Friday, December 6, 2019
Judge Randolph D. Moss (D.D.C.) ruled this week that the Washington Metropolitan Area Transit Authority enjoyed Eleventh Amendment immunity from a former employee's suit under the National Transit Systems Security Act. In so ruling, Judge Moss held that the NTSSA wasn't included in the state-sovereign-immunity-waiver provision in the Civil Rights Remedies Equalization Act. The ruling dismisses the case.
The case arose when a former WMATA employee sued the Authority for violating the NTSSA. That Act, a whistleblower-protection act, prohibits public transportation agencies from "discharg[ing]" or otherwise "discriminat[ing] against an employee" based "in whole or in part" on the employee's "lawful, good faith" provision of information relating to conduct that "the employee reasonably believes constitutes a violation of any Federal law, rule, or regulation relating to public safety or security" to "a person with supervisory authority over the employee."
WMATA, a creature of a compact between Maryland, Virginia, and D.C., moved to dismiss on state sovereign immunity grounds.
The plaintiff countered that WMATA waived its Eleventh Amendment immunity under the Civil Rights Remedies Equalization Act. The CRREA provides that
[a] State shall not be immune under the Eleventh Amendment . . . from suit in Federal court for a violation of section 504 of the Rehabilitation Act of 1973, title IX of the Education Amendments of 1972, the Age Discrimination Act of 1975, title VI of the Civil Rights Act of 1964, or the provisions of any other Federal statute prohibiting discrimination by recipients of Federal financial assistance.
The plaintiff argued that the NTSSA fell within the catch-all provision, because it specifically prohibits discrimination. He claimed that WMATA therefore waived immunity under the CRREA.
The court rejected this argument. The court acknowledged that the NTSSA banned "discrimination," but said that the discrimination outlawed in the NTSSA was not the same type of discrimination covered in CRREA, and that it therefore didn't fall within the CRREA's catch-all:
Each of the enumerated statutes [in the CRREA] prohibits class-based discrimination--that is, discrimination based on a personal characteristic, such as race, national origin, age, sex, or disability. Each is fairly described as a civil rights statute--the presumptive target of the Civil Rights Remedies Equalization Act. And each ensures that the benefits of federally funded programs are equally available to all, regardless of their race, national origin, sex, or disability. The NTSSA, in contrast, is a public safety statute, designed to ensure that employees of public transportation agencies and their contractors and subcontractors are not dissuaded from flagging potential violations of federal safety or security rules . . . . Although the NTSSA uses the word "discriminate," it does so in [a] very different manner than the CRREA and the enumerated statutes.
Tuesday, October 29, 2019
That's the question raised in a lawsuit filed by the United States last week in the Eastern District of California. The U.S. seeks a declaration that the agreement is unconstitutional and a permanent injunction to halt its operation.
The case, U.S. v. California, tests California's cap-and-trade agreement with the provincial government of Quebec, Canada. The federal government argues that the agreement violates the Treaty Clause (prohibiting states from "enter[ing] into any Treaty, Alliance, or Confederation"), the Compact Clause (prohibiting states, without congressional consent, from "enter[ing] into any Agreement or Compact . . . with a foreign Power"), and the Foreign Commerce Clause. It also contends that the agreement impermissibly interferes with the federal government's powers over foreign affairs.
This intrusion complexifies and burdens the United States' task, as a collective of the states and territories, of negotiating competitive international agreements. Moreover, California's actions, as well as the actions of those acting in concert with it, have had the effect of enhancing the political power of that state vis-a-vis the United States. This is due not only to the effect of the Agreement itself but also stems from the fact that the Agreement could encourage other states to enter into similarly illegal arrangements.
The design of the Constitution requires that the federal government be able to speak with one voice on behalf of the United States in matters of foreign affairs. Allowing individual states in the Union to conduct their own foreign policy to advance their own narrow interests is thus anathema to our system of government and, if tolerated, would unlawfully enhance state power at the expense of the United States and undermine the United States' ability to negotiate competitive international agreements.
Thursday, October 17, 2019
The Ninth Circuit ruled today in Walden v. Nevada that a state waives its Eleventh Amendment immunity over any federal claims when it removes a case from state to federal court. The court previously ruled that a state waives immunity over only those federal claims that Congress failed to apply to the states by abrogation when a state removes; today's ruling extends that waiver-by-removal rule to all federal claims.
The case arose when Nevada state employees sued the state for violations of the Fair Labor Standards Act in state court. The state removed the case to federal court and moved to dismiss based on state sovereign immunity.
The Ninth Circuit rejected that claim. The court noted that the Supreme Court ruled in Lapides v. Bd. of Regents of Univ. Sys. of Georgia that a state waives Eleventh Amendment immunity when it removes state law claims for which it waived immunity in state court. It further noted that it (the Ninth Circuit) extended Lapides so that a state waives Eleventh Amendment immunity when it removes federal law claims for which Congress validly abrogated state sovereign immunity. Then it said the same reasoning justifies extending waiver-by-removal to any federal claims (congressional abrogation or not). In so ruling, the Court quoted Lapides:
It would seem anomalous or inconsistent for a State both (1) to invoke federal jurisdiction, thereby contending that the "Judicial power of the United States" extends to the case at hand, and (2) to claim Eleventh Amendment immunity, thereby denying that the "Judicial Power of the United States" extends to the case at hand.
The ruling means that the plaintiffs' FLSA case, now in federal court, can move forward.
Monday, October 7, 2019
Recall that the issue of which rights in the Bill of Rights are incorporated to the states has received recent attention: in McDonald v. City of Chicago (2010), a 5-4 Court held that the Second Amendment is incorporated as against the states through the Fourteenth Amendment (with four Justices finding this occurred through the Due Process Clause and Justice Thomas stating the proper vehicle was the Privileges or Immunities Clause). And just last Term, in Timbs v. Indiana, the United States Supreme Court unanimously concluded that the Excessive Fines Clause of the Eighth Amendment is applicable to the states through the Fourteenth Amendment.
But embedded in Timbs was a dispute about whether the "right" and the "substance of the right" must be similar, a question that the Court did not address. That dispute is at the heart of the incorporation doctrine surrounding the right to have a unanimous jury verdict. Justice Alito explained the problem in footnote 14 of McDonald, after stating in the text that the general rule is that rights "are all to be enforced against the States under the Fourteenth Amendment according to the same standards that protect those personal rights against federal encroachment.”
There is one exception to this general rule. The Court has held that although the Sixth Amendment right to trial by jury requires a unanimous jury verdict in federal criminal trials, it does not require a unanimous jury verdict in state criminal trials. See Apodaca v. Oregon, 406 U. S. 404 (1972).
