Monday, November 26, 2018

SCOTUS Oral Argument Preview: Excessive Fines and Forfeiture

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).

 

November 26, 2018 in Current Affairs, Due Process (Substantive), Fourteenth Amendment, Fundamental Rights, Supreme Court (US) | Permalink | Comments (0)

Friday, November 23, 2018

District Judge Enjoins Mississippi Abortion Law as Unconstitutional

In an opinion in Jackson Women's Health Organization v. Currier, United States District Judge Carlton Reeves enjoined the Mississippi law banning abortions after 15 weeks as unconstitutional.

Judge Reeves had previously entered a temporary restraining order, which this order and opinion makes permanent. Judge Reeves holds that Mississippi's H.B. 1510 is a clearly unconstitutional violation of due process under Planned Parenthood of Southeastern Pennsylvania v. Casey (1992) which makes viability the marker before which states may not ban abortions. Judge Reeves's opinion then asks "So, why are we here?" The opinion answers its own query by explaining that "the State of Mississippi contends that every court who ruled on a case such as this “misinterpreted or misapplied prior Supreme Court abortion precedent," and argues that the bill only "regulates" abortions. Judge Reeves concluded that the State "characterization" of the law as a regulation was incorrect; the law's very title stated it was "to prohibit." Additionally, Judge Reeves concluded:

The State is wrong on the law. The Casey court confirmed that the “State has legitimate interests from the outset of the pregnancy in protecting the health of the woman and the life of the fetus that may become a child” and it may regulate abortions in pursuit of those legitimate interests.Those regulations are constitutional only if they do not place an undue burden on a woman’s right to choose an abortion.But “this ‘undue burden’/‘substantial obstacle’ mode of analysis has no place where, as here, the state is forbidding certain women from choosing pre-viability abortions rather than specifying the conditions under which such abortions are to be allowed.”There is no legitimate state interest strong enough, prior to viability, to justify a ban on abortions.

[footnotes omitted]. 

    Judge Reeves also expressed "frustration" with the Mississippi legislature passing a law it knew was unconstitutional, "aware that this type of litigation costs the taxpayers a tremendous amount of money," to "endorse a decades-long campaign, fueled by national interest groups, to ask the Supreme Court to overturn Roe v. Wade."  Judge Reeves chastised the Mississippi Legislature for its "disingenuous calculations," augmented with a footnote (n.40) that begins "The Mississippi Legislature has a history of disregarding the constitutional rights of its citizens," and followed by citation and parenthetical explanations of a half-dozen cases.

    Judge Reeves' concluding section to the seventeen page opinion reiterates some of these concerns and adds that "With the recent changes in the membership of the Supreme Court, it may be that the State believes divine providence covered the Capitol when it passed this legislation. Time will tell." Judge Reeves specifically mentions the amicus brief of women in the legal profession regarding their abortions in Whole Woman's Health v. Hellerstedt (2016), and also adds:

The fact that men, myself included, are determining how women may choose to manage their reproductive health is a sad irony not lost on the Court. As Sarah Weddington argued to the nine men on the Supreme Court in 1971 when representing “Jane Roe,” “a pregnancy to a woman is perhaps one of the most determinative aspects of her life.”As a man, who cannot get pregnant or seek an abortion, I can only imagine the anxiety and turmoil a woman might experience when she decides whether to terminate her pregnancy through an abortion. Respecting her autonomy demands that this statute be enjoined.

[footnotes omitted].

November 23, 2018 in Abortion, Due Process (Substantive), Family, Federalism, Fourteenth Amendment, Fundamental Rights, Gender, Reproductive Rights | 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.

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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 9, 2018

Seventh Circuit Upholds Wisconsin's Butter-Grading System

The Seventh Circuit last week upheld Wisconsin's butter-grading system against Dormant Commerce Clause, due process, and equal protection challenges. The ruling means that Wisconsin's butter-grading system stays on the books.

The case, Minerva Dairy v. Harsdorf, took on Wisconsin's law for grading butter, which makes it unlawful "to sell . . . any butter at retail unless it has been graded." To satisfy this requirement, butter may be graded either by a Wisconsin-licensed grader, or by the USDA voluntary butter-grading program. The plaintiff, an Ohio butter producer, argued that the law violated the Dormant Commerce Clause, due process, and equal protection.

The Seventh Circuit disagreed. The court ruled that the law didn't discriminate against interstate commerce, and so didn't violate the Dormant Commerce Clause. (The court didn't even apply Pike v. Bruce Church balancing, because the law didn't discriminate on its face or in effect.) The court also said that Wisconsin's butter-grading-licensing standards, which require a person to come to Wisconsin to test to be a Wisconsin-certified butter-grader, didn't discriminate, either (even though a would-be butter-grader who lives in or close to Wisconsin can get there easier than a would-be grader who lives farther away).

The court rejected the due process and equal protection challenges, too, because the law satisfied rational basis review.

October 9, 2018 in Cases and Case Materials, Commerce Clause, Dormant Commerce Clause, Due Process (Substantive), Equal Protection, News, Opinion Analysis | Permalink | Comments (0)

Wednesday, September 5, 2018

Texas Federal Judge Rules Texas Fetal Remains Law Unconstitutional

In an extensive opinion in Whole Woman's Health v. Smith, District Judge David Alan Ezra ruled that Texas statute and regulations requiring internment (or cremation) for "embryonic and fetal tissue disposal" were unconstitutional.  Judge Ezra's opinion occurred after a one-week bench trial in which the issue of cost of compliance was excluded.

