Thursday, February 14, 2019
The Third Circuit ruled that the Pennsylvania Liquor Control Board is entitled to Eleventh Amendment immunity from a suit for monetary damages by an employee who alleged that the PLCB discriminated against him in violation of the Equal Protection Clause. The ruling ends the case.
The case, Patterson v. PLCB, arose when a PLCB employee accused the Board of discriminating against him because of his race. The employee sued for monetary damages; the PLCB moved to dismiss under Eleventh Amendment immunity; and the district court dismissed the case.
The Third Circuit affirmed. The court ruled that the PLCB, an "independent" state agency, is entitled to Eleventh Amendment immunity under the circuit's three-part balancing test. The court said first that "the state is not legally responsible for adverse judgments, the PLCB can satisfy a judgment using revenue obtained from liquor sales, and the PLCB is responsible for its own debts"--weighing against immunity. Second, the court said that the state treats the Board as an arm of the state--the Board is separately incorporated, it has its own power to sue and be sued, it's immune from state taxes, and state law considers the Board an arm of the state--weighing in favor of immunity. Finally, the court said that the Board's governing structure and oversight by the state weigh in favor of immunity. On balance, the court held that the Board gets immunity.
Wednesday, January 2, 2019
In a column at The Atlantic, "The Path to Give California 12 Senators, and Vermont Just One," subtitled "Maybe the two-senators-per-state rule isn’t as permanent as it seems," Political Science Professor Eric Orts agrees with many others that the Senate is essentially anti-democratic and that the time has come to change the 2 senators from every state rule.
Orts recognizes that the 2 Senators per state rule is doubly-demanded by the text of the Constitution: Not only does Article I §3 provide that "The Senate of the United States shall be composed of two Senators from each State," but Article V respecting the amendment process specifically provides "no State, without its Consent, shall be deprived of its equal Suffrage in the Senate."
Orts proposes that a way around these Constitutional commands — at least "arguably"— is through Congressional action. Orts contends that Congress could pass a law restructuring Senate representation like this:
Start with the total U.S. population, then divide by 100, since that’s the size of the current, more deliberative upper chamber. Next, allocate senators to each state according to their share of the total; 2/100 equals two senators, 3/100 equals three, etc. Update the apportionment every decade according to the official census.
Congressional power to do so, he seems to contend, would be grounded most obviously in the Reconstruction Amendments. He cites Equal Protection Clause cases such as Reynolds v. Sims (1964) and Bush v. Gore (2000), and argues that although
the Court trimmed a portion of the Voting Rights Act in Shelby County v. Holder in 2013, Chief Justice John Roberts, in his majority opinion, reaffirmed the authority of Congress to regulate in this field and endorsed a forward-looking orientation. “The Fifteenth Amendment commands that the right to vote shall not be denied or abridged on account of race or color, and it gives Congress the power to enforce that command," he wrote. “The Amendment is not designed to punish for the past; its purpose is to ensure a better future.”
Thus, inherent in Orts's argument is not simply that the Senate does not adequately represent the population of the United States but that this inadequacy is racialized. As he notes, under the current configuration it is states with small predominantly white populations that benefit: "in California, 38 percent of citizens are white. In Texas, that figure is 43 percent," while in the two smallest states, "Vermont is 94 percent white, and Wyoming is 86 percent white."
Indeed, Orts states that his proposal
corrects a heavy, unjustified bias favoring white citizens in the Senate. It doesn’t go too far to describe the current Senate apportionment as a vehicle entrenching white supremacy.
Would the Supreme Court uphold such a statute? Orts suggests that the Court could "stay out of the mix" by deferring to Congress or invoking the political question doctrine.
Would Congress ever pass such a statute? Orts admits that it is unlikely in large part because a more democratic Senate is a more Democratic party Senate. But, he ends, "who knows" what 2020 will bring.
[image: United States Capitol by C. E. Loven after photograph of drawing by Thomas U. Walter, via]
Saturday, December 1, 2018
Judge Edgardo Ramos (S.D.N.Y.) this week issued a sweeping ruling against the Trump Administration and its attempts to clamp down on sanctuary jurisdictions. The ruling is a significant victory for sanctuary jurisdictions, and a blow to the Trump Administration.
The case involves the states of New York, Connecticut, New Jersey, Rhode Island, and Washington; the commonwealths of Massachusetts and Virginia; and the city of New York. These jurisdictions sued the Administration to halt its unilateral anti-sanctuary conditions on their DOJ JAG/Byrne grants. In particular, they sought to stop the Administration from enforcing its three conditions on grant-receiving jurisdictions, on threat of losing their grants: (1) the "notice condition," which requires jurisdictions to give advance notice to DHS of the scheduled release date and time of aliens housed in state or local correctional facilities; (2) the "access condition," which requires jurisdictions to give federal agents access to aliens in state or local correctional facilities in order to question them about their immigration status; and (3) the "1373 compliance" condition, which requires jurisdictions to comply with 8 U.S.C. Sec. 1373, which, in turn, prohibits state or local governments from prohibiting their officials from communicating with the federal government about the immigration status of detainees.
Importantly, former AG Sessions imposed these conditions himself, without specific congressional authority (or any congressional action).
The court ruled that DOJ lacked statutory authority to impose the conditions, and thus acted ultra vires and in violation of the separation of powers in imposing them unilaterally (that is, without specific congressional authority). It also ruled that the conditions were arbitrary and capricious in violation of the Administrative Procedure Act.