The precedential value of Apodaca, a case in which the Justices split 4-1-4, was at the center of the oral argument, although at times not as central as might be predicted. The reliance of Louisiana on Apodaca in stare decisis considerations was certainly discussed at length,including the issue of how many inmates would be effected by the Court's ruling. It was unclear how many persons were currently serving sentences under less than unanimous jury verdicts, although petitioner's counsel stated there were currently 36 cases on direct appeal.
However the Solicitor General of Louisiana largely advanced a different argument. She vigorously argued that the Sixth Amendment should not be read to require unanimous jury verdicts at all — whether or not in the context of incorporation. She stated that "nothing in the text, structure, or history of the Sixth Amendment requires unanimous jury verdicts." There seemed to be little support for this construction, although the Justices and opposing counsel did discuss the differences between unanimity and the "12" requirement which the Court has held is not constitutionally required.
There was little indication the Court was likely to revise its Sixth Amendment jurisprudence. And more indication that the Court would continue its trend of incorporating rights in the Bill of Rights as against the states, which would mean overruling Apodaca.
October 7, 2019 in Criminal Procedure, Due Process (Substantive), Federalism, Fourteenth Amendment, Interpretation, Oral Argument Analysis, Seventh Amendment, Sixth Amendment, Supreme Court (US) | Permalink | Comments (1)
Judge Victor Marrero (S.D.N.Y.) today dismissed President Trump's lawsuit that sought to halt a state grand jury subpoena issued to Mazars USA for Trump organization financial documents, including the President's tax returns. We posted most recently here.
The ruling deals a blow to President Trump's efforts to protect his tax returns from disclosure, and to halt any state criminal process against him. But it may be temporary: the Second Circuit immediately stayed the ruling pending expedited review; and whatever the Second Circuit says, this case seems destined for the Supreme Court.
The district court ruled that President Trump's suit was barred by Younger abstention, and that his constitutional claim likely failed on the merits.
As to Younger abstention, which requires federal courts to abstain from intervening in pending state court proceedings under certain circumstances, the court said that the grand jury subpoena was part of a pending state criminal proceeding (despite a circuit split on the question), that the state proceeding implicates important state interests, and that the state proceeding affords President Trump plenty of opportunities to raise his constitutional claims. The court rejected the President's claims that the state process was in bad faith or merely designed to harass him, and that the case raised extraordinary circumstances.
As to the underlying merits, which the court addressed "so as to obviate a remand" on President Trump's motion for a preliminary injunction if the Second Circuit overrules the abstention holding, the court flatly rejected the President's claim of absolute presidential immunity from all state criminal processes. The court said that it "cannot square a vision of presidential immunity that would place the President above the law with the text of the Constitution, the historical record, the relevant case law, or even the DOJ Memos on which the President relies most heavily for support." The court, citing Clinton v. Jones, said that the Supreme Court would likely reject the President's absolute, categorical approach to immunity in favor of a functional approach that "take[s] account of various circumstances concerning the appropriateness of a claim of presidential immunity from judicial process relating to a criminal proceeding" and to balance the competing interests in working out the immunity question.
The case now goes to the Second Circuit on an expedited basis. Again: the Second Circuit stayed the district court's ruling, which means that President Trump's federal case challenging the state subpoena is still alive. Whatever happens at the Second Circuit, this case will almost surely go to the Supreme Court.
Tuesday, September 24, 2019
New York DA Cyrus Vance, Jr., yesterday filed a motion to dismiss President Trump's federal lawsuit that seeks to shut down the state grand jury proceeding.
Recall that the state grand jury issued a subpoena to Mazurs USA for financial and tax records of a number of New York entities and individuals, including President Trump. President Trump then sued in federal court to halt the state process, arguing that he is absolutely immune from any criminal process. (His argument wasn't limited to just state criminal process or any criminal prosecution; instead, he argued that he is absolutely immune from any criminal process.)
Vance argues that 28 U.S.C. sec. 2283 and Younger abstention compel the federal court to dismiss the case. Section 2283 provides that "[a] court of the United States may not grant an injunction to stay proceedings in a State court except as expressly authorized by Act of Congress, or where necessary in aid of its jurisdiction, or to protect or effectuate its judgments." Similarly, Younger abstention requires a federal court to abstain from interfering in certain state-court proceedings.
Vance argues that the federal court should abstain from ruling on President Trump's constitutional claims until the state courts have a chance to do so. He says that there's no "special circumstances suggesting bad faith, harassment or irreparable injury that is both serious and immediate" that would justify an exception to the general abstention principle.
Moreover, Vance argues that President Trump failed to show irreparable harm and is wrong on the merits. As to harm, Vance says that subpoenaed records would be destroyed if the courts later rule the Mazurs subpoena invalid, and that the President's claims that he'd be distracted by the state criminal process is belied by the President's handling of other criminal processes. As to the merits--the President's sweeping claim of absolute immunity from any criminal process--Vance writes, "As the President's own papers make plain, no authority exists to support such a sweeping claim of immunity, which makes a showing of likelihood of success on the merits impossible."
Monday, September 23, 2019
In her Order in Galicia v. Trump, Judge Doris Gonzalez has ordered that President Trump appear for a videotaped deposition prior to trial to provide testimony for use at trial in this tort case.
The plaintiffs brought an action against Donald Trump, Donald Trump for President, the Trump Organization, and Keith Schiller for events in September 2015 when plaintiffs were protesting Trump's views as he was beginning his campaign for President. Plaintiffs allege that "several of Defendant Trump's bodyguards, including his confidant and chief security officer Keith Schiller, stormed Plaintiffs, pushed some of them down the sidewalk, using excessive force grabbed the signs from Plaintiffs and converted them to their own use." The case is proceeding to trial on claims of assault and battery, and against Donald Trump on a theory of respondeat superior. In 2016, a state judge granted a protective order against a motion to compel Trump's deposition before trial. When the case became ready for trial, plaintiffs issued a subpoena ad testificandum to compel Trump's testimony; Trump moved to quash, arguing that under Clinton v. Jones (1997), a president can only be deposed before trial and at the White House.
Judge Gonzalez began her discussion with a resort to the framers and Marbury v. Madison:
More than 200 years ago our founders sought to escape an oppressive, tyrannical governance in which absolute power vested with a monarch. A fear of the recurrence of tyranny birthed our three-branch government adorned with checks and balances. Chief Justice John Marshall famously stated, [t]he government of the United States has been emphatically termed a government of laws, and not of men. It will certainly cease to be deserve this high appellation, if the laws furnish no remedy for the violation of a vested legal right.” Marbury v. Madison, 1 Cranch 137 (1803). Put more plainly, no government official, including the Executive, is above the law.