Judge Ezra found that the Texas laws violated both the Equal Protection and Due Process Clauses of the Fourteenth Amendment.

On the equal protection issue, Judge Ezra found that the Texas laws' distinction between "pre-implantation and post-implantation embryos and the facilities that handle them" was not rationally related to the legitimate government interest in "respecting potential life." Thus, even under the rational basis test, the laws did not survive.

On the due process issue, Judge Ezra applied the doctrine from the Supreme Court's decision in Whole Woman's Health v. Hellerstedt, and found that the Texas laws

place substantial obstacles in the path of women seeking pregnancy-related medical care, particularly a previability abortion, while offering minimal benefits.

By endorsing one view of the status and respect to be accorded to embryonic and fetal tissue remains, the State imposes intrusive burdens upon personal decisions concerning procreation, especially upon the right of the woman to chose to have an abortion. And most importantly, the evidence in this case overwhelmingly demonstrated that if the challenged laws were to go into effect now, they would likely cause a near catastrophic failure of the health care system designed to serve women of childbearing age within the State of Texas.

This failure, Judge Ezra makes clear, is not simply for women seeking an abortion, but for all women seeking pregnancy care for complications.

Thus the court declared the laws and implementing regulations unconstitutional and enjoined their enforcement.

September 5, 2018 in Abortion, Due Process (Substantive), Equal Protection, Gender, Medical Decisions, Opinion Analysis | Permalink | Comments (0)

Monday, August 6, 2018

Federal Judge Declares Cash Bail Practice in New Orleans Unconstitutional

 In his opinion in Caliste v. Cantrell, United States District Judge for the Eastern District of Louisiana Eldon Fallon declared the bail practices of Judge Cantrell, an Orleans Parish Criminal District Magistrate Judge, unconstitutional as violative of due process under the Fourteenth Amendment.

After disposing of questions of justiciability and absention, Judge Fallon considered the cash bail practices in which the parish judge would never inquire regarding defendants' ability to post bail or provide reasoning for a rejection of alternative conditions of release, and would tell "public defenders that he would hold them in contempt when they have attempted to argue for lower bond amounts or RORs for their clients.” 

Judge Fallon found that the practices violated procedural due process, applying the well-settled balancing test of Matthews v. Eldridge (1976).  Judge Fallon concluded "that in the context of hearings to determine pretrial detention Due Process requires:

1) an inquiry into the arrestee’s ability to pay, including notice of the importance of this issue and the ability to be heard on this issue;
2) consideration of alternative conditions of release, including findings on the record applying the clear and convincing standard and explaining why an arrestee does not qualify for alternative conditions of release; and
3) representative counsel.

Judge Fallon also found there was a substantive due process violation, analyzing it in a section entitled "conflict of interest." Judge Fallon relied in part on Caperton v. Massey (2009), noting that there need not be proof of "actual bias," but there should be an inquiry “whether, ‘under a realistic appraisal of psychological tendencies and human weakness,’ the interest ‘poses such a risk of actual bias or prejudgment that the practice must be forbidden if the guarantee of due process is to be adequately implemented.’”  In the Orleans parish, the problem was that the Orleans judge not only set bail but also managed "the Judicial Expense Fund, a portion of which comes from fees levied on commercial surety bonds." Judge Fallon found this was a conflict of interest rising to a due process violation: "Judge Cantrell’s institutional incentives create a substantial and unconstitutional conflict of interest when he determines their ability to pay bail and sets the amount of that bail."

Thus, the federal court entered summary judgment in favor of the plaintiffs, declaring the cash bail practices of  the Orleans parish judge unconstitutional.

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[image via]

 

 

August 6, 2018 in Courts and Judging, Criminal Procedure, Due Process (Substantive), Fourteenth Amendment, Procedural Due Process | Permalink | Comments (0)

Monday, July 9, 2018

Daily Read: The Fourteenth Amendment (on its 150th Anniversary)

The Fourteenth Amendment was ratified on July 9, 1868. 

Here's the text:

Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Section 2. Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State.

Section 3. No person shall be a Senator or Representative in Congress, or elector of President and Vice President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may, by a vote of two-thirds of each House, remove such disability.

Section 4. The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned. But neither the United States nor any State shall assume or pay any debt or obligation incurred in aid of insurrection or rebellion against the United States, or any claim for the loss or emancipation of any slave; but all such debts, obligations and claims shall be held illegal and void.

Section 5. The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.

 

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[images National Archives via]

 

July 9, 2018 in Due Process (Substantive), Equal Protection, Fourteenth Amendment, Fundamental Rights, History, Privileges or Immunities: Fourteenth Amendment , Procedural Due Process, Race, Reconstruction Era Amendments | Permalink | Comments (0)

Tuesday, July 3, 2018

Federal District Judge Enjoins Tennessee's Revocation of Drivers License for Failure to Pay Court Debt

In an opinion in Thomas v. Haslam, United States District Judge for the Middle District of Tennessee, Aleta Trauger, has held unconstitutional Tennessee Code §40-24-105(b) which revokes the driver's license of any person who has failed to pay court debt for a year or more.

Judge Trauger had issued an extensive opinion in March, appended to the current opinion, detailing the issues, holding the plaintiffs presented a justiciable claim, certifying the class, and allowing for additional briefing on the summary judgment motions on the constitutional issues.

