Friday, April 30, 2021
The Sixth Circuit ruled that enforcement of Kentucky's anti-price-gouging laws to Kentucky products sold on Amazon doesn't clearly violate the dormant commerce clause. The preliminary ruling allows the Kentucky AG to enforce the state's anti-price-gouging laws against Kentucky businesses who sell products on Amazon, even though Amazon rules mean that those businesses must sell their products for the same price to customers in different states.
The case, Online Merchants Guild v. Cameron, arose when Kentucky businesses started charging outsized prices for hand sanitizer, disinfecting wipes, masks, and other cleaning and COVID-protective products on Amazon. The state AG opened civil price-gouging investigations, and the businesses sued.
The businesses argued that application of the state's anti-price-gouging laws would require them to drop their prices for products sold in Kentucky and, under Amazon's rule that retailers sell their products for a single price to customers in different states, other states as well. They claimed that this meant that Kentucky's laws would apply extraterritorially and thus create a nationwide "price ceiling," in violation of the dormant commerce clause.
The district court agreed and granted a preliminary injunction. But the Sixth Circuit reversed.
The court held that any extraterritorial effect of the state's laws was due to Amazon, not the laws themselves, and that Amazon's rules broke any "direct or inevitable" link between the state laws and their effects:
It does not follow, however, that Kentucky's price-gouging laws are unconstitutional--a state law's effect on out-of-state commerce must be direct or inevitable to be invalid under the extraterritoriality doctrine. That is not the case here because the effect of Kentucky's price-gouging laws depends entirely upon Amazon's independent decisions in how it structures its online marketplace. If Amazon allowed for state-specific pricing or allowed third-party sellers to limit where their goods were sold--and no one contends that Amazon lacks the power to structure its marketplace in this fashion--then there would be no effect at all on interstate commerce (or at most the effect would be de minimis).
In other words, without Amazon's rule, the Kentucky AG could enforce state laws against these Kentucky businesses, reducing the prices they charge to Kentuckians, but still allowing them to charge outsized prices to customers in other states.
The court vacated the district court's preliminary injunction and remanded for further proceedings.
The Second Circuit ruled that the New York State Board of Law Examiners didn't waive state sovereign immunity under the federal Rehabilitation Act, even though certain state courts of original jurisdiction did. As a result, a bar applicant who was denied an accommodation could not sue the Board for monetary damages.
The case, T.W. v. New York State Board of Law Examiners, began when the Board denied T.W. a requested accommodation for the bar exam. T.W. sued under the Rehabilitation Act, but the Board argued that it enjoyed state sovereign immunity under the Eleventh Amendment. The Board claimed that it didn't waive immunity under the Rehabilitation Act, because it didn't receive federal funding and it wasn't a "program or activity" of a "department, agency . . . [or] instrumentality" that had received funding. (The Rehab Act conditions the receipt of federal funds on waiver of state sovereign immunity.)
The Second Circuit agreed with the Board. The court first rejected T.W.'s claim that the Board received federal funding (and thus waived state sovereign immunity) because other state agencies provide reimbursement to bar applicants for the applicants' own out-of-pocket exam fees. "No money from [the other state agencies] ever gets paid to the Board; the money gets paid directly to the candidate after she has paid her examination fees." Moreover, "[t]he Board is, at most, an indirect beneficiary of the federal funding that [the other state agencies] receive, but this alone does not waive the Board's immunity."
Next, the court held that while some state trial courts received federal funding, the Board wasn't part of those courts. The court acknowledged that some state specialty trial courts received federal funding. It held that the relevant "department or agency" that received federal funding was therefore the state courts of original jurisdiction (and not the state's overall Unified Court System). But because the Board isn't part of the state's courts of original jurisdiction, the Board didn't waive immunity.
The Ninth Circuit ruled that the Federal Aviation Administration Authorization Act did not preempt California's law that classifies workers as either employees or independent contractors. The ruling means that the state law stays on the books.
The case is a win for workers, because employers are much more likely to have to treat their workers as "employees" under state law (with all the attendant benefits) rather than contractors.
The case splits with the First Circuit, which held in Schwann v. FedEx that the FAAAA did not preempt an identical Massachusetts law.
The case, California Trucking Association v. Bonta, arose when the CTA sued the state AG to halt to the state's enforcement of its "AB-5 test" for classifying workers as either employees or independent contractors. The AB-5 test says that workers are "employees," not independent contractors, "unless the hiring entity demonstrates that all of the following conditions are satisfied":
(A) the person is free from the control and direction of the hiring entity in connection with the performance of the work . . . . (B) The person performs work that is entirely outside the usual course of the hiring entity's business. (C) The person is customarily engaged in an independently established trade, occupation, or business of the same nature as that involved in the work performed.
As compared to prior state law, the test leans heavily in favor of "employee," because it presumes a worker is an employee unless a "hiring entity" could establish all three parts of the test, one of which (part (B)) was previously only a factor (not a determinate element) in the analysis.
According to CTA, SB-5 would increase its members' costs "by as much as 150% or more," because they'd have to treat more workers as "employees."
CTA claimed that the FAAAA preempted SB-5. It pointed to the FAAAA's express preemption clause, which says that the federal act preempts any state law "related to a price, route, or service of any motor carrier . . . with respect to the transportation of property."
The Ninth Circuit rejected the claim. The court ruled that AB-5 applies across industries (and doesn't single out the trucking industry) and only affects the employment relation, not "a price, route, or service" (at least not directly).
Because AB-5 is a generally applicable law that impacts a motor carrier's business at the point where the motor carrier interacts with its workers, and the law affects motor carriers' relation with their workers in a manner analogous to the worker classification laws we have previously upheld . . . AB-5 is not significantly related to rates, routes, or services. Therefore, we conclude that the [FAAAA] does not preempt AB-5 as applied to motor carriers.
Judge Bennett dissented, arguing that "the majority's rule ignores the possibility [as here] that a state law might affect a motor carrier's relationship with its workforce and have a significant impact on that motor carrier's prices, routes, or services . . . ."
Saturday, April 17, 2021
The Seventh Circuit yesterday rebuffed the Cook County Clerk's challenge to a pair of consent decrees designed to monitor political patronage practices in that office and others. The ruling means that the decrees stay on the books (or, more precisely, on the district court's docket). But at the same time, the court warned that federalism concerns counsel in favor of resolving the case, and clearing the decrees from the court's docket, "swift[ly]."