Yet as Judge Gonzalez notes, the Court resolved the question of whether the President is absolved from legal responsibility for unofficial conduct in Clinton v. Jones. Further, the New York courts resolved the issue of whether the state courts could exercise jurisdiction over the President in Zervos v. Trump.
However, President Trump argued that his testimony could not be compelled for trial, but only at pretrial as some dicta in Clinton v. Jones indicated, and that in any event, the plaintiffs had waived the President's testimony by not appealing the earlier order finding a motion to compel premature. Further, Judge Gonzalez distinguished a Second Circuit case relied upon by Trump that depositions of "high-ranking officials" should only occur in exceptional circumstances by noting that this was the rule in litigation involving official action rather than the unofficial pre-Presidential action at issue in this case.
Judge Gonzalez ruled that "questions of fact exist" regarding Trump's "exercise of dominion and control over his employee defendants" and ordered President Trump to "appear for a videotaped deposition prior to the trial of this matter and provide testimony for the use at trial."
Friday, September 20, 2019
President Trump filed suit yesterday to halt the Manhattan D.A.'s criminal investigation into the President's hush-money payments in the run-up to the 2016 election. The President argues that he's absolutely immune from any criminal process, including criminal investigation.
Here's why (quoting the 1973 OLC memo):
"To wound [the President] by a criminal proceeding is to hamstring the operation of the whole governmental apparatus, both in foreign and domestic affairs." The President thus cannot be subject to criminal process, for any conduct of any kind, while he is serving as President.
The President also makes a federalism claim--that it would violate federal supremacy to permit the Manhattan D.A. to saddle the President with a criminal investigation.
The President's argument extends the view of the OLC that the President is immune to criminal prosecution while in office. (Here's the 1973 OLC memo drawing that conclusion; here's the 2000 OLC memo, same.) At the same time, it leaves open the possibility that a President could be subject to criminal investigation (and prosecution) after leaving office. (For that reason, it argues that it's not claiming that "the President is above the law.)
Wednesday, June 26, 2019
The Supreme Court ruled today in Tennessee Wine and Spirits Retailers Ass'n v. Thomas that Tennessee's 2-year durational-residency requirement for retail liquor store license applicants violates the dormant Commerce Clause and is not saved by the Twenty-first Amendment.
The 7-2 ruling, authored by Justice Alito, is a strong endorsement of the Court's dormant Commerce Clause jurisprudence, which sets limits on states' economic protectionism and discrimination against interstate commerce.
Justice Alito, joined by Chief Justice Roberts and Justices Ginsburg, Breyer, Sotomayor, Kagan, and Kavanaugh, wrote first that the residency requirement violated the dormant Commerce Clause. The Court said that while "[i]n recent years, some Members of the Court have authored vigorous and thoughtful critiques of" the dormant Commerce Clause,
the proposition that the Commerce Clause by its own force restricts state protectionism is deeply rooted in our case law. And without the dormant Commerce Clause, we would be left with a constitutional scheme that those who framed and ratified the Constitution would surely find surprising.
The Court went on to say that Tennessee's 2-year durational-residency requirement "plainly favors Tennesseans over nonresidents" in violation of the doctrine.
As to the Twenty-first Amendment, the Court said that despite "the ostensibly broad text of Section 2 . . . we have looked to history for guidance, and history has taught us that the thrust of Section 2 is to 'constitutionaliz[e]' the basic structure of federal-state alcohol regulatory authority that prevailed prior to the adoption of the Eighteenth Amendment." Under that reading, the Court said that "as recognized during that period, the Commerce Clause did not permit the States to impose protectionist measures clothed as police-power regulations."
In short, "Section 2 cannot be given an interpretation that overrides all previously adopted constitutional provisions," including the dormant Commerce Clause, and therefore Tennessee's residency requirement isn't saved by the Twenty-first Amendment.
Justice Gorsuch, joined by Justice Thomas, dissented. Justice Gorsuch argued that the plain text of the Twenty-first Amendment, the history, and early Court interpretations all point toward permitting state residency requirements:
But through it all, one thing has always held true: States may impose residency requirements on those who seek to sell alcohol within their borders to ensure that retailers comply with local laws and norms. In fact, States have enacted residency requirements for at least 150 years, and the Tennessee law at issue before us has stood since 1939. Today and for the first time, the Court claims to have discovered a duty and power to strike down laws like these as unconstitutional.
Monday, June 17, 2019
The Supreme Court today upheld Virginia's ban on uranium mining against a federal preemption challenge by a mining company. The ruling says that the federal Atomic Energy Act does not preempt Virginia's ban.
The case, Virginia Uranium, Inc. v. Warren, arose when Virginia Uranium sought to mine raw uranium ore from a site near Coles Hill, Virginia. The problem: Virginia law prohibits uranium mining in the Commonwealth. So Virginia Uranium sued, arguing that the ban was preempted under the federal AEA.
The Court ruled 6-3 that the AEA did not preempt the Commonwealth's ban. Justice Gorsuch wrote the lead opinion, joined by Justices Thomas and Kavanaugh. He wrote that the AEA, by its plain terms, regulated milling and waste disposal, but not mining. So the AEA doesn't field-preempt Virginia's ban, and it doesn't obstacle-preempt Virginia's ban. Justice Gorsuch emphasized a textual approach, because, he argued, considering state legislative purposes (in a field preemption analysis) and congressional purposes (in an obstacle preemption analysis) would be fraught with difficulties and uncertainties.
Justice Ginsburg wrote a concurring opinion, joined by Justices Sotomayor and Kagan. She agreed with Justice Gorsuch, but argued that "his discussion of the perils of inquiring into legislative motive sweeps well beyond the confines of this case, and therefore seems to me inappropriate in an opinion speaking for the Court, rather than for individual members of the Court." Moreover, "Virginia Uranium's obstacle preemption arguments fail under existing doctrine, so there is little reason to question, as Justice Gorsuch does, whether that doctrine should be retained."
Chief Justice Roberts dissented, joined by Justices Breyer and Alito. He argued that Virginia sought an end-run around the AEA by banning mining (which the AEA doesn't regulate), but for the purpose of banning milling and waste (which the AEA does regulate).
Thus, the question before us is whether, consistent with the AEA and our precedents, the Commonwealth may purport to regulate a non-preempted field (mining safety) with the purpose and effect of indirectly regulating a preempted field (milling and [waste]). That should have made for an easy case.
Under our AEA precedents, a state law is preempted not only when it "conflicts with federal law," but also when its purpose is to regulate within a preempted field.
The Supreme Court today upheld the "separate sovereigns" doctrine that permits, consistent with double jeopardy, the prosecution of the same person for the same criminal act under state and federal law.