The constitutional challenge to the driver's license revocation is grounded in Griffin v. Illinois (1956) and its progeny, which, as Judge Trauger explained "implicates both Due Process and Equal Protection principles in ways that defy an easy application of the Court’s more general precedents involving either constitutional guarantee alone" and should not be subject to a "pigeonhole analysis" of either strict scrutiny or rational basis review. However, Judge Trauger ruled that under Sixth Circuit precedent, rational basis must be applied, "which asks only whether the challenged policy is rationally related to a legitimate government purpose." Yet in the context of distinctions based on indigence, this rational basis should be one of "extra care" if "a statute treats the rich better than the poor in a way that will affirmatively make the poor poorer."

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Judge Trauger reasoned that while the state has a legitimate interest in seeking to recoup court debt, revoking the driver's license of a person unable to pay the debt is not "effective." Moreover,

 the law is not merely ineffective; it is powerfully counterproductive. If a person has no resources to pay a debt, he cannot be threatened or cajoled into paying it; he may, however, become able to pay it in the future. But taking his driver’s license away sabotages that prospect. For one thing, the lack of a driver’s license substantially limits one’s ability to obtain and maintain employment. Even aside from the effect on employment, however, the inability to drive introduces new obstacles, risks, and costs to a wide array of life activities, as the former driver is forced into a daily ordeal of logistical triage to compensate for his inadequate transportation. In short, losing one’s driver’s license simultaneously makes the burdens of life more expensive and renders the prospect of amassing the resources needed to overcome those burdens more remote.

Thus, while a lenient standard, Judge Trauger held that the lack of an indigent exception in the driver's license revocation penalty for failure to pay court debt fails rational basis scrutiny

Additionally, Judge Trauger held that the Tennessee statute does not afford procedural due process and that a "driver facing revocation for nonpayment of court debt is entitled to a pre-revocation notice and determination related to his indigence," to be developed by the state.

While issuing an injunction against the statute's future enforcement, Judge Trauger ordered the state to "submit a plan, within 60 days, for lifting the revocations of drivers whose licenses were revoked under Tenn. Code Ann. § 40-24-105(b) and providing an appropriate process for reinstatement."

Or, of course, Tennessee could appeal.

July 3, 2018 in Due Process (Substantive), Equal Protection, Fourteenth Amendment, Opinion Analysis, Procedural Due Process | Permalink | Comments (0)

Monday, July 2, 2018

Federal Judge Dismisses Complaint Seeking Access to Literacy by School Children

In his opinion in Gary B. v. Snyder, United States District Judge for the Eastern District of Michigan Stephen Murphy dismissed a complaint alleging constitutional violations in the public schools in Detroit.

After finding the plaintiff students had standing and that the complaint against Governor Snyder and other officials was not barred by Eleventh Amendment immunity, Judge Snyder dismissed the Due Process Clause and Equal Protection Clause claims.

On the Due Process Clause claim, Judge Snyder noted that the constitutional right at issue is framed as "access to literacy" which "speaks to an opportunity" rather than simply literacy which is an "outcome of education." Using this definition, Judge Snyder distinguished the complaint from landmark cases such as San Antonio Independent School District v. Rodriguez (1973), rejecting "education" as a fundamental right. Nevertheless, applying the "standard" test to determine a fundamental right from Washington v. Glucksberg (1997) — "fundamental rights are only those 'objectively, deeply rooted in this Nation's history and tradition, and implicit in the concept of ordered liberty, such that neither liberty nor justice would exist if they were sacrificed'"— even through the lens of Obergefell v. Hodges (2015), Judge Snyder reasoned that fundamental rights are generally only "negative rights."

Conceivably, a case like this one could be argued on either positive- or negative- right theories. As a positive right, access to literacy (i.e., a minimally adequate education) is so important that the state is compelled to provide it. As a negative right, access to literacy is so important that the state may not hinder Plaintiffs' attempts to secure it.  ***

But a violation of negative rights is not what the Complaint truly seems to argue. The Complaint explains, in great detail, that the instruction and resources in Plaintiffs' schools are inadequate.

  256px-Paul_Constant_Soyer_-_Little_Girl_Reading_-_Walters_371621Judge Snyder reasoned that the Supreme Court's understanding of a "fundamental right," requires finding that neither liberty nor justice would exist absent state-provided literacy access, which would be "difficult to square with the fact that '[t]here was no federal or state-run school system anywhere in the United States as late as 1830.'" Thus, for Judge Snyder, the "ordered liberty" prong is tantamount to historical roots:

School districts at the time of the Constitution's ratification were formed 'when a group of farms came together and decided to construct a public building for schooling, where their children could gather and be taught reading, writing, and moral codes of instruction.' [citation omitted]  The history evinces a deep American commitment to education, but runs counter to the notion that ordered society demands that a state provide one.

Thus, he concluded:

The conditions and outcomes of Plaintiffs' schools, as alleged, are nothing short of devastating. When a child who could be taught to read goes untaught, the child suffers a lasting injury—and so does society. But the Court is faced with a discrete question: does the Due Process Clause demand that a State affirmatively provide each child with a defined, minimum level of education by which the child can attain literacy? Based on the foregoing analysis, the answer to the question is no.

Judge Murphy concluded that the Equal Protection Clause claim was similarly not founded. The court repeats that there is no fundamental right and further finds that there is no racial classification because there to be a "relevant comparator school" requires not only that the school in question have a different racial composition that the 97% African-American schools in Detroit but also that the school "experienced relevant state interventions" like the schools in Detroit. Thus, rational basis scrutiny applies at its most deferential — whether "there is any reasonably conceivable state of facts that could provide a rational basis for the classification" — and the plaintiffs did not plead "specific decisions Defendants made concerning Plaintiffs' schools that could have been made differently" and were thus irrational.