As to Section 1373, the court said that it violated the anti-commandeering principle, based on Murphy v. NCAA. (The anti-commandeering principle says that the federal government can't compel a state to act in its sovereign capacity. Recall that the Court held in Murphy extended this principle to when the government compels a state not to act--as in Section 1373.)
The court granted the plaintiffs' request for mandamus relief and ordered the government to reissue their Byrne grant award documents without the conditions. It also enjoined the government from imposing the conditions against any of the plaintiffs in the future.
Friday, November 23, 2018
In her Decision and Order in People of State of New York v. Donald Trump (and three of the Trump children and the Trump Foundation), Justice Saliann Scarpulla denied Trumps' motion to dismiss the complaint by New York's Attorney General seeking dissolution of the Trump Foundation for violations of New York's Not-for-Profit Corporation Law and New York Estates, Powers, and Trusts Law.
The motion to dismiss argued in part that the state court lacked jurisdiction over "Mr. Trump" because pursuant to the Supremacy Clause, Article VI, a "sitting president may not be sued. As Justice Scarpulla stated, the New York Attorney General noted that Trump "failed to cite a single case in which any court has dismissed a civil action against a sitting president on Supremacy Clause grounds, where, as here, the action is based on the president's unofficial acts." Justice Scarpulla relied the United States Supreme Court's unanimous 1997 decision of Clinton v. Jones holding that then-President Clinton was subject to a civil action, and agreeing with another New York judge in Zervos v. Trump, held that this extended to state courts as well as federal. Justice Scarpulla rejected Trump's arguments that state courts are less fair to federal officials and less able to manage accommodations for a sitting president, pointing out that state courts were equally fair and competent. She also rejected the argument that state courts were less suited to address legal issues against federal officials: "The dissenting opinion that Respondents cite for this proposition simply noted that federal courts have greater expertise than state courts in applying federal law" and here, "resolution of the petition is governed entirely by New York law, thus a federal court's alleged superior knowledge of federal law is inapposite."
The Trump respondents also argued the petition should be dismissed because of bias by the former Attorney General and the office as a whole. Justice Scarpulla concluded that there was not a sufficient evidentiary basis for bias, conflict of interest, or abuse of confidence, and that "given the very serious allegations set forth in the petition," there is "no basis for finding that animus and bias were the sole motivating factors" for the petition.
The Trump respondents also raised grounds for dismissal of specific claims, including claims surrounding the misuse of foundation funds during the campaign; Justice Scarpulla rejected all of these.
Justice Scarpulla's order notes that the Foundation has been "attempting to voluntarily dissolve for the past two years" and urges the parties to reach an agreement leading to that dissolution. Justice Scarpulla did dismiss as moot one count of the petition which sought an injunction against continuing operation of the Foundation, stating that the Trumps were attempting to dissolve the foundation and that no injunction was necessary.
This decision by a trial judge — New York's Supreme Courts are trial courts — is not a final order, but if Trump's past litigation strategies are any indication, he will attempt to forestall answering the petition, which Justice Scarpulla ordered be done within 45 days.
In an opinion in Jackson Women's Health Organization v. Currier, United States District Judge Carlton Reeves enjoined the Mississippi law banning abortions after 15 weeks as unconstitutional.
Judge Reeves had previously entered a temporary restraining order, which this order and opinion makes permanent. Judge Reeves holds that Mississippi's H.B. 1510 is a clearly unconstitutional violation of due process under Planned Parenthood of Southeastern Pennsylvania v. Casey (1992) which makes viability the marker before which states may not ban abortions. Judge Reeves's opinion then asks "So, why are we here?" The opinion answers its own query by explaining that "the State of Mississippi contends that every court who ruled on a case such as this “misinterpreted or misapplied prior Supreme Court abortion precedent," and argues that the bill only "regulates" abortions. Judge Reeves concluded that the State "characterization" of the law as a regulation was incorrect; the law's very title stated it was "to prohibit." Additionally, Judge Reeves concluded:
The State is wrong on the law. The Casey court confirmed that the “State has legitimate interests from the outset of the pregnancy in protecting the health of the woman and the life of the fetus that may become a child” and it may regulate abortions in pursuit of those legitimate interests.Those regulations are constitutional only if they do not place an undue burden on a woman’s right to choose an abortion.But “this ‘undue burden’/‘substantial obstacle’ mode of analysis has no place where, as here, the state is forbidding certain women from choosing pre-viability abortions rather than specifying the conditions under which such abortions are to be allowed.”There is no legitimate state interest strong enough, prior to viability, to justify a ban on abortions.
Judge Reeves also expressed "frustration" with the Mississippi legislature passing a law it knew was unconstitutional, "aware that this type of litigation costs the taxpayers a tremendous amount of money," to "endorse a decades-long campaign, fueled by national interest groups, to ask the Supreme Court to overturn Roe v. Wade." Judge Reeves chastised the Mississippi Legislature for its "disingenuous calculations," augmented with a footnote (n.40) that begins "The Mississippi Legislature has a history of disregarding the constitutional rights of its citizens," and followed by citation and parenthetical explanations of a half-dozen cases.