The ruling means that both a state government and the federal government can prosecute the same person for the same crime without running afoul of the Fifth Amendment's prohibition on double jeopardy.
It also means that those subject to federal prosecution in the Mueller investigation can be prosecuted under state law. That's significant, because President Trump can't pardon someone for a violation of state law.
The ruling, Gamble v. United States, grew out of a federal felony-in-possession charge against Terance Gamble after he had been convicted of felony in possession under Alabama law. Gamble argued that the federal charge violated double jeopardy. The Court disagreed.
Justice Alito wrote for the Court, including Chief Justice Roberts and Justices Thomas, Breyer, Sotomayor, Kagan, and Kavanaugh. Justice Alito made it simple:
We start with the text of the Fifth Amendment. Although the dual-sovereignty rule is often dubbed an "exception" to the double jeopardy right, it is not an exception at all. On the contrary, it follows from the text that defines that right in the first place. "[T]he language of the Clause . . . protects individuals from being twice put in jeopardy 'for the same offence,' not the same conduct or actions," as Justice Scalia wrote in a soon-vindicated dissent. And the term "'[o]ffense was commonly understood in 1791 to mean 'transgression,' that is, 'the Violation or Breaking of a Law.'" As originally understood, then, an "offence" is defined by a law, and each law is defined by a sovereign. So where there are two sovereigns, there are two laws, and two "offences."
The Court rejected Gamble's claim that the dual sovereignty doctrine contradicts the common-law rights that the Double Jeopardy Clause was originally understood to protect:
The English cases are a muddle. Treatises offer spotty support. And early state and federal cases are by turns equivocal and downright harmful to Gamble's position. All told, this evidence does not establish that those who ratified the Fifth Amendment took it to bar successive prosecutions under different sovereigns' laws--much less do so with enough force to break a chain of precedent linking dozens of cases over 170 years.
The Court also rejected his claim that "the Double Jeopardy Clause's incorporation against the states washed away any theoretical foundation for the dual-sovereignty rule," because "the premises of the dual-sovereignty doctrine have survived incorporation intact." "Incorporation meant that the States were now required to abide by this Court's interpretation of the Double Jeopardy Clause. But that interpretation has long included the dual-sovereignty doctrine, and there is no logical reason why incorporation should change it."
Justice Thomas wrote a concurring opinion and argued that "the Court's typical formulation of the stare decisis standard does not comport with our judicial duty under Article III because it elevates demonstrably erroneous decisions--meaning decisions outside the realm of permissible interpretation--over the text of the Constitution and other duly enacted federal law." Justice Thomas argued that the Court's strong application of stare decisis to "demonstrably erroneous precedent" means that the Court is making the law, and impermissibly encroaching on the role of Congress in violation of the separation of powers. If there were any doubt, he singled out precedents under substantive due process as examples of "demonstrably erroneous precedent."
Justice Ginsburg dissented, arguing that "[t]he United States and its constituent States, unlike foreign nations, are 'kindred systems,' 'parts of ONE WHOLE'" and that "[w]ithin that 'WHOLE,' the Federal and State Governments should be disabled from accomplishing together 'what neither government [could] do alone--prosecute an ordinary citizen twice for the same offense.'"
Justice Gorsuch also dissented, arguing that "this 'separate sovereigns exception' to the bar against double jeopardy finds no meaningful support in the text of the Constitution, its original public meaning, structure, or history."
In its divided opinion in Manhattan Community Access Corporation v. Halleck, a majority of the United States Supreme Court held that the actions of a private nonprofit corporation operating a public access television channel did not constitute sufficient state action warranting application of the First Amendment.
Recall that in the Second Circuit's divided opinion (2018), the majority concluded that the "public access TV channels in Manhattan are public forums and the MCAC's employees were sufficiently alleged to be state actors taking action barred by the First Amendment to prevent dismissal" of the complaint, thus reversing the district judge. Importantly, the public access channels are part of Time Warner's cable system and Time Warner is a private company. At the heart of the First Amendment claim are allegations that the Manhattan Community Access Corporation, known as Manhattan Neighborhood Network, MNN, suspended the plaintiffs, Halleck and Melendez, from airing programs over the MNN public access channels because of disapproval of the content. During oral argument the Justices grappled with the question of doctrines: whether general constitutional state action doctrine applied or whether public forum doctrine under the First Amendment applied or whether there is a convergence of the two doctrines.
Writing for the majority, Justice Kavanaugh, joined by C.J. Roberts, and Justices Thomas, Alito, and Gorsuch, concluded that general constitutional state action doctrine was the threshold — and determinative — issue. The Court rearticulated the applicable state action doctrine governing when a private entity can qualify as a state actor as limited to a few circumstances:
(i) when the private entity performs a traditional, exclusive public function (citing Jackson v. Metropolitan Edison Co. (1982));
(ii) when the government compels the private entity to take a particular action (citing Blum v. Yarestsky (1982);
(iii) when the government acts jointly with the private entity (citing Lugar v. Edmondson Oil Co. (1982)).
Interestingly, neither the majority nor dissenting opinion cited Edmonson v. Leesville Concrete Co. (1991), in which a six-Justice majority articulated a test for meeting the state action threshold when there was a private actor involved.
Justice Kavanaugh's opinion focused on the first circumstance, and stressed that the requirement means that the government must have traditionally and exclusively performed the function. Given that the relevant function was defined as the "operation of public access channels on a cable system," the Court had little difficulty in concluding that the requirement was not met under a "commonsense principle":
Providing some kind of forum for speech is not an activity that only governmental entities have traditionally performed. Therefore, a private entity who provides a forum for speech is not transformed by that fact alone into a state actor. After all, private property owners and private lessees often open their property for speech. Grocery stores put up community bulletin boards. Comedy clubs host open mic nights.
The majority further rejected the plaintiffs' argument that state action was present because New York City designated MNN to operate the public access channels and New York state heavily regulates public access channels. The majority stated, however, that even where there is a contract or monopoly, the private actor is not converted into a private actor into a state actor "unless the private entity is performing a traditional, exclusive government function."
The majority also rejected the plaintiffs' argument that the public access channels are the "property" of the state of New York rather than the property of the cable network (Time Warner) or of MNN itself. The majority found, however, that "nothing in the franchise agreements" suggests that the city "possesses any property interest" in Time Warner's cable system or in the public access channels operated by Time Warner. The government could have decided to operate the public access channels itself, in which case that might be different, but that did not happen here.