The dismissal of the complaint makes it ripe for appeal.

[image: Paul-Constant Soyer, Little Girl Reading (1864) via]

 

July 2, 2018 in Due Process (Substantive), Elections and Voting, Equal Protection, Fourteenth Amendment, Fundamental Rights, Opinion Analysis, Standing | Permalink | Comments (0)

Wednesday, June 27, 2018

District Judge Enjoins Administration's Child-Parent Separation Policy

In an opinion and order in Ms. L. v. United States Immigration and Enforcement (ICE), United States District Judge Dana Sabraw has found that the current Administration policies regarding separation of parents and children and reunification likely violate due process meriting a preliminary injunction.

Recall that in early June, Judge Sabraw denied a motion to dismiss in the same case finding that that there was sufficient claim of a due process violation, applying the "shocks the conscience" test.

This opinion reasserts that conclusion:

This practice of separating class members from their minor children, and failing to reunify class members with those children, without any showing the parent is unfit or presents a danger to the child is sufficient to find Plaintiffs have a likelihood of success on their due process claim. When combined with the manner in which that practice is being implemented, e.g., the lack of any effective procedures or protocols for notifying the parents about their childrens’ whereabouts or ensuring communication between the parents and children, and the use of the children as tools in the parents’ criminal and immigration proceedings,  a finding of likelihood of success is assured. A practice of this sort implemented in this way is likely to be “so egregious, so outrageous, that it may fairly be said to shock the contemporary conscience,” interferes with rights “‘implicit in the concept of ordered liberty[,]’” Rochin v. Cal., 342 U.S. 165, 169 (1952) (quoting Palko v. State of Conn., 302 U.S. 319, 325 (1937)), and is so “‘brutal’ and ‘offensive’ that it [does] not comport with traditional ideas of fair play and decency.” Breithaupt v. Abram, 352 U.S. 432, 435 (1957).

Judge Sabraw relied on the fact of separation and the government's failure to have a reunification plan, despite the June 23 Administration "Fact Sheet,"  that addressed not only removal but also"reunification for other purposes, such as immigration or asylum proceedings, which can take months." He stated that there was

no genuine dispute that the Government was not prepared to accommodate the mass influx of separated children. Measures were not in place to provide for communication between governmental agencies responsible for detaining parents and those responsible for housing children, or to provide for ready communication between separated parents and children. There was no reunification plan in place, and families have been separated for months.

Judge Sabraw's opinion clearly rests on the substantive due process claim violated by the governmental family separation policy, but also sounds in procedural due process:

the practice of separating these families was implemented without any effective system or procedure for (1) tracking the children after they were separated from their parents, (2) enabling communication between the parents and their children after separation, and (3) reuniting the parents and children after the parents are returned to immigration custody following completion of their criminal sentence. This is a startling reality. The government readily keeps track of personal property of detainees in criminal and immigration proceedings. Money, important documents, and automobiles, to name a few, are routinely catalogued, stored, tracked and produced upon a detainees’ release, at all levels—state and federal, citizen and alien. Yet, the government has no system in place to keep track of, provide effective communication with, and promptly produce alien children. The unfortunate reality is that under the present system migrant children are not accounted for with the same efficiency and accuracy as property. Certainly, that cannot satisfy the requirements of due process. See Santosky v. Kramer, 455 U.S. 745, 758-59 (1982) (quoting Lassiter v. Dept. of Soc. Services of Durham County, N.C., 452 U.S. 18, (1981)) (stating it is “‘plain beyond the need for multiple citation’ that a natural parent’s ‘desire for and right to the companionship, care, custody, and management of his or her children’ is an interest far more precious than any property right.”) (internal quotation marks omitted).

Judge Sabraw found that the government's procedures which place "the burden on the parents to find and request reunification with their children under the circumstances presented here is backwards," and that under the present circumstances, "the Government has an affirmative obligation to track and promptly reunify these family members."

 

June 27, 2018 in Due Process (Substantive), Executive Authority, Fifth Amendment, Opinion Analysis, Procedural Due Process | Permalink | Comments (0)

Tuesday, June 26, 2018

States Sue to Challenge Federal Child-Parent Separation Policy

In a lengthy complaint in Washington v. United States, seventeen states (as well as the District of Columbia) have challenged the "Trump Administration's practice of refusing entry to asylum applicants who present at the Southwestern border ports of entry and its cruel and unlawful policy of forcibly separating families who enter the country along our Southwestern border."

The states — Washington, California, Maryland, Oregon, New Mexico, New Jersey, Iowa, Illinois, Minnesota, Rhode Island, New York, Vermont, North Carolina, and Delaware, and the Commonwealths of Massachusetts, Pennsylvania, and Virginia; and the District of Columbia — argue that the federal policy is unconstitutional as a violation of substantive due process, procedural due process, and equal protection, pursuant to the Fifth Amendment.

The substantive due process claim alleges that state residents who are parents have a liberty interest in the care, custody, and control of their children, and that minors who are residents have a reciprocal liberty interest in being with their parents, as well as a right to be free of unreasonable risk of harm from the government separating them from their parents, detaining them, and housing them in unlicensed facilities.