The case, Shakman v. Clerk of Cook County, originated with two consent decrees, the "Shakman Decrees," from 1972 and 1991. The 1972 Decree enjoined Chicago and Cook County officials from "conditioning, basing or knowingly prejudicing or affecting any term or aspect of governmental employment, with respect to one who is at the time already a governmental employee, upon or because of any political reason or factor." The 1991 Decree expanded the 1972 Decree to cover hiring decisions: among other things, it required officials to post "prior public notice of the opportunity to apply for and be hired for" all positions, with just a few exceptions. (The City of Chicago and the Chicago Park District have since demonstrated substantial compliance and have been dismissed.)
While the Shakman Decrees remained on the district court's docket, there wasn't really any significant activity until 2019. That's when Shakman, the Voters Organization, and other plaintiffs moved for the appointment of a special master to monitor the Clerk's compliance with the Decrees. The plaintiffs claimed that the Clerk's hiring practices violated the 1991 Decree and that the Clerk took retaliatory actions against employees in violation of the 1972 Decree.
The Clerk opposed the motion and asked the magistrate judge to vacate both Decrees. After discovery and an evidentiary hearing, the magistrate judge found that the Clerk violated the Decrees, appointed a special master, and rejected the Clerk's request to vacate the Decrees. The Clerk appealed, arguing that the plaintiffs lacked standing, that the case raised nonjusticiable political questions, and that the Clerk's actions didn't violate the Decrees.
The Seventh Circuit disagreed. The court ruled first that the plaintiffs had standing, because at least one member of the Voters Organization was a current employee in the Clerk's office who refused to engage in political patronage and suffered reprisal. The court said next that the case didn't raise a nonjusticiable political question, because "both the legal right and applicable standard here"--free association under Elrod v. Burns--"are evident and judicially manageable." Finally, the court held that the magistrate judge didn't clearly err in concluding that the Clerk's "ongoing violations reflect the precise political patronage the Consent Decrees seek to end."
The court noted, however, that federalism considerations counsel in favor of ending the Decrees now, or very soon:
Our federal structure, including the Article III Case or Controversy requirement, does not contemplate federal courts putting units of state or local government under what amounts to static and permanent consent decrees. Federal injunctions interfere with local control over local decision making, and, in turn, local democracy does not work as our federal constitutional design envisions.
Wednesday, March 17, 2021
Twenty-one Republican state attorneys general wrote a letter to Treasury Secretary Janet Yellen yesterday objecting to provisions in the recently enacted federal stimulus bill that place certain restrictions on the $350 billion that is directed to cities, counties, and states.
In particular, the AGs objected to a provision that prohibits recipients of the funding from
us[ing] the funds . . . to either directly or indirectly offset a reduction in the net tax revenue of such State or territory resulting from a change in law, regulation, or administrative interpretation during the covered period that reduces any tax (by providing for a reduction in a rate, a rebate, a deduction, a credit, or otherwise) or delays the imposition of any tax or tax increase.
The AGs argue that the provision could prohibit states from reducing taxes in areas that have nothing to do with COVID relief or the stimulus bill, and that this would violate federalism principles. They say that the restriction, as written, is ambiguous, does not relate to COVID stimulus or relief, and "would effectively commandeer half of the States' fiscal ledgers, compelling States to adopt the one-way revenue ratchet of the current Congress for the next three years"--in violation of the conditioned spending test in South Dakota v. Dole.
According to the AGs, "such federal usurpation of state tax policy would represent the greatest attempted invasion of state sovereignty by Congress in the history of our Republic."
The AGs ask Secretary Yellen to confirm that the restriction "does not prohibit States from generally providing tax relief through the kinds of measures listed and discussed above and other, similar measures, but at most precludes express use of the funds provided under the Act for direct tax cuts rather than for the purposes specified by the Act." Without such assurance, they say that'll "take appropriate additional action . . . . "
UPDATE: Turns out Ohio, whose AG did not sign the letter, didn't want to wait for an answer from Yellen: it filed suit against Yellen, alleging more-or-less the same claims.
Friday, January 1, 2021
Judge Jeremy D. Kernodle (E.D. Tx.) dismissed the lawsuit headed by Representative Louie Gohmert against Vice President Mike Pence to throw the 2020 presidential election.
The ruling in the frivolous case was not unexpected.
The case arose when Gohmert and self-appointed Trump electors from Arizona sued VP Pence, arguing that the Electoral Count Act violates the Electors Clause and the Twelfth Amendment, and that Pence has authority to determine which slate of electors to accept when he presides over the congressional count of electoral votes on January 6. The, er, novel argument turns on the plaintiffs', um, creative reading of the Electors Clause, the Twelfth Amendment, and the Electoral Count Act.
Start with the Electors Clause. It says that "[e]ach State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors . . . ."
Next, the Twelfth Amendment. It says that each state's electors meet in their respective states and vote for President and VP. The electors then transmit their votes to the President of the Senate, the VP. "The President of the Senate shall, in the presence of the Senate and House of Representatives, open all the certificates and the votes shall then be counted." The candidate winning the majority of electoral votes wins. But if no candidate gets a majority, the House selects the President, with each state delegation receiving one vote.
Finally, the Electoral Count Act. It says that Congress must count the votes in a joint session on January 6, with the VP presiding. It says that the executive in each state shall certify the electors to the Archivist of the United States, who then transmits the certificates to Congress. It says that a state's determination of their electors is "conclusive" if the state resolved all disputes over the election pursuant to state law at least 6 days before the electors meet. (This is called the "safe harbor" date.) Under the Act, if at least one Member of the House of Representatives and one Senator objects to a state's elector votes, the House and Senate meet in separate sessions and vote on the objection--by members, not state delegations.
Arizona, Georgia, Pennsylvania, Michigan, and Wisconsin all certified their electors to President-Elect Biden and VP-Elect Harris, pursuant to state law and the Electoral Count Act. The governors certified the electors to the Archivist.
But then Trump electors in those states met and, without any legal authority, self-certified their votes to President Trump and VP Pence.
The plaintiffs contend that the self-appointed Trump electors created a competing slate of electors in each of these states. (They did not. The "Trump electors" named themselves electors without any legal authority and contrary to state law in each state.) They argue that "provisions . . . of the Electoral Count Act are unconstitutional insofar as they establish procedures for determining which of two or more competing slates of Presidential Electors for a given State are to be counted in the Electoral College, or how objections to a proffered slate are adjudicated, that violate the Twelfth Amendment."