Judge Reeves' concluding section to the seventeen page opinion reiterates some of these concerns and adds that "With the recent changes in the membership of the Supreme Court, it may be that the State believes divine providence covered the Capitol when it passed this legislation. Time will tell." Judge Reeves specifically mentions the amicus brief of women in the legal profession regarding their abortions in Whole Woman's Health v. Hellerstedt (2016), and also adds:
The fact that men, myself included, are determining how women may choose to manage their reproductive health is a sad irony not lost on the Court. As Sarah Weddington argued to the nine men on the Supreme Court in 1971 when representing “Jane Roe,” “a pregnancy to a woman is perhaps one of the most determinative aspects of her life.”As a man, who cannot get pregnant or seek an abortion, I can only imagine the anxiety and turmoil a woman might experience when she decides whether to terminate her pregnancy through an abortion. Respecting her autonomy demands that this statute be enjoined.
Wednesday, November 21, 2018
Judge Bernard A. Friedman (E.D. Mich.) ruled that the federal criminal statute banning female genital mutilation exceeded Congress's authority and was therefore invalid. The ruling dismisses those counts in an indictment against Michigan doctors accused of performing the procedure.
The federal criminal ban reads,
Except as provided in subsection (b), whoever knowingly circumcises, excises, or infibulates the whole or any part of the labia majora or labia minora or clitoris of another person who has not attained the age of 18 years shall be fined under this title or imprisoned not more than 5 years, or both.
The government defended the statute under Congress's authority to enforce a treaty and its power to regulate interstate commerce. The court rejected both.
As to the treaty power, the court concluded that the statute wasn't rationally related to applicable provisions in the supporting treaty, the International Covenant on Civil and Political Rights. More, the court ruled that even if it were rationally related to the ICCPR, federalism principles restricted Congress from acting. That's because the U.S. entered the ICCPR with a reservation (valid under international law) that "this Convention shall be implemented by the Federal Government to the extent that it exercises legislative and judicial jurisdiction over the matters covered therein, and otherwise by state and local governments . . . ." And because intrastate criminal law is a traditional area for the states (and not the federal government), the reservation itself restricts Congress from acting. (Judge Friedman suggested that under Bond Congress might have lacked authority even without the reservation--just because the federal statute intrudes on states' exclusive authority over "local criminal activity.")
As to the Commerce Clause, the court ruled that the statute failed: FGM is not commerce (the government produced no evidence that it's done for money); there's no jurisdictional element in the statute; congressional fact-finding on the commercial connection was sparse; and FGM is a local activity that, without more, has no actual connection to the interstate economy.
Congress could certainly go back and fix any of this (if Judge Friedman is upheld on appeal). For example, it could clarify that the ICCPR bans FGM, and remove its reservation. Or it could incentivize states to criminalize FGM. As to the Commerce Clause, it could add a jurisdictional element and fact-finding--exactly what it did after the Court struck the Gun Free School Zone Act in Lopez. (It's not clear why the jurisdictional element wasn't in the act--enacted after Lopez--in the first place.)
Friday, November 2, 2018
In an Order in Georgia Coalition for the People's Agenda v. Kemp, United States District Judge Eleanor Ross has found that the challengers would be likely to succeed on the merits of their constitutional claim regarding Georgia's flagging of potential voters as noncitizens ineligible to vote. Recall that a different district judge recently issued an injunction against Secretary of State Kemp — who is also a candidate for Governor — in a challenge to the "mismatch" of voter names.
Here, Judge Ross articulated the appropriate framework as:
When deciding whether a state election law violates First and Fourteenth Amendment associational rights, we weigh the character and magnitude of the burden the State’s rule imposes on those rights against the interests the State contends justify that burden, and consider the extent to which the State’s concerns make the burden necessary.
Timmons v. Twin Cities Area New Party, 520 U.S. 351, 358 (1997).
Judge Ross first found that the burden was "severe for those individuals who have been flagged and placed in pending status due to citizenship." Discussing one particular person, Judge Ross stated that
it was not a nominal effort for him to vote; it was a burdensome process requiring two trips to the polls, his own research, and his hunting down a name and telephone number to give to election officials so that his citizenship status could be verified, all after he had already submitted proof of citizenship with his voter registration application. This is beyond the merely inconvenient.
Relying on Timmons, Judge Ross continued with a strict scrutiny analysis, finding that while the State's interest in ensuring only citizens vote was compelling, the specific means chosen were not narrowly tailored. Here, the focus was on the fact that 4 of the 5 ways in which the State proposed that persons could verify their citizenship required a "deputy registrar," which were derived from a previous settlement. However, Judge Ross declared that the court's hands were not tied as to this matter, and ultimately all 5 of the options "for allowing individuals with flags for citizenship to vote in the upcoming election, sweep broader than necessary to advance the State's interest, creating confusion as Election Day looms."
Judge Ross directed Brian Kemp in his official capacity as Secretary of State to:
Allow county election officials to permit eligible voters who registered to vote, but who are inaccurately flagged as non-citizens to vote a regular ballot by furnishing proof of citizenship to poll managers or deputy registrars.
Update the “Information for Pending Voters” on the Secretary of State’s website so that it provides (a) clear instructions and guidance to voters in pending status due to citizenship and (b) a contact name and telephone number that individuals may call with questions about the pending status due to citizenship.
Direct all county registrars, deputy registrars, and poll managers on how to verify proof of citizenship to ensure that they can properly confirm citizenship status consistent with this order. Issue a press release (a) accurately describing how an individual flagged and placed in pending status due to citizenship may vote in the upcoming election, as set forth herein; and (b) providing a contact name and telephone number that individuals may call with questions about the pending status due to citizenship.
