, no longer at the White House, was dismissed as a Defendant).

On the First Amendment issue, Judge Buchwald concluded that the Twitter account was governmental in nature as was the act of blocking other Twitter users. The judge rejected the argument that blocking was not state action because the blocking functionality was afforded every user: "but the power to exclude is also one afforded generally to every property owner. When a government acts to 'legally preserve the property under its control for the use to which it is dedicated,' it behaves 'like the private owner of property.'" She also rejected the argument that because the Twitter account was begun in 2009 it was not governmental now:

Here, the President and Scavino’s present use of the @realDonaldTrump account weighs far more heavily in the analysis than the origin of the account as the creation of private citizen Donald Trump. That latter fact cannot be given the dispositive weight that defendants would ascribe to it. Rather, because the President and Scavino use the @realDonaldTrump account for governmental functions, the control they exercise over it is accordingly governmental in nature.

 Indeed, quoting from the parties' Stipulation, the Judge recounted:

With the assistance of Mr. Scavino in certain instances, President Trump uses @realDonaldTrump, often multiple times a day, to announce, describe, and defend his policies; to promote his Administration’s legislative agenda; to announce official decisions; to engage with foreign political leaders; to publicize state visits; to challenge media organizations whose coverage of his Administration he believes to be unfair; and for other statements, including on occasion statements unrelated to official government business. President Trump sometimes uses the account to announce matters related to official government business before those matters are announced to the public through other official channels.” Stip. ¶ 38. “For example, the President used @realDonaldTrump to announce on June 7, 2017, for the first time, that he intended to nominate Christopher Wray for the position of FBI director.” Stip. ¶ 38.

 But the real issue for the forum analysis was not the President's tweets, which the Judge held to be "government speech" not subject to First Amendment constraints as the United States Supreme Court recently explained in Walker v. Texas Division, Sons of Confederate Veterans. 

Instead, the "interactive space associated with each of the President’s tweets is not government speech and is properly analyzed under the Supreme Court’s forum precedents," and, Judge Buchwald concluded, is a "designated public forum."

As such, the designated public forum is subject to the First Amendment requirement that any governmental restrictions must be "narrowly drawn to achieve a compelling state interest.”

Here, the individual plaintiffs were indisputably blocked as a result of viewpoint discrimination. The record establishes that “[s]hortly after the Individual Plaintiffs posted the tweets . . . in which they criticized the President or his policies, the President blocked each of the Individual Plaintiffs,” Stip. ¶ 53, and defendants do “not contest Plaintiffs’ allegation that the Individual Plaintiffs were blocked from the President’s Twitter account because the Individual Plaintiffs posted tweets that criticized the President or his policies.”

This viewpoint discrimination is impermissible, Judge Buchwald concluded, and not justified by any personal First Amendment right advanced by the President. Judge Buchwald distinguished "muting" and "blocking" on Twitter - - - which the President had argued were indistinguishable - - - and concluded:

The audience for a reply extends more broadly than the sender of the tweet being replied to, and blocking restricts the ability of a blocked user to speak to that audience. While the right to speak and the right to be heard may be functionally identical if the speech is directed at only one listener, they are not when there is more than one.

Finally, Judge Buchwald rejected the argument that the court categorically lacked authority to enjoin the President: "No government official, after all, possesses the discretion to act unconstitutionally." Nevertheless, she  decided that a declaratory judgment should suffice: "we must assume that the President and Scavino will remedy the blocking we have held to be unconstitutional."

 

 

Stormy Daniels Sues Donald Trump for Defamation

Professor Ruthann Robson, City University of New York (CUNY) School of Law

In her complaint, Stephanie Clifford, a/k/a Stormy Daniels has sued Donald Trump in his individual capacity for defamation, based on his tweet responding to her allegations that she was threatened.

 

A sketch years later about a nonexistent man. A total con job, playing the Fake News Media for Fools (but they know it)! https://t.co/9Is7mHBFda

— Donald J. Trump (@realDonaldTrump) April 18, 2018

 

The tweet was actually a "quote tweet" retweeting this reply to an earlier Trump tweet:

Oops! This is awkward! @StormyDaniels’s Ex 😳#IDTheThug pic.twitter.com/GgLSxm2EJZ

— Deplorably🏴󠁧󠁢󠁳󠁣󠁴󠁿Scottish (@ShennaFoxMusic) April 18, 2018

The one-count complaint avers that Trump is not only attacking the truthfulness of Clifford, but also accusing her of a crime: fabricating a crime and an assailant, both of which are crimes under New York law. The complaint alleges that Trump "made his statement either knowing it was false, had serious doubts about the truth of his statement, or made the statement with reckless disregard for its truth or falsity." The complaint avers that not only has Clifford's reputation been damaged, but that she is receiving threats since Trump's statement and has hired bodyguards to protect her.

Recall that in a separate lawsuit, Clifford has sued Trump's personal attorney Michael Cohen for defamation, raising the somewhat usual issues surrounding the First Amendment doctrine in defamation given that Stormy Daniels is a public figure and the matter is one of public concern.

However, the Clifford lawsuit against Trump while he is President also raises the specter of executive immunity. Recall that in Zervos v. Trump, a similar lawsuit for defamation against Trump filed in New York state court by Summer Zervos, the judge held that the lawsuit could proceed; the judge found that the rule in the United States Supreme Court's unanimous 1997 decision of Clinton v. Jones holding that then-President Clinton subject to suit in federal court extended to state court. 

One difference in the Clifford suit is that Trump made the allegedly defamatory statement while President; the statement in Zervos was made as a candidate (and the acts in Clinton v. Jones occurred before Bill Clinton became President). 

Also at issue could be the "status" of the Trump tweet: is it an "official statement"?  Or not even worth noting?

Another Federal Judge Enjoins President's DACA Rescission

Professor Ruthann Robson, City University of New York (CUNY) School of Law

In a 60 page Memorandum Opinion in NAACP v. Trump, United States District Judge for the District of Columbia, Judge John Bates "vacated" the Department of Homeland Security's decision to rescind the DACA program, but stayed its order of vacatur for 90 days "to afford DHS an opportunity to better explain its view that DACA is unlawful."

Recall that in February Judge Nicholas Garaufis of the Eastern District of New York granted a preliminary injunction against the rescission of DACA and also recall that Judge Alsup of the Northern District of California issued a preliminary injunction in January which the government is appealing.

Judge Bates' decision rests on an application of the Administrative Procedure Act (APA), finding that the decision by DHS to rescind DACA, the Deferred Action for Childhood Arrivals program, covering 800,000 people in the United States who are not citizens but who have been residents since childhood., was "arbitrary and capricious" because the Department failed adequately to explain its conclusion that the program was unlawful.  Judge Bates stated that "neither the meager legal reasoning nor the assessment of litigation risk provided by DHS to support its rescission decision is sufficient to sustain termination of the DACA program."

Judge Bates held that the "litigation risk" argument, which would would render the decision to rescind presumptively  unreviewable, was not independent of the reality that the "rescission was a general enforcement policy predicated on DHS’s legal determination that the program was invalid when it was adopted." This legal determination is what raises the constitutional issue: DHS determined that DACA lacked constitutional authority. Although, as Judge Bates noted, "it seems that no court has yet passed judgment on DACA’s constitutionality."

Thus, Judge Bates gave DHS more time to make it arguments that DACA lacked constitutional (and statutory) authority to support its rescission decision, and also deferred ruling on the plaintiffs' constitutional challenges to the rescission as violating due process and equal protection.