In particular, they argue that the states appointed Biden electors in violation of the Electors Clause, because the state governors and secretaries of state certified those electors, even though the Electors Clause specifies that this is a function for the legislature. (In fact, the legislatures in each of those states already determined the manner of appointing electors by enacting state law that awards electors to the majority winner of the popular vote in those states.)
Moreover, they argue that the dispute-resolution procedure in the Electoral Count Act "limits or eliminates [the VP's] exclusive authority and sole discretion under the Twelfth Amendment to determine which slates of electors for a State, or neither, may be counted." (In fact, the Twelfth Amendment does not give this authority to the VP. The VP's role is ceremonial, simply to read and count the certified results from each state.)
Finally, they argue that the dispute-resolution procedure in the Electoral Count Act "replaces the Twelfth Amendment's dispute resolution procedure--under which the House of Representatives has sole authority to choose the President." (In fact, the Twelfth Amendment dispute resolution procedure only applies when no candidate won a majority of electoral votes. The Electoral Count Act procedure applies when a member of both Houses objects to a state's slate of electors. Those are different dispute resolution processes, to be sure, but for very different kinds of dispute.)
The plaintiffs asked the court to hold that the VP has "exclusive authority and sole discretion in determining which electoral votes to count for a given State."
But the court ruled that the plaintiffs lacked standing. It said that Gohmert lacked standing, because he asserted only an institutional harm (to the House), and not a personal harm. "Congressman Gohmert's alleged injury is 'a type of institutional injury (the diminution of legislative power), which necessarily damages all Members of Congress.'" It said that the Trump "electors" lacked standing, because any alleged injury that they suffered was not created by VP Pence, the defendant. Moreover, it said that both Gohmert and the Trump "electors" failed to show that their requested relief (an order that VP Pence has exclusive discretion to determine which electoral votes to count) would redress their injuries, because VP Pence might not determine the electoral votes in their favor.
The plaintiffs vowed to appeal. But don't expect this case to go anywhere . . . on standing, or on the merits.
Monday, December 14, 2020
The Supreme Court on Friday upheld Arkansas's law regulating the price that pharmacy benefit managers reimburse pharmacies for the cost of drugs covered by drug-prescription plans against an ERISA preemption challenge. The ruling leaves Arkansas's law in place.
The case, Rutledge v. Pharmaceutical Care Management Association, tested Arkansas's Act 900. That Act requires pharmacy benefit managers (PBMs, who act as intermediaries between prescription-drug plans and pharmacies that use them) to reimburse pharmacies (under the PBMs' maximum allowable cost schedules) at or above the rate that pharmacies paid to buy the drug from a wholesaler. The law was designed to ensure that pharmacies, particularly rural and independent pharmacies, could cover their costs and stay in business.
A national trade association of PBMs sued, arguing that the provision was preempted by the federal Employee Retirement Income Security Act. ERISA pre-empts "any and all State laws insofar as they may not or hereafter relate to any employee benefit plan" covered by ERISA.
The Supreme Court disagreed. Justice Sotomayor wrote for a unanimous Court (except Justice Barrett, who did not participate) that "ERISA does not pre-empt state rate regulations that merely increase costs or alter incentives for ERISA plans without forcing plans to adopt any particular scheme of substantive coverage." She said that Act 900, which is "merely a form of cost regulation," is just such a plan. Moreover, she said that Act 900 doesn't "refer to" ERISA, because it doesn't "act immediately and exclusively upon ERISA plans or where the existence of ERISA plans is essential to the law's operation." In short, "it applies to PBMs whether or not they manage an ERISA plan."
Justice Thomas concurred, and wrote separately to again express "doubt" as to "our ERISA pre-emption jurisprudence."
Sunday, December 13, 2020
The Supreme Court on Friday dismissed Texas's suit against Georgia, Pennsylvania, Michigan, and Wisconsin alleging violations of the Constitution's Electors Clause. The ruling was based on Texas's lack of standing--that Texas didn't allege a sufficiently specific and personal harm, caused by the defendants' actions and redressable by the Court, to punch its ticket to the Supreme Court. Importantly, the ruling did not touch the merits, the Electors Clause question.
The ruling thus left open a possibility that President Trump or Trump voters (or somebody else with a stronger standing case than Texas) might file similar cases against the same states, also alleging violations of the Electors Clause. (Indeed, a federal court in Wisconsin on Saturday rejected just such a case; more on that below.) So I thought it might be worth a beat to examine this claim.
President Trump and supporters argue that Georgia, Pennsylvania, Michigan, and Wisconsin violated the Constitution's Electors Clause by using election rules that weren't specifically sanctioned by the state legislatures in those states. The Electors Clause, in Article II, Section 1, specifies how states appoint electors to the electoral college; it says, "Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors . . . ." President Trump and his supporters focus on the phrase "in such Manner as the Legislature thereof may direct," and argue that a state legislature--and only a state legislature--has authority to direct how the state appoints electors.
That claim has some support on the Supreme Court. In other election cases this fall, Justices Thomas, Alito, and Gorsuch seemed to endorse it. For example, Justice Alito (joined by Justices Thomas and Gorsuch) wrote in Pennsylvania v. Boockvar that the "question has national importance, and there is a strong likelihood that the State Supreme Court decision [extending the deadline for mail-in votes] violates the Federal Constitution."
The provisions of the Federal Constitution conferring on state legislatures, not state courts, the authority to make rules governing federal elections would be meaningless if a state court could override the rules adopted by the legislature simply by claiming that a state constitutional provision gave the courts the authority to make whatever rules it thought appropriate for the conduct of a fair election.
UPDATE: Justice Alito's opinion in Boockvar was carefully limited to the situation where a state supreme court "override[s] the rules adopted by the legislature." His opinion doesn't extend to situations where a state supreme court merely interprets the rules of the legislature, or where another body acts pursuant to legislative delegation. Justice Alito's opinion, by its own terms, therefore doesn't endorse the strongest version of a legislature-only rule (say, invalidating a state court ruling that merely interprets state law), but instead only a weaker version, where a state court outright "override[s] the rules adopted by the legislature." Many thanks to Professor Bruce Ledewitz, Duquesne, for pointing this out.