Issue a press release (a) accurately describing how an individual flagged and placed in pending status due to citizenship may vote in the upcoming election, as set forth herein; and (b) providing a contact name and telephone number that individuals may call with questions about the pending status due to citizenship.
- Direct the county boards of elections to post a list of acceptable documentation to prove citizenship, which includes a naturalization certificate, birth certificate issued by a state or territory within the United States, U.S. passport, and other documents or affidavits explicitly identified by Georgia law and listed on the Georgia Secretary of State’s website, at polling places on Election Day.
Wednesday, October 10, 2018
In his opinion in Brackeen v. Zinke, United States District Judge for the Northern District of Texas, Reed O'Connor, entered summary judgment for the plaintiffs and found that portions of the Indian Child Welfare Act, ICWA are unconstitutional, specifically violating equal protection, the non-delegation doctrine of Article I, and the commandeering principle of the Tenth Amendment. Passed in 1978, the general purpose of ICWA is to prevent Native children from being removed from their families and tribes based on a finding that "an alarmingly high percentage of Indian families [were being] broken up by the removal, often unwarranted, of their children from them by nontribal public and private agencies” as Judge O'Connor's opinion acknowledged, quoting Adoptive Couple v. Baby Girl (2013) (quoting 25 U.S.C. § 1901(4)).
Judge Reed O'Connor, however, accepts an argument that was sidestepped by the United States Supreme Court in Baby Girl: that ICWA violates equal protection (applied to the federal government through the Fifth Amendment) by making a racial classification that does not survive strict scrutiny. Recall that in some briefs as well as in the oral argument, the specter of the racial classification was raised. In United States District Judge O'Connor's opinion, that specter is fully embodied. Judge O'Connor found that ICWA does make a racial classification, rejecting the government's view that the classification at issue was a political category. Judge O'Connor reasoned that ICWA defines Indian child not only by membership in an Indian child, but extends its coverage to children "simply eligible for membership who have a biological Indian parent." Thus, Judge O'Connor reasoned, ICWA's definition "uses ancestry as a proxy for race" and therefore must be subject to strict scrutiny. Interestingly, the United States government did not offer any compelling governmental interest or argued that the classification is narrowly tailored to serve that interest. Judge O'Connor nevertheless credited the Tribal Defendants/Intervenors assertion of an interest in maintaining the Indian child's relationship with the tribe, but found that the means chosen was overinclusive, concluding that
The ICWA’s racial classification applies to potential Indian children, including those who will never be members of their ancestral tribe, those who will ultimately be placed with non-tribal family members, and those who will be adopted by members of other tribes.
On the non-delegation claim, Judge Reed O'Connor found it fatal that ICWA allows Tribes to change the child placement preferences selected by Congress and which then must be honored by the states in child custody proceedings.
On the Tenth Amendment claim, Judge Reed O'Connor relied on the Court's recent decision in Murphy v. NCAA holding unconstitutional a federal law prohibiting states from allowing sports gambling regarding anti-commandeering, concluding that
Congress violated all three principles [articulated in Murphy] when it enacted the ICWA. First, the ICWA offends the structure of the Constitution by overstepping the division of federal and state authority over Indian affairs by commanding States to impose federal standards in state created causes of action. See 25 U.S.C. § 1915(a). Second, because the ICWA only applies in custody proceedings arising under state law, it appears to the public as if state courts or legislatures are responsible for federally-mandated standards, meaning “responsibility is blurred.” Third, the ICWA shifts “the costs of regulations to the States” by giving the sole power to enforce a federal policy to the States. Congress is similarly not forced to weigh costs the States incur enforcing the ICWA against the benefits of doing so. In sum, Congress shifts all responsibility to the States, yet “unequivocally dictates” what they must do.
[citations to Murphy omitted].
October 10, 2018 in Congressional Authority, Courts and Judging, Due Process (Substantive), Equal Protection, Family, Federalism, Fifth Amendment, Fundamental Rights, Nondelegation Doctrine, Opinion Analysis, Race, Tenth Amendment | Permalink | Comments (0)
Wednesday, August 1, 2018
The Ninth Circuit struck another blow today against the administration's anti-sanctuary cities policy, ruling in San Francisco v. Trump that the President can't unilaterally withhold federal grants from sanctuary jurisdictions without Congress's say-so.
The ruling is just the latest in a line of similar rulings, and aligns broadly with the Seventh Circuit's ruling in the spring. This ruling is just a little bit different, however, in that it focuses principally on President Trump's original and sweeping Executive Order (and not AG Sessions's interpretive memo). The court rejects the government's attempt to narrow the test of the EO by focusing instead on AG Sessions's memo as the actual government policy. It said that the memo doesn't align with the EO (and is therefore itself ultra vires), and that in any event it's only a post-hoc justification to get the EO to pass muster in the courts.
While the ruling is an outright win for San Francisco and Santa Clara County, the court threw a bone to the administration by vacating the district court's nationwide injunction and remanding the case for reconsideration and further findings on that issue.
The facts--or at least their general outline--is all too familiar by now: In an effort to clamp down on sanctuary jurisdictions, the President ordered that sanctuary jurisdictions come into line with 8 U.S.C. Sec. 1373, which prohibits state and local jurisdictions from restricting their officers from communicating with federal immigration officials. (Other cases have also involved the "notice" and "access" conditions that AG Sessions purported to put on receipt of a certain federal grant in his memo. Those conditions required jurisdictions to provide notice to federal immigration enforcement officials of any detention, and access to state and local facilities for federal immigration enforcement. This ruling didn't deal with those, because it focused on the EO itself.)