Dissenting, Justice Sotomayor, joined by Justices Ginsburg, Breyer, and Kagan, argued that the majority misconstrued the case before the Court and this case is actually "about an organization appointed to administer a constitutional public forum" and not simply "about a private property owner that simply opened up its property to others." For the dissenting Justices, when MNN accepted the contractual agency relationship, it "stepped into the City's shoes and thus qualifies as a state actor, subject to the First Amendment like any other." The dissent argued that MNN was not simply a private actor that "simply sets up shop against a regulatory backdrop," but that it occupies its role because it was asked by New York City to do so, and was deputized by the city to administer the public access channels. The dissent also argued that the requirement that the private actor be performing a traditional and exclusive function only applies when the "private actor ventures of its own accord into territory shared (or regulated) by the government." Otherwise, the doctor hired to provide medical care to state prisoners would not be a state actor, unlike the Court's unanimous holding in West v. Atkins (1988), because "Nobody thinks that orthopedics is a function 'traditionally exclusively reserved to the State.'"
The Court's divided opinion reveals an established political rift in state action doctrine and theory. In the penultimate paragraph in Justice Kavanaugh's opinion for the majority, he writes:
It is sometimes said that the bigger the government, the smaller the individual. Consistent with the text of the Constitution, the state-action doctrine enforces a critical boundary between the government and the individual, and thereby protects a robust sphere of individual liberty. Expanding the state-action doctrine beyond its traditional boundaries would expand governmental control while restricting individual liberty and private enterprise. We decline to do so in this case.
On the other hand, Justice Sotomayor for the four dissenting Justices concludes:
This is not a case about bigger governments and smaller individuals; it is a case about principals and agents. New York City opened up a public forum on public- access channels in which it has a property interest. It asked MNN to run that public forum, and MNN accepted the job. That makes MNN subject to the First Amendment, just as if the City had decided to run the public forum itself.
While the majority emphasizes that its decision is narrow and factbound, that does not make it any less misguided. It is crucial that the Court does not continue to ignore the reality, fully recognized by our precedents, that private actors who have been delegated constitutional responsibilities like this one should be accountable to the Constitution’s demands. I respectfully dissent.
Thus, while the decision seems narrow, it could be a harbinger of a narrowing of state action doctrine to release private entities that contract with the state from constitutional constraints unless the entities are performing a traditional and exclusive function of the government, even if the entities are "in the shoes" of the state.
Monday, June 10, 2019
The Supreme Court ruled today that federal law does not borrow state labor law on the Outer Continental Shelf. The unanimous ruling reverses the Ninth Circuit.
Given the unusual statutory provision at issue, and given the federal enclave status of the OCS, the ruling is quite narrow, based only on the particular statutory language, and does not say anything more general about the Court's preemption or federalism jurisprudence.
The case, Parker Drilling Management Services, Ltd. v. Newton, tested an unusual provision in federal law that applies to the OCS. That provision says that the laws of the adjacent state will apply to the OCS "[t]o the extent that they are applicable and not inconsistent with [federal law]." In other words, federal law applies on the OCS, and federal law borrows state law when it's "applicable and not inconsistent with" federal law.
So what happens when state law is more generous to workers than federal law? Does the state law apply (as it would under ordinary preemption analysis), or does the federal law apply?
A unanimous Supreme Court said that federal law applies. Justice Thomas, writing for the Court, noted first that the OCS is a federal enclave, where only federal law applies. (Remember, under the Act federal law borrows state law as its own.) He said that in that situation, ordinary preemption analysis doesn't apply; instead, the Court needs to determine what the phrase "applicable and not inconsistent" means in a location where the default is that only federal law applies.
Taken together, these provisions convince us that state laws can be "applicable and not inconsistent" with federal law under [the Act] only if federal law does not address the relevant issue. As we have said before, [the Act] makes apparent "that federal law is 'exclusive' in its regulation of [the OCS], and that state law is adopted only as surrogate federal law." [The Act] extends all federal law to the OCS, and instead of also extending state law writ large, it borrows only certain state laws. These laws, in turn, are declared to be federal law and are administered by federal officials. Given the primacy of federal law on the OCS and the limited role of state law, it would make little sense to treat the OCS as a mere extension of the adjacent State, where state law applies unless it conflicts with federal law. That type of pre-emption analysis is applicable only where the overlapping, dual jurisdiction of the Federal and State Governments makes it necessary to decide which law takes precedence. But the OCS is not, and never was, part of a State, so state law has never applies of its own force.
Friday, June 7, 2019
In its unanimous opinion in State of Washington v. Arlene's Flowers, the Washington Supreme Court concluded there was no First Amendment infringement when the state found Arlene's Flowers violated the Washington Law Against Discrimination (WLAD), by refusing to sell wedding flowers to a same-sex couple.
Recall that in June 2018, the United States Supreme Court without opinion, in Arlene's Flowers v. Washington, granted the petition for writ of certiorari, vacated the judgment of the Washington Supreme Court, and remanded the case for consideration in light of its decision earlier than month in Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Comm'n. Given the holding in Masterpiece Cakeshop that the Colorado Civil Rights Commission, or one specific commissioner, exhibited "hostility" to the cakemaker in that case, the Washington Supreme Court was now tasked with determining whether there was a similar hostility towards the religion of the florist in Arlene's Flowers, Baronnelle Stutzman, and if so, applying strict scrutiny.
The Washington Supreme Court, on page 2 of its 76 page opinion, proclaimed: "We now hold that the answer to the Supreme Court's question is no; the adjudicatory bodies that considered this case did not act with religious animus when they ruled that the florist and her corporation violated the Washington Law Against Discrimination . . . ."
The Washington Supreme Court's lengthy opinion admittedly includes passages from its 2017 opinion which thoroughly discussed and applied the First Amendment standards, but it also carefully delves into the question of government hostility toward religion. The court found irrelevant one contested incident involving the Attorney General of Washington which occurred after the Washington Supreme Court's 2017 opinion, noting that the issue was one of adjudicatory animus and not executive branch animus; any claim that there was selective prosecution lacked merit. The Washington Supreme Court also rejected Stutzman's claim that the scope of the injunction in the 2017 opinion mandated that Stutzman "personally attend and participate in same-sex weddings."
The Washington Supreme Court's opinion concludes that "After careful review on remand, we are confident that the courts resolved this dispute with tolerance, and we therefore find no reason to change our original judgment in light of Masterpiece Cakeshop. We again affirm the trial court's rulings."
It is a solid well-reasoned unanimous opinion, but given this hard-fought and well-financed litigation, it's likely that Arlene's Flowers will again petition the United States Supreme Court for certiorari.
image: Vincent Van Gogh, Twelve Sunflowers in a Vase, circa 1887, via.