(Similarly, in an earlier, unrelated case, Arizona State Legislature v. Arizona Independent Redistricting Commission, Chief Justice Roberts argued in dissent that a similar constitutional provision, the Elections Clause (which gives "the Legislature" of each state the power to regulate "[t]he Times, Places and Manner of holding Elections") does not allow state voters to vest redistricting power in an independent commission. Chief Justice Roberts's position in that case doesn't necessarily mean that he'd also endorse a "legislature-only" reading of the Electors Clause. But it does suggest that he'd at least be open to it.)
Under that "legislature-only" reading of the Electors Clause, President Trump and his supporters argue that Georgia, Pennsylvania, Michigan, and Wisconsin violated the Clause, because executive agencies or courts in those states adopted voting rules that weren't specifically enacted by the legislatures in those states. For example, in Boockvar, the Pennsylvania Supreme Court ordered that the state accept mail-in ballots up to three days after election day, even though state law set an election-day deadline. The court held that the extension was required to comply with the Free and Equal Elections Clause of the state constitution. In other states, executive officials or judges issued similar orders in order to accommodate voters in an age of Covid-19. President Trump and his supporters claimed that these accommodations violated the Electors Clause, because they weren't specifically authorized by the state legislatures.
On the other side, the states argue that the Electors Clause authorizes only state legislatures only to direct the "Manner" of appointing electors--and that the state legislatures did this when they specified under state law that each state's electors would go to the popular-vote winner in the state. The states say that the "Manner" of appointing electors only extends that far--to the specification how a state would appoint its electors (by popular vote, for example)--and not to every jot and tittle of state election administration. Read more broadly, they say that the Clause would allow anyone to successfully challenge in federal court any aspect of the way a state ran a presidential election, so long as it wasn't specifically adopted by the state's legislature--a clearly absurd result.
Moreover, they say that a state "legislative" act isn't just an act of the "legislature," but rather an act of the state's lawmaking apparatus. This includes the governor's signature, the executive's enforcement, and the state courts' review. (That's what the majority said about the Elections Clause in Arizona State Legislature.)
Finally, even if the Electors Clause means that the legislature--and the legislature alone--can enact the election rules for presidential elections, the states say that they complied, at least with regard to executive enforcement of election law. That's because the legislature delegated authority to enforce the election law to executive agencies.
A federal court in Wisconsin put these arguments to the test just yesterday, in Trump v. Wisconsin Elections Commission . . . and ruled flatly against the President. The court held that the Wisconsin legislature did direct the manner of appointing electors--by specifying that they'd be appointed according to the popular vote in the state. It held that the "Manner" of appointment didn't extend to particular voting rules and the administration of the election: "[The President's] argument confuses and conflates the 'Manner' of appointing presidential electors--popular election--with underlying rules of election administration." And it held that even if the "Manner" of appointing electors includes election administration, Wisconsin satisfied the Clause, because the state legislature delegated authority to the Wisconsin Elections Commission to make certain rules on the administration of an election.
Stepping back, this is why Trump opponents have argued that Texas's lawsuit, if successful, would have unduly encroached on state sovereignty: because it would've meant that federal courts would've second-guessed every aspect of a state's lawmaking and administration of an election (the legislature's act, the executive's enforcement, and the state courts' say-so as to how it must operate under the state constitution). The Trump position would allow federal courts a free license to invalidate any aspect of election administration that the state legislature did not specifically enact--no matter how much the legislative act violated state law or the state constitution.
Still, if the question gets to the Supreme Court--a big "if," given all the other problems with these lawsuits--at least three justices seem ready to rule for a "legislature-only" interpretation of the Electors Clause. That position, if endorsed by five justices, could favor President Trump in one or more of these states, where executive officers or judges adopted election rules without specific authorization (as in Wisconsin) from the legislature.
Saturday, December 12, 2020
The Supreme Court on Friday dismissed Texas's challenge to election results in Georgia, Pennsylvania, Michigan, and Wisconsin for lack of standing. The brief order simply read,
The State of Texas's motion for leave to file a bill of complaint is denied for lack of standing under Article III of the Constitution. Texas has not demonstrated a judicially cognizable interest in the manner in which another State conducts its elections. All other pending motions are dismissed as moot.
Texas argued that it asserted two harms sufficient to satisfy standing: (1) its citizens were harmed in their votes for president by other states' failures to comply with the Elections Clause; and (2) Texas itself was harmed in its role (as a state) in the Senate, where the vice president could break a tie.
The Court's ruling rejects those theories. It did not say anything about the Elections Clause, however.
Justice Alito filed a statement, joined by Justice Thomas, reiterating their view that the Court lacked "discretion to deny the filing of a bill of complaint in a case that falls within our original jurisdiction."
The ruling ends this challenge. But Trump supporters have already indicated that they'll seek to file similar challenges on behalf of individual voters in these states.
Wednesday, October 7, 2020
The Second Circuit today flatly rejected President Trump's case challenging the NY grand jury subpoena for his financial records. The ruling follows a summer Supreme Court decision saying that the grand jury was not categorically (and constitutionally) barred from seeking the President's financial records.
The ruling in Trump v. Vance deals a serious blow to President Trump and his efforts to keep his financial records under wraps. (The subpoena goes to far more than President Trump's taxes.) But the President will surely seek to appeal.
The ruling says that President Trump failed even to plausibly plead (under the Iqbal and Twombly pleading standard) that the grand jury subpoena was overbroad or issued in bad faith. At the same time, it noted that going forward the President might need some accommodations in state criminal proceedings in order to avoid intruding on the President's Article II responsibilities. (The President didn't raise categorical constitutional claims in this round--the Supreme Court already rejected those claims in its ruling this summer--and did not specifically claim that complying with this subpoena would interfere with his Article II responsibilities.)
The court's decision was issued per curiam (without naming the judges involved), suggesting that the case was easy and that the ruling was perfunctory.
Friday, July 24, 2020
Federal Judge Enjoins Federal Agents Acting Against Journalists and Legal Observers in Portland, Oregon
In a Temporary Restraining Order and Opinion in Index Newspapers v. City of Portland, Judge Michael Simon enjoined the U.S. Department of Homeland Security ("DHS"); and the U.S. Marshals Service ("USMS") — the "Federal Defendants" — from arresting and otherwise interfering with journalists and legal observers who are documenting the troublesome and now widely reported events in Portland, Oregon, which have attracted Congressional attention.