The court simply held that under the separation of powers and Congress's Article I, Section 8, power of the purse, it's for Congress, not the Executive, to put conditions on federal spending. The court said that "because Congress has the exclusive power to spend and has not delegated authority to the Executive to condition new grants on compliance with Section 1373, the President's 'power is at its lowest ebb,'" under Justice Jackson's Youngstown framework. And at the lowest ebb, "[b]ecause the Executive Order directs Executive Branch administrative agencies to withhold funding that Congress has not tied to compliance with Section 1373, there is no reasonable argument that the President has not exceeded his authority." In sum:
Absent congressional authorization, the Administration may not redistribute or withhold properly appropriated funds in order to effectuate its own policy goals. Because Congress did not authorize withholding of funds, the Executive Order violates the constitutional principle of the Separation of Powers.
The court flatly rejected the administration's (pretty incredible) argument that its move to condition funds "is all bluster and no bite, representing a perfectly legitimate use of the presidential 'bully pulpit,' without any real meaning . . . .":
[E]ven if we ignore the statements made by and on behalf of the Administration outside the context of this litigation, the Administration's interpretation of the Executive Order strains credulity. And consideration of those statements suggests that the Administration's current litigation position is grounded not in the text of the Executive Order but in a desire to avoid legal consequences.
(Interestingly, the court said nothing about the constitutionality of Section 1373 itself. That provision is now questionable, in light of Murphy v. NCAA, as a possible "commandeering" of state governments in violation of the anti-commandeering principle. Judge Fernandez, in dissent, distinguished Murphy in a footnote by saying that the Court's articulated "principles behind the anticommnadeering rule" don't apply to Section 1373. But it's not clear how the plain ruling itself doesn't apply to Section 1373. More to come on this, I'm sure.)
The court then vacated the district court's nationwide injunction, because "the present record does not support a nationwide injunction." The court remanded "for a more searching inquiry into whether this case justifies the breadth of the injunction imposed."
(Along the way, the court also ruled that the plaintiffs had standing and that the case was ripe for judicial review.)
Judge Fernandez dissented, arguing that the case wasn't ripe and, in any event, that the EO was constitutional, because, by its plain terms, it only applies "to the fullest extent of the law."
Friday, July 6, 2018
Judge John A. Mendez (E.D. Cal.) yesterday granted part, but denied most, of the federal government's motion for a preliminary injunction against California's sanctuary-jurisdiction laws. The ruling is only preliminary--so goes only to the likelihood of success on the merits, and not the actual success on the merits--but it nevertheless signals the court's likely approach if and when it gets to the actual merits.
This is just the latest ruling where a state promoting a progressive immigration agenda draws on conservative-Court-created structural features of the constitution (here, federalism). In particular, Judge Mendez writes that Section 1373 (the federal prohibition on states prohibiting their officers from communicating with the feds about detained individuals in order to determine their immigration status) likely violates the Court-created anticommandeering principle in Printz and (just recently) Murphy.
The case, United States v. State of California, is the federal government's challenge to California's several sanctuary laws. Here they are, with the court's analysis, one at a time:
Assembly Bill 103's Direction for State AG Review of Detention Facilities. This provision directs the state attorney general to review and report on county, local, and private locked detention facilities used by the federal government to house detainees in civil immigration proceedings in the state. The court rejected the government's argument that this provision interfered with the federal government's exclusive authority in the area of immigration detention (and was thus preempted), because the provision amounted merely to funding an authority the state AG already had. "The Court finds no indication . . . that Congress intended for States to have no oversight over detention facilities operating within their borders. Indeed, the detention facility contracts [California] provided to the Court expressly contemplate compliance with state and local law."
Assembly Bill 405's Prohibition on Consent. This provision prohibits (on pain of fine) public and private employers from providing voluntary consent to an immigration enforcement agent to enter nonpublic areas of a job-site or to access an employer's records on its employees. The court said that the consent prohibition violated intergovernmental immunity, because "[t]hese fines inflict a burden on those employers who acquiesce in a federal investigation but not on those who do not."
Assembly Bill 405's Notice Requirement. This provision requires employers to provide notice to their employees "of any inspections of I-9 Employment Eligibility Verification forms or other employment records conducted by an immigration agency within 72 hours of receiving notice of the inspection." The court said that this prohibition was likely valid: Federal immigration law "primarily imposes obligations and penalties on employers, not employees. . . . [T]he Court finds no indication--express or implied--that Congress intended for employees to be kept in the dark."
Assembly Bill 405's Reverification Requirement. This limits an employer's ability to reverify an employee's employment eligibility when not required by law. The court said that it likely "stand[s] as an obstacle" to federal immigration law and is thus preempted.
Senate Bill 54's Prohibition on State Law Enforcement Providing Immigration Information to the Feds. This provision prohibits state law enforcement from providing certain information to federal immigration officials relating to a detained person, except as required by federal law. The court wrote that Section 1373 (which prohibits states from prohibiting their officials from sharing this kind of information) likely violates the anticommandeering principle under Murphy (the Court's most recent foray into the principle, in the New Jersey sports-gambling case), because that case held that anticommandeering applies equally when Congress tells states what they may not do. But ultimately the court dodged the anticommandeering question by giving Section 1373 a narrow reading and recognizing that SB 54 contained an exception for complying with federal law--and thus holding that the two are not in conflict. The court went on to say that SB 54 also does not create an obstacle to federal enforcement, because it merely means that state officials don't cooperate with federal enforcement (and not that they actively stand in the way of federal immigration enforcement).