The procedural due process claim alleges that the federal government has deprived residents and future residents of their liberty with "no hearing whatsoever."

The equal protection claim alleges that the federal government has infringed on a fundamental right and "targets" individuals based on "nationality or ethnicity," and is thus subject to strict scrutiny, or in the alternative, disparately impacts immigrants from Latin America based on animus.

The complaint also has two statutory counts: one under the Administrative Procedure Act and one under the laws regulating asylum.

The allegations in the 128 page complaint also seek to establish standing on behalf of each of the States.

This complaint joins the challenges we previously discussed in M.G.U. v. Kirstjen Nielsen  and a federal judge's June 7 decision in L. v. ICE denying a motion to dismiss a similar complaint.

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[image via]

 

 

June 26, 2018 in Due Process (Substantive), Equal Protection, Executive Authority, Fifth Amendment, International, Procedural Due Process | Permalink | Comments (0)

Wednesday, June 20, 2018

Complaint Challenges Child-Parent Separation Policy and Implementation

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.

 

 

 

June 20, 2018 in Courts and Judging, Current Affairs, Due Process (Substantive), Fifth Amendment | Permalink | Comments (0)

Monday, June 18, 2018

Third Circuit Upholds School Policy on Gender Identity Use of Facilities

In its opinion in Doe v. Boyertown Area School District a unanimous panel of the Third Circuit upheld the school district's gender policy for facilities, affirming the district judge, against a challenge by some students that the inclusive policy violated their constitutional "bodily privacy" rights and Title IX.

The school policy allowed "transgender students to use bathrooms and locker rooms that are consistent with the students’ gender identities as opposed to the sex they were determined to have at birth." The court rejected the argument of some non-transgender students that the policy violated their right to privacy. Even if the school policy were to be subject to strict scrutiny, there was a compelling interest in the protection of transgender students and the means chosen were narrowly tailored. In assessing the claim of the cisgendered students who challenged the school policy, the court stated:

we decline to recognize such an expansive constitutional right to privacy—a right that would be violated by the presence of students who do not share the same birth sex. Moreover, no court has ever done so. As counsel for the School District noted during oral argument, the appellants are claiming a very broad right of personal privacy in a space that is, by definition and common usage, just not that private. School locker rooms and restrooms are spaces where it is not only common to encounter others in various stages of undress, it is expected. The facilities exist so that students can attend to their personal biological and hygienic needs and change their clothing.

Moreover, the court rejected the challengers' reliance on "a case involving an adult stranger sneaking into a locker room to watch a fourteen year-old girl shower," noting that it was "simply not analogous to the present situation "involving transgender students using facilities aligned with their gender identities after seeking and receiving approval from trained school counselors and administrators."

The court likewise rejected the Title IX and state tort law claims, again affirming the district judge.

While the court discusses and relies upon Whitaker v. Kenosha Unified School District, in which the Seventh Circuit in 2017 affirmed a preliminary injunction requiring the school to allow transgender students to access facilities consistent with their gender identity, the policy upheld here was the Boyertown school district's affirmative policy allowing such access. Thus, there seems to be a clear path for school districts to avoid losing if there is litigation.

 

June 18, 2018 in Due Process (Substantive), Fourteenth Amendment, Gender, Opinion Analysis, Sexuality | Permalink | Comments (0)

Wednesday, June 13, 2018

Second Circuit: Police Use of LRAD May Violate Fourteenth Amendment

In its unanimous opinion in Edrei v. Maguire (Bratton), a panel of the Second Circuit upheld the the denial of a motion to dismiss a complaint alleging excessive force under the Fourteenth Amendment's Due Process Clause by police officers using a LRAD - - - long-range acoustic device - - - during a protest. The defendants claimed both that the LRAD did not constitute excessive force and that they were entitled to qualified immunity because it had not been clearly established at the time of the 2014 protest that using a LRAD could be excessive force.

Chief Judge Robert Katzmann's opinion discussed LRAD, noting that the New York Police Department was using a "portable Model 100X, which also has loudspeaker and area denial functions."

The 100X’s product sheet boasts that it has a maximum volume of 136 decibels at one meter and the manufacturer guidelines caution not to use it within 10 to 20 meters of people. A diagram on the 100X’s control panel shows a red beam emanating from the front of the device and instructs: “DO NOT ENTER WITHIN 10 METERS DURING CONTINUOUS OPERATION.”

The plaintiffs, who were subjected to the LRAD during a protest in New York after "a Staten Island grand jury declined to indict the NYPD officer who placed Eric Garner, an unarmed black man, in a fatal chokehold." During the protest,

with no warning, NYPD officers discharged pepper spray. Several plaintiffs who had been watching the arrests began to flee. Seconds later the wail of a high‐pitched alarm began pulsing though the streets. The defendants had activated the LRAD’s area denial function. According to plaintiffs, they had not been ordered to disperse and no such order is audible on the video.

900px-Long_Range_Acoustic_Device_500X_in_New_York_CityThe plaintiffs reported physical injuries, including significant ear pain, prolonged migraines, vertigo, and ringing in the ears, and most sought medical treatment.

Judge Katzmann's opinion rejected the defendants' argument that the LRAD could not constitute "excessive force."  The opinion relied on the "shocks the conscience" test as it had been explained in the Second Circuit with regard to excessive force as considering several factors: “the need for the application of force, the relationship between the need and the amount of force that was used, the extent of the injury inflicted, and whether the force was . . . [inflicted] maliciously or sadistically.”  The court held that this Second Circuit precedent was not changed by Kingsley v. Hendrickson, 135 S. Ct. 2466 (2015), decided after the 2014 protest. Moreover, applying the standard to the allegations, the security threat was low, the proportionality of the force used was "stark," there were significant injuries, and there are no allegations that the police officers attempted to temper their use of force.