Judge Simon's relatively brief TRO opinion, first finds that the plaintiffs have standing, and then applying the TRO criteria importantly finds that there is a likelihood the plaintiffs would prevail on the First Amendment claim. Judge Simon found both that there was sufficient circumstantial evidence of retaliatory intent against First Amendment rights and that plaintiffs had a right of access under Press-Enterprise Co. v. Superior Court (1986). Judge Simon found fault with many of the specific arguments of the federal defendants, including the unworkability of the remedy:
The Federal Defendants also argue that closure is essential because allowing some people to remain after a dispersal order is not practicable and is unworkable. This argument is belied by the fact that this precise remedy has been working for 21 days with the Portland Police Bureau. Indeed, after issuing the first TRO directed against the City, the Court specifically invited the City to move for amendment or modification if the original TRO was not working, or address any problems at the preliminary injunction phase. Instead, the City stipulated to a preliminary injunction that was nearly identical to the original TRO, with the addition of a clause relating to seized property. The fact that the City never asked for any modification and then stipulated to a preliminary injunction is compelling evidence that exempting journalists and legal observers is workable. When asked at oral argument why it could be workable for City police but not federal officers, counsel for the Federal Defendants responded that the current protests are chaotic. But as the Federal Defendants have emphatically argued, Portland has been subject to the protests nonstop for every night for more than 50 nights, and purportedly that is why the federal officers were sent to Portland. There is no evidence that the previous 21 nights were any less chaotic. Indeed, the Federal Defendants' describe chaotic events over the Fourth of July weekend through July 7th, including involving Portland police, and the previous TRO was issued on July 2nd and was in effect at that time. The workability of the previous TRO also shows that there is a less restrictive means than exclusion or force that is available.
The TRO is quite specific as to journalists as well as to legal observers, providing in paragraph 5, to "facilitate the Federal Defendants' identification of Legal Observers protected under this Order, the following shall be considered indicia of being a Legal Observer: wearing a green National Lawyers' Guild-issued or authorized Legal Observer hat (typically a green NLG hat) or wearing a blue ACLU-issued or authorized Legal Observer vest."
The TRO lasts for 14 days; the litigation will undoubtedly last much longer.
Thursday, July 9, 2020
The Supreme Court ruled today that a state grand jury is not categorically prohibited from issuing a subpoena for the President's taxes and financial records. But the ruling leaves open the possibility that the President could argue that the subpoena violates state law, or that a particular subpoena, including this one, violates the separation of powers.
Because of that last bit, the ruling means that the grand jury probably won't get its hands on President Trump's taxes anytime soon. That's because the President is almost sure to pitch these arguments in state or federal court, and the litigation will likely take some time. That means that the ruling is likely a short-term win for the President.
But at the same time, the ruling is a dramatic loss for the presidency. That's because the Court unconditionally rejected the President's sweeping and categorical claim of absolute immunity against state criminal processes. President Trump overargued this, as did the DOJ, and the Court reined him in.
Chief Justice Roberts wrote the opinion, joined by Justices Ginsburg, Breyer, Sotomayor, and Kagan. Justice Kavanaugh wrote an opinion concurring in the judgment, joined by Justice Gorsuch. Justice Thomas dissented, and Justice Alito dissented.
The Court held that Presidents long lacked immunity from federal criminal subpoenas, going all the way back to the Burr trial. It ruled that there's nothing different about a state criminal subpoena that would categorically immunize the President (as the president argued), or even raise the bar for a presidential subpoena (as DOJ argued). In particular, the Court rejected the President's claims that a state grand jury subpoena could divert the President's attention, stigmatize the President (and undermine his leadership), and harass the President in violation of federalism principles. It similarly rejected DOJ's similar reasons for a higher bar for presidential subpoenas.
The Court nevertheless left open the possibility that the President (like anybody else) could challenge a state grand jury subpoena under state law, like law that bans bad faith subpoenas or those that create an undue burden. It also left open the possibility that the President could challenge a specific subpoena on the basis that a particular subpoena unduly interfered with his duties as President. (The problem in this case was that the President claimed a categorical immunity from state subpoenas.) The President will probably take up these claims now, leading to yet another round of litigation, and probably preventing the grand jury from getting the documents and records anytime soon.
Justice Kavanaugh, joined by Justice Gorsuch, concurred in the judgment but wrote separately to underscore that there may be state law or constitutional problems with this particular subpoena, depending on how the courts balance out the competing interests of the state courts and the President.
Justice Thomas dissented, agreeing with the majority that the President isn't categorically immune from the grand jury's issuance of the subpoena, but that he might be immune from the enforcement of it.
Justice Alito dissented, too, agreeing that the President isn't categorically immune, but arguing for a heightened standard, given the nature of the Presidency and the federalism system.
Wednesday, July 8, 2020
Writing for the Court, Alito's opinion — joined by Chief Justice Roberts and Justices Thomas, Breyer, Kagan, Gorsuch, and Kavanaugh — held that although the teachers in these cases were not actually "ministers" by title and did not have as much as religious training as the teacher in Hosanna-Tabor, they are encompassed in the same exception from enforcement of anti-discrimination laws. The Court stated that the First Amendment protects a religious institution's independence on matters of "faith and doctrine" without interference from secular authorities, including selection of its "ministers." But who should qualify as a "minister" subject to this exemption? Recall that the factors of Hosanna-Tabor figured in the oral argument (and recall also that they figured in the Ninth Circuit's opinions). But here, the Court stated that while there may be factors, "What matters, at bottom, is what an employee does," rather than what the employee is titled. Moreover, the "religious institution's explanation of the role of such employees in the life of the religion" is important. Indeed, the religious institution's "explanation" seems determinative. The Court rejected a "rigid formula" for determining whether an employee is within the ministerial exception, concluding instead that:
When a school with a religious mission entrusts a teacher with the responsibility of educating and forming students in the faith, judicial intervention into disputes between the school and the teacher threatens the school’s independence in a way that the First Amendment does not allow.