June 7, 2019 in Courts and Judging, Family, Federalism, First Amendment, Fourteenth Amendment, Gender, Opinion Analysis, Recent Cases, Religion, Sexual Orientation, State Constitutional Law, Supreme Court (US) | Permalink | Comments (0)
Wednesday, May 22, 2019
The State of New York and a host of other states and cities yesterday filed suit in the Southern District of New York to halt the implementation of President Trump's "conscience protection" regulations for health-care providers.
We posted on the regs here. In short, they require health-care providers and state and local recipients of certain federal funds to permit employees to opt out of providing health services if they have a religious objection to those services.
New York's lawsuit follows San Francisco's, filed earlier this month.
The plaintiffs in the New York case allege that the regs exceed statutory authority, violate federal law, are arbitrary and capricious, and violate the Spending Clause, the separation of powers, and the Establishment Clause.
Plaintiffs focus on the expansive definitions in the new regs that sweep beyond the administration's statutory authority, and HHS's ability under the regs to cut off vast amounts of federal funding to states and local governments who do not comply with the "conscience protections." They allege that they'll be harmed in their ability to enforce their own laws (which, among other things, require health-care providers to provide certain services, irrespective of religious beliefs) and in their receipt of federal funds.
In a bit of what-goes-around-comes-around, the plaintiffs draw on the Court's ruling in NFIB v. Sebelius--the Medicaid expansion portion of the ruling--to argue that the sheer amount of threatened federal funds under the new regs turns the condition on federal funding for state and local governments (compliance with the "conscience protections") from pressure into compulsion, in violation of federalism principles. They also contend that the conditions are vague, and that the administration impermissibly imposed them without prior congressional action in violation of the separation of powers. (This latter point is based on HHS's apparent ability to withhold funds not authorized for withholding under existing federal law.)
The Supreme Court ruled on Monday that a drug manufacturer, in order to escape state-tort failure-to-warn liability, must show that "it fully informed the FDA of the justifications for the warning required by state law and that the FDA, in turn, informed the drug manufacturer that the FDA would not approve changing the drug's label to include that warning." The Court also ruled that this was a legal question for a judge, not an evidentiary (factual) question for the jury.
The ruling clarifies the standard that the Court set for "impossibility" preemption cases ten years ago in Wyeth v. Levine. In that case, the Court held that in order to show that a drug manufacturer could not simultaneously comply with federal and state requirements on drug warning labels--and that federal law therefore preempted state law--the manufacturer had to show "clear evidence" that the FDA would not have approved a change to the drug label (even as state law required it). Lower courts had trouble with the "clear evidence" standard--what it meant, and who (judge or jury) should apply it. Monday's case, Merck Sharp & Dohme Corp. v. Albrecht, clarified things a little.
The issue pits the FDA's authority to approve the contents of drug-label warnings, or to say that a manufacturer cannot include certain warnings, against state tort standards that require warnings in order to avoid failure-to-warn liability. As the Court explained:
The central issue in this case concerns federal preemption, which as relevant here, takes place when it is "impossible for a private party to comply with both state and federal requirements." The state law that we consider is state common law or state statutes that require drug manufacturers to warn drug consumers of the risks associated with drugs. The federal law that we consider is the statutory and regulatory scheme through which the FDA regulates the information that appears on brand-name prescription drug labels.
The Court in Wyeth v. Levine held that a manufacturer had to show "clear evidence" that the FDA would not have approved a warning in order to demonstrate that it couldn't simultaneously comply with federal law (rejecting a warning) and state law (requiring it). The Court on Monday elaborated:
In a case like Wyeth, showing that federal law prohibited the drug manufacturer from adding a warning that would satisfy state law requires the drug manufacturer to show that it fully informed the FDA of the justifications for the warning required by state law and that the FDA, in turn, informed the drug manufacturer that the FDA would not approve changing the drug's label to include that warning.
But the Court said that this isn't a traditional evidentiary or factual standard. Instead, it's a legal question, and it goes to the judge, not the jury. At bottom, then, a judge has to decide "whether the relevant federal and state laws 'irreconcilably conflic[t]."
This could be tough for manufacturers, given FDA labeling options. Under FDA regs there are at least two ways that a manufacturer might add a warning: through the FDA approval process; or through the "changes being effected" ("CBE") process, which allows a manufacturer unilaterally to strengthen a warning when there is "newly acquired information" about the drug (subject to later FDA review and approval). Moreover, the Court has been clear: the manufacturer bears ultimate responsibility for appropriate and sufficient warnings.
In this case, Merck went back and forth with the FDA on adding a warning about atypical femoral fracture to its label for Fosamax, an oral drug that slows the breakdown of old bone cells and thus helps postmenopausal women avoid osteoporotic fractures. Merck added a "precaution" about "low-energy femoral shaft fracture" through the FDA-approval process, but the FDA rejected Merck's request to cross-reference a longer discussion that focused on "the risk of stress fractures associated with Fosamax." (The FDA explained that "[i]dentification of 'stress fractures' may not be clearly related to the atypical subtrochanteric fractures that have been reported in the literature.") Merck added that change itself through the CBE process, but made no changes to the "Precautions" section of the label--the section at issue in this case.
On remand, then, the judge will have to apply the refined Wyeth v. Levine standard to these facts.
Justice Breyer wrote the majority opinion, joined by Justices Ginsburg, Sotomayor, Kagan, and Gorsuch.
Justice Thomas concurred, expressing his "skeptic[ism] that 'physical impossibility' is a proper test for deciding whether a direct conflict exists between federal and state law." Instead, he would look to a "logical contradiction" between the two.
Justice Alito, joined by Chief Justice Roberts and Justice Kavanaugh, concurred in the judgment only. He wrote to emphasize that Congress enacted legislation after Wyeth v. Levine that may bear on the preemption analysis, and to argue that the facts are somewhat more complicated than the majority opinion reflects. (Justice Alito dissented in Wyeth v. Levine. He was joined by Chief Justice Roberts and Justice Scalia.)
Tuesday, May 21, 2019
The Supreme Court ruled on Monday that Crow Tribe off-reservation hunting rights, established pursuant to a 1868 treaty with the United States, didn't expire when Wyoming became a state. The ruling affirms a more recent approach to determining when Native American treaty rights end (or not) upon a territory's statehood. It's also a victory for Tribe member Clayvin Herrera, who was charged and convicted by Wyoming state authorities for hunting in Bighorn National Forest (outside the Crow reservation) in the off-season and without a license.
The case, Herrera v. Wyoming, tested the durability of Crow Tribe members' off-reservation hunting rights (established pursuant to a 1868 treaty with the Untied States) in the wake of Wyoming's statehood. The state claimed that Tribe members no longer had off-reservation hunting rights (and therefore that it could prosecute Herrera for hunting in Bighorn, in Wyoming), because the treaty expired when Wyoming became a state. The Court disagreed.