The court also rejected the police officers' claim to qualified immunity. The defendants argued that it was not clearly established at the time of the 2014 protest that "using force in crowd control violates due process."

But that is like saying police officers who run over people crossing the street illegally can claim immunity simply because we have never addressed a Fourteenth Amendment claim involving jaywalkers. This would convert the fair notice requirement into a presumption against the existence of basic constitutional rights. Qualified immunity doctrine is not so stingy.

Additionally, the court discussed the protestors First Amendment rights and stated that "Were this not enough, a wealth of cases inform government officials that protesters enjoy robust constitutional protections."

The court did stress that the opinion was a "narrow" one.  As an interlocutory appeal from the denial of a motion to dismiss, this is expected. Nevertheless, the opinion is certainly a victory for the plaintiffs in their due process challenge to the use of LRAD.

[image: LRAD 500 x in NYC during 2011 via]

 

June 13, 2018 in Courts and Judging, Due Process (Substantive), First Amendment, Fourteenth Amendment, Opinion Analysis, Web/Tech | Permalink | Comments (0)

Thursday, June 7, 2018

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

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.

Anna_Chromy_Cloak_Of_ConscienceJudge 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]

 

June 7, 2018 in Courts and Judging, Current Affairs, Due Process (Substantive), Family, Fifth Amendment, Opinion Analysis | Permalink | Comments (0)

Sunday, April 22, 2018

Puerto Rico District Judge Rules on Gender-Marker Birth Certificates

In a relatively brief opinion in Arroyo-Gonzalez v. Rossello-Nevares, United States District Judge for the District of Puerto Rico Judge Carmen Consuelo Cerezo ruled that the present practices of the Commonwealth of Puerto Rico regarding change in birth certificates was unconstitutional.

Here is the essence of Judge Cerezo's opinion:

By permitting plaintiffs to change the name on their birth certificate, while prohibiting the change to their gender markers, the Commonwealth forces them to disclose their transgender status in violation of their constitutional right to informational privacy. Such forced disclosure of a transgender person’s most private information is not justified by any legitimate government interest. It does not further public safety, such that it would amount to a valid exercise of police power. To the contrary, it exposes transgender individuals to a substantial risk of stigma, discrimination, intimidation, violence, and danger. Forcing disclosure of transgender identity chills speech and restrains engagement in the democratic process in order for transgenders to protect themselves from the real possibility of harm and humiliation. The Commonwealth’s inconsistent policies not only harm the plaintiffs before the Court; it also hurts society as a whole by depriving all from the voices of the transgender community.

The judge thus set out the process to enable a new birth certificate to be issued in Puerto Rico.

 

April 22, 2018 in Due Process (Substantive), Gender, Opinion Analysis, Privacy | Permalink | Comments (0)

Thursday, April 19, 2018

Sixth Circuit Strikes Ohio Statute Defunding Planned Parenthood

In its opinion in Planned Parenthood of Greater Ohio v. Himes, a unanimous Sixth Circuit panel, affirming the district judge, found Ohio 's Revised Code § 3701.034 unconstitutional under the unconstitutional conditions doctrine. The Ohio statute prohibited all funds it receives through six non-abortion-related federal health programs, such as the Violence Against Women Act, from being used to fund any entity that performs or promotes nontherapeutic abortions, or becomes or continues to be an affiliate of any entity that performs or promotes nontherapeutic abortions. The statute was aimed at Planned Parenthood and similar organizations.

The state relied upon cases such as Maher v. Roe and Rust v. Sullivan, but the court's opinion, authored by Judge Helene White, stated:

Plaintiffs do not claim an entitlement to government funds. They acknowledge the government’s right to define the parameters of its own programs, and have complied with all program requirements. What they do claim is a right not to be penalized in the administration of government programs based on protected activity outside the programs.

Instead, Judge White wrote, the correct precedent was Agency for Int’l Dev. v. Alliance for Open Soc’y Int’l (AOSI) (2013). Recall that in the "prostitution-pledge" case, the United States Supreme Court held unconstitutional under the First Amendment a provision of a federal funding statute requiring some (but not other) organizations to have an explicit policy opposing sex work. For the Sixth Circuit, AOSI "reiterated that the government may not require the surrender of constitutional rights as a condition of participating in an unrelated government program." In short,

the government cannot directly prohibit Plaintiffs from providing and advocating for abortion on their own time and dime, [ and thus ] it may not do so by excluding them from government programs for which they otherwise qualify and which have nothing to do with the government’s choice to disfavor abortion.

The Sixth Circuit found that the Ohio statute violated unconstitutional conditions based on constitutional infringements of both the Due Process Clause and the First Amendment. On the due process issue, the court found that the due process right to an abortion was at issue. The court rejected the "importation" of the undue burden standard into this analysis, but also reasoned that even under the undue burden analysis, especially in the United States Supreme Court's most recent abortion ruling in Whole Woman's Health v. Hellerstedt (2016), the statute violated due process.