The brief concurring opinion by Thomas, joined by Gorsuch, argues that the Court should go further and essentially make the implicit more explicit: the Court should decline to ever weigh in "on the theological question of which positions qualify as 'ministerial.' "
Sotomayor dissenting opinion, joined by Ginsburg, begins:
Two employers fired their employees allegedly because one had breast cancer and the other was elderly. Purporting to rely on this Court’s decision in Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC (2012), the majority shields those employers from disability and age-discrimination claims. In the Court’s view, because the employees taught short religion modules at Catholic elementary schools, they were “ministers” of the Catholic faith and thus could be fired for any reason, whether religious or nonreligious, benign or bigoted, without legal recourse. The Court reaches this result even though the teachers taught primarily secular subjects, lacked substantial religious titles and training, and were not even required to be Catholic. In foreclosing the teachers’ claims, the Court skews the facts, ignores the applicable standard of review, and collapses Hosanna-Tabor’s careful analysis into a single consideration: whether a church thinks its employees play an important religious role. Because that simplistic approach has no basis in law and strips thousands of school- teachers of their legal protections, I respectfully dissent.
For the dissent, the Court's conclusion has "grave consequences," noting that it is estimated that over 100,000 secular teachers employed by religiously-affiliated schools are now without employment protections. Further, it contrasts Esponiza v. Montana Dept of Revenue, decided this Term, in which the Court "lamented a perceived 'discrimination against religion,'" but here "it swings the pendulum in the extreme opposite direction, permitting religious entities to discriminate widely and with impunity for reasons wholly divorced from religious beliefs." The dissent concludes with a hope that the Court will be "deft" enough to "cabin the consequences" of this ministerial exception, but given the current composition of the Court, that hope seems a narrow one.
Monday, July 6, 2020
A unanimous Supreme Court today upheld a state law that punishes "faithless electors." The ruling means that states can continue to impose fines on individuals appointed to vote in the Electoral College who pledge their vote to one candidate, but actually vote for another. In a companion case (in a brief per curiam opinion), the Court held that a state could remove and replace a faithless elector with an elector who would vote for the winner of the state's popular vote.
The case, Chiafalo v. Washington, arose when three Washington electors who pledged to support Hillary Clinton in the 2016 presidential election actually voted for someone else. (They hoped that they could encourage other electors to do the same, and deny Donald Trump the presidency.) The state imposed a $1000 fine for each "faithless elector" for violating their pledge to support the candidate who won the state's popular vote.
The pledge wasn't a problem. The Court in 1952 upheld a pledge requirement, and a state's power to appoint only those electors who would vote for the candidate of the winning political party. But that case, Ray v. Blair, didn't answer the question whether a state could punish a faithless elector.
Today's ruling says yes.
Justice Kagan wrote for the Court. She noted first that the appointment power in Article II, Section 1, authorizes each state to appoint electors "in such Manner as the Legislature thereof may direct." This power to appoint "includes a power to condition [the] appointment--that is, to say what the elector must do for the appointment to take effect," including requiring the elector to pledge to cast a vote in the Electoral College that reflects the popular vote in the state. Then: "And nothing in the Constitution expressly prohibits States from taking away presidential electors' voting discretion as Washington does." In short, "a law penalizing faithless voting (like a law merely barring that practice) is an exercise of the State's power to impose conditions on the appointment of electors."
The Court also wrote that the practice of punishing a faithless elector is consistent with "long settled and established practice." "Washington's law, penalizing a pledge's breach, is only another in the same vein. It reflects a tradition more than two centuries old. In that practice, electors are not free agents; they are to vote for the candidate whom the State's voters have chosen."
Justice Thomas concurred, joined by Justice Gorsuch. Justice Thomas argued that the question isn't answered by Article II (or anything else in the Constitution), and so gets its answer from the federalism formula in the Tenth Amendment: "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."
Tuesday, June 30, 2020
SCOTUS Holds Free Exercise Clause Bars Application of State's No-Aid to Religious Institutions Clause in State Constitution
In its opinion in Espinoza v. Montana Department of Revenue regarding a state tax credit scheme for student scholarships, the majority held that the scheme must be afforded to religious schools so that the Free Exercise Clause was not violated.
Recall that the Montana Supreme Court held that the tax credit program's application to religious schools was unconstitutional under its state constitution, Art. X §6 , which prohibits aid to sectarian schools. This type of no-aid provision is often referred to as (or similar to) a Blaine Amendment and frequently appears in state constitutions.
In a closely-divided decision, the Court decided that the Montana Supreme Court's decision that the tax credit program could not be extended to religious schools should be subject to struct scrutiny under the First Amendment's Free Exercise Clause and did not survive. (The Court therefore stated it need not reach the equal protection clause claims). The Court essentially found that this case was more like Trinity Lutheran Church of Columbia v. Comer (2017) (involving playground resurfacing) and less like Locke v. Davey, 540 U.S. 712 (2004), in which the Court upheld State of Washington statutes and constitutional provisions that barred public scholarship aid to post-secondary students pursuing a degree in theology. The Court distinguishes Locke v. Davey as pertaining to what Davey proposed "to do" (become a minister) and invoking a "historic and substantial” state interest in not funding the training of clergy. Instead, the Court opined that like Trinity Lutheran, Esponiza "turns expressly on religious status and not religious use."
The Court's opinion, by Chief Justice Roberts and joined by Thomas, Alito, Gorsuch, and Kavanaugh, is relatively compact at 22 pages. In addition to taking time to distinguish Locke v. Davey, the opinion devotes some discussion to federalism, invoking the Supremacy Clause and Marbury v. Madison in its final section. But the opinion also engages with the dissenting Justices' positions in its text and its footnotes. Along with the concurring opinions, the overall impression of Espinoza is a fragmented Court, despite the carefully crafted majority opinion.
The concurring opinion of Thomas — joined by Gorsuch — reiterates Thomas's view that the Establishment Clause should not apply to the states; the original meaning of the clause was to prevent the federal establishment of religion while allowing states to establish their own religions. While this concurring opinion criticizes the Court's Establishment Clause opinions, it does not confront why a state constitution would not be free to take an anti-establishment position.
Gorsuch also wrote separately, seemingly to emphasize that the record contained references to religious use (exercise) and not simply religious status. Gorsuch did not discuss the federalism issues he stressed in his opinion released yesterday in June Medical Services.
Alito's thirteen page concurring opinion is an exegesis on the origins of the Montana constitutional provision as biased. Alito interestingly invokes his dissenting opinion in Ramos v. Louisiana decided earlier this Term in which he argued that the original motivation of a state law should have no bearing on its present constitutionality: "But I lost, and Ramos is now precedent. If the original motivation for the laws mattered there, it certainly matters here."
(Noteworthy perhaps is that Roberts joined Alito's dissenting opinion in Ramos and Roberts's opinion in Esponiza does spend about 3 pages discussing the Blaine amendments' problematical history, but apparently this was insufficient for Alito).