Justice Sotomayor, joined by Justices Ginsburg, Breyer, Sotomayor, Kagan, and Gorsuch, held that the treaty did not expire upon Wyoming's statehood. The Court rejected its approach to the question in Ward v. Race Horse (1896) in favor of a later approach in Minnesota v. Mille Lacs Band of Chippewa Indians (1999). Race Horse held that treaty-based rights did not survive statehood, because (1) treaty-based hunting rights would mean that the state was not admitted on "equal footing" with existing states (because the state couldn't enforce hunting restrictions within its territory) and (2) there was no evidence in the treaty in that case that Congress intended the treaty right to continue in "perpetuity."
The Court said that Mille Lacs correctly determined that both of those reasons lacked merit. As to the first, "[l]ater decisions showed that States can impose reasonable and nondiscriminatory regulations on an Indian tribe's treaty-based hunting, fishing, and gathering rights on state land when necessary for conservation." Instead of drawing on equal footing, Mille Lacs said that Congress "must clearly express" its intent to abrogate Native American treaty rights. As to the second, Mille Lacs said that the Race Horse standard was too broad, "given that almost any treaty rights--which Congress may unilaterally repudiate--could be described in those terms." While Mille Lacs didn't overturn Race Horse, it severely undermined it.
In short, Mille Lacs
established that the crucial inquiry for treaty termination analysis is whether Congress has expressly abrogated an Indian treaty right or whether a termination point identified in the treaty itself has been satisfied. Statehood is irrelevant to this analysis unless a statehood Act otherwise demonstrates Congress' clear intent to abrogate a treaty, or statehood appears as a termination point in the treaty.
Applying the Mille Lacs standard, the Court ruled that nothing in Wyoming's statehood act showed that Congress intended to end the treaty's hunting rights, or that the Crow Tribe would have understood it this way. The Court rejected Wyoming's argument that such intent was implied ("something that Mille Lacs forbids").
Finally, the Court ruled that Bighorn wasn't "occupied" for the purpose of the treaty (which allows off-reservation hunting only in "unoccupied" lands), because it's "free of residence or settlement by non-Indians." (According to the Court, this is how the Tribe would've understood "occupied" when it signed the treaty.)
The Court also rejected Wyoming's argument that Herrera was precluded from making this argument, because a Crow Tribe member made a similar argument, and lost, in an earlier Tenth Circuit case. The Court held that the law changed (because Mille Lacs came down since that Tenth Circuit ruling), and therefore Herrera's argument wasn't "issue precluded."
Justice Alito, joined by Chief Justice Roberts and Justices Thomas and Kavanaugh, dissented. Justice Alito wrote that the Court's "interpretation of the treaty is debatable and is plainly contrary to [Race Horse], which construed identical language in a closely related treaty." He also argued that Herrera was issued-precluded from raising his argument, because the Tenth Circuit already ruled in the case referenced above.
Monday, May 13, 2019
The Supreme Court ruled today in Franchise Tax Board v. Hyatt that states enjoy sovereign immunity from private suits in the courts of other states. The sharply divided ruling (5-4, along conventional ideological lines) overruled Nevada v. Hall and significantly extends state sovereign immunity.
The ruling means that states now cannot be sued by private parties in the courts of other states. It's a boon for the states--and a blow to anyone who wants to sue a state in another state's courts--although, as Justice Breyer noted in dissent, states routinely granted immunity to sister states, anyway--but as a matter of comity. Today's ruling constitutionalizes that practice.
The Court's opinion looks to "our constitutional structure" and the "historical evidence showing a widespread preratification understanding that States retained immunity from private suits, both in their own courts and in other courts." It is devoid of textual support--a curiosity, given the majority justices' otherwise focus on text and originalism as principal sources of constitutional construction.
Justice Thomas wrote for the Court, joined by Chief Justice Roberts and Justices Alito, Gorsuch, and Kavanaugh. Justice Thomas wrote that "Hall's determination that the Constitution does not contemplate sovereign immunity for each State in a sister State's courts misreads the historical record and misapprehends the 'implicit ordering of relationships within the federal system necessary to make the Constitution a workable governing charter and to give each provision within that document the full effect intended by the Framers.'" He said that "[i]n short, at the time of the founding, it was well settled that States were immune under both the common law and the law of nations," and that "[t]he founding generation thus took as given that States could not be haled involuntarily before each other's courts." He wrote that the Eleventh Amendment (though not directly applicable to this issue) reaffirmed the earlier understanding that States enjoy immunity.
Justice Breyer dissented, joined by Justices Ginsburg, Kagan, and Sotomayor. Justice Breyer noted that preratification immunity of states was based on comity (that is, grace), not on legal obligation, and that states therefore could withdraw their recognition of another state's immunity "upon notice at any time, without just offense" (Quoting Justice Story in The Santissima Trinidad.) He wrote that Hall correctly concluded that ratification of the Constitution did not alter this comity-based immunity "in any relevant respect." Neither the Eleventh Amendment nor the Full Faith and Credit Clause (nor anything else in the text) required states to grant each other sovereign immunity, and "nothing 'implicit in the Constitution' treats States differently in respect to immunity than international law treats sovereign nations."
At any rate, I can find nothing in the 'plan of the Convention' or elsewhere to suggest that the Constitution converted what had been the customary practice of extending immunity by consent into an absolute federal requirement that no State could withdraw. None of the majority's arguments indicates that the Constitution accomplishes any such transformation.
Justice Breyer also argued that "stare decisis requires us to follow Hall, not overrule it."
Friday, April 26, 2019
In its extensive opinion in Hodes & Nauser v. Schmidt, the Supreme Court of Kansas held that the right to abortion in protected under its state constitution and regulations of the fundamental right should be subject to strict scrutiny.
The per curiam opinion is exceedingly clear that the opinion rests on independent state constitutional grounds and that it is interpreting §1 of the Kansas state Constitution, adopted in 1859: "All men are possessed of equal and inalienable natural rights, among which are life, liberty, and the pursuit of happiness." The court specifically finds that this provision creates judicially enforceable "natural rights" such as the right to "personal autonomy" to make decisions regarding our bodies, health care, family formation, and family life, including a woman's right to decide whether to continue a pregnancy.
Having held that the right to an abortion is encompassed within the fundamental right bodily autonomy, the Kansas Supreme Court held that strict scrutiny should apply, which the court articulated as prohibited the state from restricting that right unless it can show it is doing so to further a compelling government interest and in a way that is narrowly tailored to that interest.