Sunday, July 1, 2018
The Sixth Circuit ruled last week in McDaniel v. Upsher-Smith Labs, Inc., that the Federal Food, Drug, and Cosmetic Act preempted a plaintiff's state failure-to-warn claims against a generic drug manufacturer for failure to include a Medication Guide with the prescription drugs.
The case narrows the already wee-bit window left open for plaintiff claims against generic manufacturers by the Supreme Court in PLIVA v. Mensing. That case held that the FDCA preempted state tort law that required manufacturers to use a stronger label. As the McDaniel majority explained:
In Mensing, patients who had taken generic metoclopramide and developed tardive dyskinesia sued the generic manufacturers for failing to update the warning labels to adequately advise of the medication's risks. They claimed that state tort law obligated these manufacturers to use a stronger label. But FDA regulations require sameness between the warning labels of a brand-name drug and its generic counterpart. The generic manufacturers were in a bind. If they strengthened the label to satisfy state law, they'd run afoul of their federal duty of sameness; if they retained the label to satisfy federal law, they'd fall short of their state-law duty to provide adequate labeling. Finding it impossible for the generic manufacturers to comply with state and federal law, the Supreme Court held that state law must give way and the tort claims were preempted.
Mensing left a narrow opening for plaintiffs' state failure-to-warn claims: They have to be based on conduct that violates the FDCA, but can't be a critical element of the claim. Chief Judge Cole explained in partial concurrence, partial dissent:
Implied preemption leaves open a narrow gap for state failure-to-warn claims against generic drug manufacturers that resides between its two forms--impossibility and obstacle preemption. The claim must be premised on conduct that violates the FDCA to avoid impossibility preemption. This is so because the FDCA requires a generic drug to have the same warnings as its brand-name counterpart (under the federal duty of sameness), so that simultaneous compliance with any state duty to supply different warnings would be impossible. At the same time, to avoid obstacle preemption, the violation of the FDCA cannot be "a critical element" of the claim [because the FDCA authorizes only the federal government, not individual plaintiffs, to enforce the FDCA].
Circuit law recognizes that a plaintiff can thread this needle: in Fulgenzi v. PLIVA, the court held that a plaintiff's failure-to-warn claim survived preemption, because the claim "relie[d] upon the adequacy of the warnings and the causation of her injuries," and not the "[f]ailure to update from one adequate warning to another." "On the merits, whether PLIVA ha[d] violated its federal duties [was] irrelevant to the adequacy of its warnings."
But the court distinguished Fulgenzi here: "But here, as explained above, adequacy of the warnings is not the issue. Rather, it is Upsher-Smith's alleged failure to ensure the amiodarone Medication Guide's availability for distribution--the failure to comply with a federal regulation that only the Federal Government may enforce--that is the ballast steadying McDaniel's claim." The court pointed to repeated references in McDaniel's complaint that the defendant failed to meet FDCA standards.
Chief Judge Cole argued that Fulgenzi applied:
McDaniel's Tennessee failure-to-warn claims are no different. In her complaint, she alleges that Upsher-Smith violated the federal duty of sameness by failing to provide warnings in the form of a medication guide. But she cannot be faulted for doing so [in order to avoid impossibility preemption, described above]. . . .
McDaniel's claims are premised on a violation of an independent Tennessee duty to warn, not federal law. "The alleged breach arises from the same act"--namely, the failure to provide a medication guide. Indeed, it must arise from the same act to avoid impossibility preemption. "[B]ut the legal basis is different." McDaniel's claims depend on whether the warnings provided were inadequate and proximately caused her late husband's death. Because the fact of a federal-law violation is not a necessary element of those claims, they are not subject to obstacle preemption . . . .
Thursday, June 28, 2018
The Seventh Circuit earlier this week narrowed the nationwide injunction against AG Sessions's crackdown on Chicago's sanctuary-cities practices so that it now only applies "as to the imposition of the conditions on the City of Chicago," and not the "geographic areas in the United States beyond the City of Chicago pending the disposition of the case by the en banc court."
The ruling means that the injunction now applies only to Chicago, and not nationwide.
The ruling gave no reasons for restricting the injunction. Recall that on Tuesday, in the travel ban case, the Court declined to address the issue of whether a lower court can issue a nationwide injunction. (It didn't have to rule on this, because it upheld the travel ban.)
Thursday, June 21, 2018
The Supreme Court today, in South Dakota v. Wayfair, upheld South Dakota's sales tax on out-of-state sellers against a Commerce Clause (or, more precisely, Dormant Commerce Clause) challenge. The ruling opens the door for states to impose sales taxes on internet sellers who lack a physical presence in the state. The ruling also overturned a pair of cases requiring a seller's "physical presence" in a state before the state could tax it.
Justice Kennedy wrote for the Court, joined by Justices Thomas, Ginsburg, Alito, and Gorsuch.
The Court upheld South Dakota's sales tax on out-of-state sellers "as if the seller had a physical presence in the State." That qualifier was significant, because the Supreme Court had previously held in National Bellas Hess, Inc. v. Department of Revenue of Illinois and Quill Corp. v. North Dakota that a state can only impose a sales tax on a business that has a physical presence within the state. South Dakota's tax thus put the brick-and-mortar requirement in Bellas Hess and Quill squarely before the Court.