Ginsburg's dissenting opinion, joined by Kagan, pointed to an issue regarding the applicability of the Court's opinion:
By urging that it is impossible to apply the no-aid provision in harmony with the Free Exercise Clause, the Court seems to treat the no-aid provision itself as unconstitutional. Petitioners, however, disavowed a facial First Amendment challenge, and the state courts were never asked to address the constitutionality of the no- aid provision divorced from its application to a specific government benefit.
Breyer, joined in part by Kagan, essentially argued that the majority gave short-shrift to Locke v. Davey and its "play-in-the-joints" concept authored by Rehnquist as expressing the relationship between the Establishment and Free Exercise Clause of the First Amendment. Breyer's opinion is almost as long as the majority opinion, and the majority takes several opportunities to express its disagreement with Breyer, including in a two paragraph discussion, his implicit departure from precedent (e.g., "building on his solo opinion in Trinity Lutheran").
Sotomayor's dissent, also criticized by the majority in text, argues that the Court is "wrong to decide the case at all" and furthermore decides it wrongly. The Court's reframing incorrectly addressed (or seemingly addressed?) whether the longstanding state constitutional provision was constitutional. Thus, she argues, the Court has essentially issued an advisory opinion. On the merits, she contends, "the Court’s answer to its hypothetical question is incorrect." She concludes that the majority's ruling is "perverse" because while the Court once held that "the Free Exercise Clause clearly prohibits the use of state action to deny the rights of free exercise to anyone, it has never meant that a majority could use the machinery of the State to practice its beliefs,” it now departs from that balanced view.
The Court's opinion is much more divided than it seems at first blush. And the future of state constitutional provisions that prohibit taxpayer money from being used to support religious institutions remains in doubt.
June 30, 2020 in Courts and Judging, Equal Protection, Establishment Clause, Federalism, First Amendment, Fourteenth Amendment, Free Exercise Clause, Opinion Analysis, State Constitutional Law, Supreme Court (US), Theory | Permalink | Comments (0)
Monday, June 29, 2020
In its highly anticipated opinion in June Medical Services v. Russo (formerly Gee), the United States Supreme Court reversed the Fifth Circuit's controversial decision upholding Louisiana's abortion restrictions despite their similarity to the ones held unconstitutional in the Court's most recent abortion case, Whole Woman's Health v. Hellerstedt (2016).
Justice Breyer, who also wrote the Court's opinion in Whole Woman's Health, wrote the plurality opinion in June Medical, joined by Ginsburg, Sotomayor and Kagan (None of the women Justices wrote separately, meaning that the abortion opinions in today's case are all by men).
Breyer's plurality opinion concluded that there is standing; recall that the United States argued that the physicians should not have standing to raise the constitutional rights of their patients despite this long standing practice. Breyer's plurality opinion carefully rehearses the findings of fact by the district court (which applied Whole Women's Health) and ultimately concluded that the "evidence on which the District Court relied in this case is even stronger and more detailed" than in Whole Woman's Health. The Fifth Circuit, Breyer's plurality opinion concluded, misapplied the correct standard of review of these findings: the appellate court should have applied the deferential clear-error standard.
Chief Justice Roberts, who dissented in Whole Woman's Health, concurred in June Medical on the basis of stare decisis:
I joined the dissent in Whole Woman’s Health and continue to believe that the case was wrongly decided. The question today however is not whether Whole Woman’s Health was right or wrong, but whether to adhere to it in deciding the present case . . . .
The legal doctrine of stare decisis requires us, absent special circumstances, to treat like cases alike. The Louisiana law imposes a burden on access to abortion just as severe as that imposed by the Texas law, for the same reasons. Therefore Louisiana’s law cannot stand under our precedents.
The Chief Justice's sixteen page concurring opinion, necessary to constitute the majority reversing the Fifth Circuit and upholding Whole Woman's Health is bound to be highly analyzed.
The dissenting opinions are somewhat fragmented. Thomas's dissenting opinion and Alito's dissenting opinion, joined by Gorsuch, and in part by Thomas and Kavanaugh, tracks ground familiar from Whole Woman's Health, with additional discussions of stare decisis. Gorsuch, who was not on the Court when Whole Woman's Health was decided in 2016, penned an opinion accusing the Court of having "lost" its way in a "highly politicized and contentious arena" by not paying due deference to the state legislature. Kavanaugh, who replaced Kennedy who had joined the majority in Whole Woman's Health, not only joined portions of Alito's dissent but wrote separately to stress his agreement with the portions of Alito's opinion that the case should be remanded, and in a footnote also stated that "the District Court on remand should also address the State’s new argument (raised for the first time in this Court) that these doctors and clinics lack third-party standing."
Tuesday, June 2, 2020
A unanimous Supreme Court yesterday ruled in Financial Oversight and Management Board for Puerto Rico v. Auerelius Investment, LLC, that the President's appointment of members to the Financial Oversight Board, without Senate advice and consent, didn't violate (or even implicate) the Appointments Clause.
The ruling is a win for the Board and its authority to carry Puerto Rico through bankruptcy.
The Court said first that the Appointments Clause applies to all officers of the United States, including officers who operate within territories. But it went on to say that Board members in this case aren't officers of the United States, and the Appointments Clause therefore doesn't restrict their appointment.
The Court looked functionally to the Board's powers and duties and concluded that they're local, not national. The Court said that Board members therefore aren't officers of the United States covered by the Appointments Clause.
Justice Thomas concurred. He argued that the Court should have looked to the original public meaning of the Appointments Clause, not the "ill-defined path" that it took, and come out with the same result.
Justice Sotomayor concurred, too. She argued that given Puerto Rico's history--and, in particular, the compact between Puerto Rico and the federal government that established home rule for the island--it wasn't clear that Congress could create the Board at all. But nevertheless concurred, because the parties hadn't raised that issue:
These cases raise serious questions about when, if ever, the Federal Government may constitutionally exercise authority to establish territorial officers in a Territory like Puerto Rico, where Congress seemingly ceded that authority long ago to Puerto Rico itself. . . .