At issue in the case is Kansas S.B. 95, passed in 2015, now K.S.A. 65-6741 through 65-6749, which prohibits physicians from performing a specific abortion method referred to in medical terms as Dilation and Evacuation (D & E) except when "necessary to preserve the life of the pregnant woman" or to prevent a "substantial and irreversible physical impairment of a major bodily function of the pregnant woman."
The trial court had issued a preliminary injunction, which the Kansas Supreme Court upheld, but remanded the case for a fuller evidentiary hearing applying strict scrutiny.
via & caption: Kansas Supreme Court
Seated left to right: Hon. Marla J. Luckert, Hon. Lawton R. Nuss, Chief Justice; Hon. Carol A. Beier.
Standing left to right: Hon. Dan Biles, Hon. Eric S. Rosen, Hon. Lee A. Johnson, and Hon. Caleb Stegall.
In a concurring opinion, Justice Dan Biles argued that the majority should be more explicit in articulating how strict scrutiny should be applied in the abortion context, suggesting what "our state test should look like using an evidence-based analytical model taken from Whole Woman's Health v. Hellerstedt" (2016). Justice Biles provided a very detailed roadmap that would be attractive to the trial court. Justice Biles also placed the decision within developments in state constitutional law on abortion:
It is also worth mentioning our court has not gone rogue today. By my count, appellate courts in 17 states have addressed whether their state constitutions independently protect a pregnant woman's decisions regarding her pregnancy from unjustifiable government interference. Of those, 13 have plainly held they do. [citations omitted].
The sole dissenting Justice of the seven Justices of the Kansas Supreme Court (pictured above) was Justice Caleb Stegall, who relied on numerous dissenting opinions in both the United States Supreme Court and Kansas Supreme Court. He began his opinion by stating "This case is not only about abortion policy—the most divisive social issue of our day—it is more elementally about the structure of our republican form of government." In essence, he considers the majority to be taking an activist stance. The majority opinion does devote more than a little attention to refuting and engaging with the dissent's arguments.
Because the case cannot be reviewed by the United States Supreme Court (given that the state's highest court decided it on the independent ground of its state constitution, unless it is argued it infringes on another constitutional right), subsequent constitutional law issues will be concentrated on what happens in the trial court and what might happen in other states.
April 26, 2019 in Abortion, Courts and Judging, Due Process (Substantive), Family, Federalism, Fourteenth Amendment, Jurisdiction of Federal Courts, Opinion Analysis, State Constitutional Law, Supreme Court (US) | Permalink | Comments (0)
In an opinion in Amawi v. Pflugerville Independent School District, United States District Judge for the Western District of Texas, Judge Robert Pittman, issued a temporary injunction against Texas Gov. Code § 2270.001 et seq., also known as Texas H.B. 89, passed in 2017.
HB 89 prohibits governmental entities from entering into contracts for goods or services unless the contract contains a written verification that the contractor does not and will not "boycott Israel." Texas essentially admitted HB 89 is targeted at participants in the BDS (boycott, divest, and sanction) movement which protests Israel's "occupation of Palestinian territory and its treatment of Palestinian citizens and refugees." The five plaintiffs —a speech pathologist contracting with a school district; a freelance writer, artist, interpreter, and translator contracting with a university; and three university students who would contract with high schools as debate tournament judges — refused to sign the required statement that they did not and would not boycott Israel.
Judge Pittman easily found that the plaintiffs had standing, that their claims were ripe, and that the action was not barred by Eleventh Amendment immunity.
On the merits of the First Amendment claims, Judge Pittman's careful and well reasoned opinion first concluded that the prohibition of a boycott was inherently expressive activity protected by the First Amendment. The parties had raised what Judge Pittman called "dueling precedents": NAACP v. Claiborne Hardware Co. (1992) and Rumsfeld v. FAIR (2006). He concluded:
Claiborne, not FAIR, governs this case. Texas does not dispute that Plaintiffs’ boycotts are political; they support the BDS movement’s “dispute with the Israeli government’s policies.” Claiborne deals with political boycotts; FAIR, in contrast, is not about boycotts at all. The Supreme Court did not treat the FAIR plaintiffs’ conduct as a boycott: the word “boycott” appears nowhere in the opinion, the decision to withhold patronage is not implicated, and Claiborne, the key decision recognizing that the First Amendment protects political boycotts, is not discussed.
Moreover, Judge Pittman stated, even if "it were generally true that boycotts are not inherently expressive, H.B. 89, by its terms, applies only to expressive boycotts," given the statutory definitions. Judge Pittman then rejected the arguments of Texas that exceptions to Claiborne were applicable.
Judge Pittman then found that the H.B. 89 was viewpoint and content discrimination, and was not government speech under Walker v. Texas Div., Sons of Confederate Veterans, Inc. (2015). Applying the applicable standard of strict scrutiny, Judge Walker found that the asserted compelling governmental interests failed. Judge Pittman found two of the interests — prohibiting national-origin discrimination, and prohibiting state contractors from violating anti-discrimination principles — to essentially be not the actual interests underlying H.B. 89. Judge Pittman noted the statute does not refer to the "national origin" or "nationality" of individuals but to "the nation of Israel." Judge Pittman described the statute as being "underinclusive" in this way, providing examples of who would and would not be covered by the statute. As to the third interest asserted by Texas — aligning the state's commercial interests with Israel because it is “one of the few democracies in the Middle East and an ally of the United States and this State" — Judge Pittman essentially found this was not compelling. Texas had argued that “the First Amendment does not prevent restrictions directed at commerce or conduct from imposing incidental burdens on speech,” but Judge Pittman found that this was not an "incidental burden" on speech, but targeted specific speech directly.
Judge Pittman then proceeded to an analysis of the means chosen, although clearly stated that because "H.B. 89 is not justified by any compelling state interest, no amount of narrowing application will preserve it from constitutional attack. But even if Texas’s stated interests were the actual interests advanced by the statute—and even if they were compelling—the Court finds that H.B. 89 still sweeps too broadly."
Judge Pittman's extensive and detailed opinion then found that plaintiffs' additional First Amendment arguments — that the statute is an unconstitutional condition, that it was compelled speech, and that it was unconstitutionally vague — all had merit.
The constitutionality of anti-BDS statutes is being vigorously litigated and Judge Pittman's decision is sure to be appealed. The opinion's perspective on the popularity of anti-BDS statutes is quite interesting:
Twenty five states have enacted similar legislation or issued executive orders restricting boycotts of Israel, and Congress has declared its opposition to the BDS movement, see 19 U.S.C. § 4452. In Texas, only five legislators voted against H.B. 89. Texas touts these numbers as the statute’s strength. They are, rather, its weakness. “If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.” West Virginia State Bd. of Educ. v. Barnette (1943).
[some citations omitted].