The Court struck it, and overturned those cases. The Court said that "Quill is flawed on its own terms." First, it wasn't a necessary interpretation of precedent; next, it creates market distortions by creating an incentive to avoid physical presence; and finally, it "imposes the sort of arbitrary, formalistic distinction that the Court's modern Commerce Clause precedents disavow . . . ." Moreover, internet commerce has changed things since the Court created the brick-and-mortar rule. And finally, the rule "is also an extraordinary imposition by the Judiciary on States' authority to collect taxes and perform critical public functions."
Justice Thomas concurred, arguing that "this Court's entire negative Commerce Clause jurisprudence" "can no longer be rationally justified."
Justice Gorsuch also concurred, similarly arguing "[w]hether and how much of [the Court's Dormant Commerce Clause jurisprudence] can be squared with the text of the Commerce Clause . . . are questions for another day."
Chief Justice Roberts dissented, joined by Justices Breyer, Sotomayor, and Kagan. He argued that this is a matter for Congress, given the stakes for the economy:
I agree that Bellas Hess was wrongly decided . . . . The Court argues in favor of overturning that decision because the "Internet's prevalence and power have changed the dynamics of the national economy." But that is the very reason I oppose discarding the physical-presence rule. E-commerce has grown into a significant and vibrant part of our national economy against the backdrop of established rules, including the physical presence rule. Any alteration to those rules with the potential to disrupt the development of such a critical segment of the economy should be undertaken by Congress.
Tuesday, June 19, 2018
Judge Julie A. Robinson (D. Kansas) ruled yesterday that Kansas's requirement that motor-voter applicants provide proof of citizenship violated the National Voter Registration Act and the constitutional right to vote. In addition, Judge Robinson took Kansas Secretary of State Kris Kobach to task for his conduct over the course of the case, and imposed a remarkable sanction against him.
The ruling should end Kansas's documentary-proof-of-citizenship law, but we'll likely see an appeal (even if almost certainly futile, given the record).
The case tests Kansas's law that motor-voters show proof of citizenship when registering to vote against the NVRA's requirement that states automatically register voters when they apply for a driver's license--and its prohibition on states requiring more information than "necessary to . . . enable State election officials to assess the eligibility of that applicant and to administer voter registration and other parts of the election process." Judge Robinson previously issued a temporary injunction against Kansas's law, upheld by the Tenth Circuit.
As to NVRA preemption, the court applied the Tenth Circuit's rule on NVRA preemption. That rule says that the attestation requirement in Section 5 presumptively satisfies the minimum-information requirement for motor-voter registration. In order to rebut the presumption, the defendant has to show that "they cannot enforce their voter qualifications because a substantial number of noncitizens have successfully registered using the Federal Form" in order to adopt more strenuous information requirements.
The court said that Kobach simply didn't prove that a substantial number of noncitizens have successfully registered using the Federal Form, and that there wasn't another, less burdensome way to enforce the state's citizenship requirement:
Defendant was given the opportunity to retain experts and marshal evidence to meet his burden of demonstrating that "a substantial number of noncitizens have successfully registered to vote under the attestation requirement" in order to rebut the presumption that attestation meets the minimum-information requirement of Section 5 and that nothing less than DPOC is sufficient to meet his eligibility-assessment and registration duties under the NVRA. As described below, the Court finds that on the trial record Defendant has failed to make a sufficient showing on the first inquiry. Moreover, even if Defendant could demonstrate a substantial number of noncitizen registrations, he has not demonstrated that nothing less than the DPOC law is sufficient to enforce the State's citizenship eligibility requirement.
As to the right to vote, Judge Robinson weighed DPOC's benefits and burdens, distinguished the balance in Crawford v. Marion County, and ruled that DPOC violated the right to vote. "Instead, the DPOC law disproportionately impacts duly qualified registration applicants, while only nominally preventing noncitizen voter registration."
Finally, Judge Robinson found that Kobach engaged in a repeated "pattern and practice . . . of flaunting disclosure and discovery rules that are designed to prevent prejudice and surprise at trial." "[G]iven the repeated instances involved, and the fact that Defendant resisted the Court's rulings by continuing to try to introduce such evidence after exclusion, the Court finds that further sanctions are appropriate . . . ." The court ordered Kobach to attend six additional CLE hours (over and above the state's regular requirements), pertaining to federal or Kansas civil rules of procedure or evidence.
Saturday, June 16, 2018
The Seventh Circuit this week denied the Justice Department's request to stay the nationwide injunction against the Department in Chicago's sanctuary cities case. The order says that the Seventh Circuit will wait until the Supreme Court rules in Trump v. Hawaii, the travel-ban case, before ruling on the issue.
Recall that a three-judge panel of the Seventh Circuit upheld a nationwide injunction issued by the district court against the Department enforcing two conditions imposed by the Attorney General on the DOJ-JAG/Byrne Grant program. DOJ filed a motion to stay the nationwide injunction pending appeal, and the full Seventh Circuit agreed to review the issue.
This latest round of jockeying came when DOJ sent a letter this week to the Seventh Circuit saying that if the Seventh Circuit didn't rule on its motion to stay the nationwide injunction by COB on June 18, DOJ would take it up with the Supreme Court. The Seventh Circuit interpreted the letter as a motion for an immediate ruling on DOJ's motion for a stay, and rejected it. The court said that it expected that the Supreme Court would have something to say about this in the travel-ban case, and it would await word from the high Court before ruling here.