On the First Amendment claim, relating to the Ohio statute's denial of funds to any organization that promotes abortions, again the Sixth Circuit quoted Agency for Int’l Dev. v. Alliance for Open Soc’y Int’l (AOSI): the government does not "have the authority to attach ‘conditions that seek to leverage funding to regulate speech outside the contours of the program itself.’ "

While there is some potential for a circuit split given the Seventh Circuit's opinion in Planned Parenthood of Indiana, Inc. v. Commissioner of Indiana State Department of Health, 699 F.3d 962 (7th Cir. 2012), cert. denied, 569 U.S. 1004 (2013), the Sixth Circuit extensively analyzes the Seventh Circuit's opinion and concludes that because it was decided before Agency for Int’l Dev. v. Alliance for Open Soc’y Int’l (AOSI), it is no longer persuasive.

 

April 19, 2018 in Abortion, Due Process (Substantive), First Amendment, Fundamental Rights, Medical Decisions, Opinion Analysis, Recent Cases | Permalink | Comments (0)

Tuesday, April 17, 2018

SCOTUS Finds INA Deportation Provision for "Crime of Violence" Unconstitutionally Vague

In its opinion in Sessions v. Dimaya, the United States Supreme Court held that a portion of the definition of "crime of violence" in 18 U.S.C. §1, as applied in the deportation scheme of the Immigration and Nationality Act,  see 8 U. S. C. §§1227(a)(2)(A)(iii), 1229b(a)(3), (b)(1)(C), is unconstitutionally vague.

The Court's somewhat fractured opinion concluded that the residual clause, §16(b), which defines a “crime of violence” as “any other offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense" is unconstitutionally vague.

Justice Kagan's opinion was joined in its entirety by Justices Ginsburg, Breyer, and Sotomayor. Justice Gorsuch joined only Parts I, III, IV–B, and V, thus making these sections the opinion of the Court.

The Court's opinion relied on Johnson v. United States (2015), authored by Justice Scalia, in which the Court found a similar residual clause in the Armed Career Criminal Act (ACCA), defining “violent felony” as any felony that “otherwise involves conduct that presents a serious potential risk of physical injury to another,” 18 U. S. C. §924(e)(2)(B) unconstitutionally “void for vagueness” under the Fifth Amendment’s Due Process Clause.

The Court in Dimaya ruled that

§16(b) has the same “[t]wo features” that “conspire[d] to make [ACCA’s residual clause] unconstitutionally vague" {in Johnson}.  It too “requires a court to picture the kind of conduct that the crime involves in ‘the ordinary case,’ and to judge whether that abstraction presents” some not-well-specified-yet-sufficiently- large degree of risk. The result is that §16(b) produces, just as ACCA’s residual clause did, “more unpredictability and arbitrariness than the Due Process Clause tolerates.”

The United States and the dissenting opinions attempted to distinguish the INA provision from the ACCA provision in several ways. Kagan, writing for the Court in Part IV that "each turns out to be the proverbial distinction without a difference." 

34033716420_bd72e5fd56_zGiven Gorsuch's joining with the perceived more liberal-leaning Justices on the Court, his concurring opinion is sure to attract attention.  Gorsuch's substantial opinion (18 textual pages to Kagan's 25 page opinion for the Court and plurality), leans heavily on the foundations of due process, beginning

Vague laws invite arbitrary power. Before the Revolu­tion, the crime of treason in English law was so capa­ciously construed that the mere expression of disfavored opinions could invite transportation or death.

More importantly, Gorsuch disavows any notion that the context of immigration deportation merits any special consideration and that the Court's holding is narrow, stressing that the problem with the statute is the procedural one of failing to provide notice (and standards for judges) rather than the substantive choice by Congress.

Taken together with Johnson, the holding in Dimaya means that statutes must be much more precise when defining a "crime of violence" or risk being held unconstitutionally vague.

[image: caricature of Justice Neil Gorsuch by Donkey Hotey via]

April 17, 2018 in Courts and Judging, Criminal Procedure, Due Process (Substantive), Fifth Amendment, Interpretation, Opinion Analysis, Procedural Due Process, Recent Cases, Supreme Court (US) | Permalink | Comments (0)

Saturday, April 14, 2018

District Judge Holds Transgender Military Ban Subject to Strict Scrutiny

In her opinion and Order in Karnoski v. Trump, United States District Judge Marsha Pechman of the Western District of Washington has reaffirmed her previous preliminary injunction (December 2017) on the basis of the plaintiffs' likelihood to succeed on the merits of their Equal Protection, Due Process, and First Amendment claims in their challenge to the President's ban on transgender troops in the military, and further decided that the military ban is subject to strict scrutiny. (Recall that previous to Judge Pechman's preliminary injunction, United States District Judge for the District of Columbia Colleen Kollar-Kotelly in Doe v. Trump partially enjoined the president's actions and United States District Judge Marvin Garvis of the District of Maryland in Stone v. Trump issued a preliminary injunction against the United States military's ban on transgender troops and resources for "sex-reassignment" medical procedures).

The government's motion for summary judgment and to dissolve the preliminary injunction relied in large part on the President's new policy promulgated in March 2018. As Judge Pechman phrased it, the 2018 Presidential Memorandum

purports to "revoke" the 2017 Memorandum and “any other directive [he] may have made with respect to military service by transgender individuals,” and directs the Secretaries of Defense and Homeland Security to “exercise their authority to implement any appropriate policies concerning military service by transgender individuals.”