The Board members, tasked with determining the financial fate of a self-governing Territory, exist in a twilight zone of accountability, neither selected by Puerto Rico itself nor subject to the strictures of the Appointments Clause. I am skeptical that the Constitution countenances this freewheeling exercise of control over a population that the Federal Government has explicitly agreed to recognize as operating under a government of their own choosing, pursuant to a constitution of their own choosing. . . . Nevertheless, because these issues are not properly presented in these cases, I reluctantly concur in the judgment.
Wednesday, May 13, 2020
The Supreme Court heard oral arguments today in Chiafalo v. Washington and Colorado v. Baca, both testing whether and how states can control the votes of their presidential electors. Both cases involved "faithless electors"--electors who, in violation of state law, voted for individuals in the 2016 election who did not win the state's popular vote.
Maybe the only thing that was clear from the arguments today is that . . . nothing is clear. Text doesn't answer the question. Original understanding is equivocal. Past practice can be manipulated by both sides. Even the practical effect of a ruling either way is uncertain, or at least reasonably disputed. The Court searched for a limiting principle from both sides, in both cases, but came up blank.
All this indeterminacy only served to illustrate how screwed up our system of electing a president really is. As the arguments revealed, that system, the Electoral College, appears to have no firm or settled basis in any variety of democratic theory, or any theory of federalism. If it did, we'd at least have some guidance on the question.
Given the indeterminacy, we might expect the Court to punt on cases like these under the political question doctrine. Indeed, the issue bears a remarkable resemblance to partisan gerrymandering--no settled constitutional test, could benefit or harm either major party--on which the Court declined to rule most recently in Rucho v. Common Cause. If anything, the text, history, and precedent are even less determinate here than in partisan gerrymandering cases.
So: Look for the Court to leave things as they are--to allow the states to control their electors, or allow the states to set them free, as the states wish. As Justice Kagan asked, "What would you say if I said that if I think that there's silence, the best thing to do is leave it to the states and not impose any constitutional requirement on them?"
The Fifth Circuit yesterday upheld the state sovereign immunity waiver for state recipients of Title IX funding. The ruling means that state recipients of Title IX can be sued for monetary damages in federal court for violations of Title IX.
That's the same result that's long been on the books in the Fifth Circuit and all others to have considered the question.
But this case is notable because it rejects a novel claim by Louisiana (LSU was the defendant) that the Supreme Court's Medicaid ruling in NFIB v. Sebelius changed the landscape as to Title IX waiver. In particular, the state claimed that under NFIB the Title IX waiver was unduly coercive.
Not so, said the court. The court said that NFIB "does not unequivocally alter Dole's conditional-spending analysis," under which the Court previously upheld the Title IX waiver. Moreover, "[t]he threat of LSU losing what amounts to just under 10% of its funding is more like the 'relatively mild encouragement' of a state losing 5% of its highway funding . . . than the 'gun to the head' of a state losing all of its Medicaid funding [in NFIB]."
Tuesday, May 12, 2020
The Supreme Court heard oral arguments today in Trump v. Mazars and Trump v. Vance, the cases testing congressional authority and a local D.A.'s authority, respectively, to subpoena President Trump's financial records from his accounting firm and bank.
As usual, it's hard to say where the Court is going to land based on oral arguments. (It might be even harder than usual, given the teleconference format.) But based on questioning, it seems likely that the Court in Mazars could issue a split decision, upholding one or two subpoenas while overturning the other(s). In both cases, the Court'll seriously balance the interference (or not) of the subpoenas with the President's ability to do the job. Look for that balance to split along conventional ideological lines, with Chief Justice Roberts right in the center.
Another possibility: the Court could set a new standard for these subpoenas and remand for reconsideration.
Whatever the Court does, two things seem very likely. First, the rulings will have a dramatic effect on the separation of powers and checks and balances, likely shifting power and immunities (to some degree, more or less) to the President. Second, likely the only way we see President Trump's financial records and taxes before the 2020 election is if the Court outright upholds one of the House Committee's subpoenas. (Even if the Court rules against the President in Vance, grand jury secrecy rules mean that we probably may not see those records until after the election.)
The two cases raise very different questions. Mazars is all about the separation of powers--congressional authority to issue subpoenas to third parties for the President's personal information--while Vance is about federalism and presidential immunities--a local prosecutor's authority, through a grand jury, to subpoena that same material, and the President's claim of absolute immunity from any criminal process.
Despite the differences, though, much of the arguments in both cases focused on how the subpoenas, wherever they came from, would, or would not, "interfere" with the President's execution of the Article II powers. The President's attorneys argued repeatedly that allowing subpoenas in this case could open the door to free-flowing subpoenas from every congressional committee and every local prosecutor, and would thus impede the President's ability to do the job. On the other hand, attorneys for the Committees and the D.A. noted that these particular subpoenas are directed at a third party and don't require the President to do anything.
Look for the Court to incorporate this into its reasoning--the extent to which the subpoenas interfere with the President's job, either in fact (where there's no real evidence that President Trump has actually been distracted by these subpoenas) or in theory (where we can imagine that a future President might be distracted by a flurry of future subpoenas).
Questions in Mazars also focused on the three committees' precise authorities and reasons for their subpoenas. Did they have authority under the House's standing rules? Did the House's subsequent "ratification" of them suffice to demonstrate that the whole House supported them? Were the reasons within a "legitimate legislative purpose"?
These questions suggest that the Court may examine each subpoena separately, and could well uphold one or two, while overturning the other(s).
We also heard some pretty breathtaking claims by the President's attorneys about the scope of presidential powers and immunities. In Mazars we heard that Congress can't regulate the President at all (even if it can regulate other offices in the Executive Branch), and therefore can't investigate (and subpoena) material to help enact law that would regulate the President. In Vance, we heard that the President is absolutely immune from all criminal processes.
The government, weighing in as amicus in both cases in support of the President, dialed back the President's most extreme and categorical positions, and argued instead for a more stringent test for subpoenas directed at the President's personal information. This could give the Court an attractive "middle" position. (This isn't really a middle position. But the President's extreme claims make the government's position look like a middle position.)
On the other side, Congress's attorney in Mazars struggled to identify a limit to Congress's power to subpoena--an issue that several Justices thumped on. The lack of a limiting principle could come back to bite the House Committees, even if these particular subpoenas might've come well within a reasonable limiting principle. That's because if the Court rules for the Committees, it'll have to say why--knowing that the reason will apply to all future congressional subpoenas. If the Committees can't give the Court a limiting principle, the Court could conclude that they see no limit on their authority. And that may be reason enough for at least some of the Justices to rule against them.