Nypl.digitalcollections.a20151f8-d3cf-5c25-e040-e00a18066189.001.wRejecting the government defendants' argument that the controversy was now moot, Judge Pechman concluded that the 2018 Memorandum and Implementation Plan "do not substantively rescind or revoke the Ban, but instead threaten the very same violations that caused it and other courts to enjoin the Ban in the first place." The judge acknowledged that there were a few differences, but was not persuaded by the government defendants' argument that the 2018 policy did not now mandate a “categorical” prohibition on service by openly transgender people.

Similarly, Judge Pechman found that the individual plaintiffs, the organizational plaintiffs, and the plaintiff State of Washington continued to have standing.

Most crucial in Judge Pechman's order is her decision that transgender people constitute a suspect class and thus the ban will be subject to strict scrutiny. (Recall that in the previous preliminary injunction, Judge Pechman ruled that transgender people were at a minimum a quasi-suspect class). In this opinion, she considers four factors:

  • whether the class has been “[a]s a historical matter . . . subjected to discrimination,”
  • whether the class has a defining characteristic that “frequently bears [a] relation to ability to perform or contribute to society,
  • whether the class exhibits “obvious, immutable, or distinguishing characteristics that define [it] as a discrete group,"
  • whether the class is “a minority or politically powerless.”

After a succinct analysis, she concludes that suspect class status is warranted and because the "Ban specifically targets one of the most vulnerable groups in our society," it  "must satisfy strict scrutiny if it is to survive."

However, Judge Pechman did not decide on the level of deference the government defendants should be accorded. Instead, she concluded that

On the present record, the Court cannot determine whether the DoD’s deliberative process—including the timing and thoroughness of its study and the soundness of the medical and other evidence it relied upon—is of the type to which Courts typically should defer.

However, she did agree with the government defendants that President Trump was not subject to injunctive relief, but did remain as a defendant for the purpose of declaratory relief.

Thus, Judge Pechman directed the parties to "proceed with discovery and prepare for trial on the issues of whether, and to what extent, deference is owed to the Ban and whether the Ban violates equal protection, substantive due process, and the First Amendment."

[image, Revolutionary War era soldier, NYPL, via]

 

April 14, 2018 in Courts and Judging, Current Affairs, Due Process (Substantive), Equal Protection, Executive Authority, Fifth Amendment, First Amendment, Gender, Mootness, Opinion Analysis, Sexuality, Standing | Permalink | Comments (0)

Tuesday, March 20, 2018

SCOTUS Hears Oral Arguments on First Amendment Challenge to Regulation of Crisis Pregnancy Centers

The United States Supreme Court heard oral arguments in National Institute of Family and Life Advocates (NIFLA) v. Becerra in which the Ninth Circuit upheld the California Reproductive Freedom, Accountability, Comprehensive Care, and Transparency Act (FACT Act)

The California law requires that licensed pregnancy-related clinics, also known as crisis pregnancy centers, or CPCs, must disseminate a notice stating the existence of publicly- funded family-planning services, including contraception and abortion, and requires that unlicensed clinics disseminate a notice stating that they are not licensed by the State of California.  The California legislature had found that the approximately 200 CPCs in California employ “intentionally deceptive advertising and counseling practices [that] often confuse, misinform, and even intimidate women from making fully-informed, time-sensitive decisions about critical health care.”

The California law is not unique, but as we previously discussed when certiorari was granted, other courts have consider similar provisions with mixed conclusions.

876px-What's_Sauce_For_The_Gander_Is_Sauce_For_The_Goose_(9558708758)The arguments raised several questions but one that recurred was the relevance of Planned Parenthood of Southeastern Pennsylvania v. Casey (1992) in which the Court upheld the informed consent provisions of a state law mandating "providing information about medical assistance for childbirth, information about child support from the father, and a list of agencies which provide adoption and other services as alternatives to abortion."  Justice Breyer's invocation of the maxim "sauce for the goose, sauce for the gander" pointed to the question of why California could not also mandate that CPC's provide notice. Arguing for the challengers, Michael Farris argued that the distinction was that the CPC's were not medical, although there was much discussion of this including the definition of medical procedures such as sonograms and pregnancy tests.

Appearing for neither party, Deputy Solicitor General Jeffrey Wall nevertheless strongly advocated against the California law. Near the end of Wall's argument, Justice Alito raised the subject of professional speech proposed by the United States brief, stating that it "troubles me" and seemed inconsistent with United States v. Stevens (2010) regarding not recognizing new categories of unprotected speech. (Recall that Alito was the lone dissent in the Court's conclusion that criminalizing "crush porn" violated the First Amendment).  Alito also referenced the Fourth Circuit's "fortune teller" case, in which the court upheld special regulations aimed at fortune tellers. For Wall, laws that mandate disclosures by historically regulated professions such as doctors and lawyers should be subject only to minimal scrutiny.

The main issue raised regarding California's position was whether or not the statute was targeted at pro-life clinics, especially given the "gerrymandered" nature of the statute's exceptions. The Justices also directed questions to Deputy Solicitor of California Joshua Klein regarding the advertising requirements and disclaimers: must a facility state it is not licensed even if it is not advertising services, but simply has a billboard "Pro Life"? 

Will it be sauce for the goose as well as for the gander? 

The intersection of First Amendment principles and abortion jurisprudence makes the outcome even more difficult to predict than notoriously difficult First Amendment cases. 

[image via]

March 20, 2018 in Abortion, Due Process (Substantive), Family, First Amendment, Fundamental Rights, Gender, Oral Argument Analysis, Reproductive Rights, Supreme Court (US) | Permalink | Comments (0)