The ruling makes it likely (or certain?) that DOJ will try to take this (the nationwide injunction) to the Supreme Court as early as Monday.
Thursday, June 14, 2018
In its opinion in Minnesota Voters Alliance v. Mansky, the Court held that a provision of a Minnesota law regulating voters' political attire violates the First Amendment. Recall from our preview that Minn. Stat. §211B.11, entitled "Soliciting near polling places," includes among its petty misdemeanor violations a prohibition of political attire: "A political badge, political button, or other political insignia may not be worn at or about the polling place on primary or election day."
The Court's majority opinion, by Chief Justice Roberts, finds that the "polling place" on election day constitutes a nonpublic forum under the First Amendment; it is "government- controlled property set aside for the sole purpose of voting" and is a "special enclave, subject to greater restriction." The question as phrased by the Court was therefore whether "Minnesota’s ban on political apparel is 'reasonable in light of the purpose served by the forum': voting." As in the oral argument, the Court considered the relevance of Burson v. Freeman (1992), in which the Court upheld a Tennessee statute which prohibited the solicitation of votes and the display or distribution of campaign materials within 100 feet of the entrance to a polling place.
Analogizing to Burson, the Court upheld Minnesota's objective in prohibiting voters from wearing particular kinds of expressive apparel or accessories while inside the polling place.
[W]e see no basis for rejecting Minnesota’s determination that some forms of advocacy should be excluded from the polling place, to set it aside as “an island of calm in which voters can peacefully contemplate their choices.” Brief for Respondents 43. Casting a vote is a weighty civic act, akin to a jury’s return of a verdict, or a representative’s vote on a piece of legislation. It is a time for choosing, not campaigning. The State may reasonably decide that the interior of the polling place should reflect that distinction.
However, the Court found that the Minnesota statute failed to satisfy the reasonable standard in the means chosen to achieve its goal: "the unmoored use of the term 'political' in the Minnesota law, combined with haphazard interpretations the State has provided in official guidance and representations to this Court, cause Minnesota’s restriction to fail even this forgiving test." The Court found "political" far too broad (citing dictionary definitions) and likewise found that "issue oriented material" was also too broad (" A rule whose fair enforcement requires an election judge to maintain a mental index of the platforms and positions of every candidate and party on the ballot is not reason- able. Candidates for statewide and federal office and major political parties can be expected to take positions on a wide array of subjects of local and national import.")
However, the Court gestured toward acceptable means chosen:
That is not to say that Minnesota has set upon an impossible task. Other States have laws proscribing displays (including apparel) in more lucid terms. See, e.g., Cal. Elec. Code Ann. §319.5 (West Cum. Supp. 2018) (prohibiting “the visible display . . . of information that advocates for or against any candidate or measure,” including the “display of a candidate’s name, likeness, or logo,” the “display of a ballot measure’s number, title, subject, or logo,” and “[b]uttons, hats,” or “shirts” containing such information); Tex. Elec. Code Ann. §61.010(a) (West 2010) (prohibiting the wearing of “a badge, insignia, emblem, or other similar communicative device relating to a candidate, measure, or political party appearing on the ballot, or to the conduct of the election”). We do not suggest that such provisions set the outer limit of what a State may proscribe, and do not pass on the constitutionality of laws that are not before us. But we do hold that if a State wishes to set its polling places apart as areas free of partisan discord, it must employ a more discernible approach.
The appendix lists thirty-four states prohibiting accessories or apparel in the polling place.
Dissenting, Justice Sotomayor, joined by Justice Breyer, would have certified the issue of the interpretation of the statute to the Minnesota Supreme Court. The Court, in footnote 7, explained its decision not to certify, including that the request came "late in the day," but Sotomayor argued that "certification is not an argument subject to forfeiture by the parties" and is instead a matter of comity. Moreover, she contended that having an interpretation of the statute, including the term "political" (which she noted the Court had "little difficulty discerning its meaning in the context of [other] statutes subject to First Amendment challenges, citing cases), would "obviate the hypothetical line-drawing problems that form the basis of the Court’s decision today."
Thus, the import of Minnesota Voters Alliance v. Mansky is that states can prohibit certain expressive apparel and accessories at the polling place on election day, but the courts must find the statutory definitions sufficiently defined as to be "reasonable."
Thursday, June 7, 2018
Senior Judge Michael M. Baylson (E.D. Pa.) ruled in favor of Philadelphia yesterday in its sanctuary-cities case against the Trump Administration. The court held that the three immigration-enforcement conditions that Attorney General Jeff Sessions imposed on sanctuary cities as conditions of receipt of federal DOJ JAG grants violated federal law and the Constitution.
The ruling goes farther than the Seventh Circuit case also striking the conditions, in that Judge Baylson also ruled Section 1373 unconstitutional. Notably, that portion of the court's decision was based on the Supreme Court's recent ruling in Murphy v. NCAA.
Philadelphia challenged the three conditions that AG Sessions unilaterally imposed on sanctuary cities in exchange for federal JAG grant money--(1) the requirement that local jurisdictions provide ICE officials access to local prisons, (2) the requirement that local jurisdictions notify ICE when they release aliens from local prisons, and (3) the requirement that local jurisdictions certify compliance with 8 U.S.C. Sec. 1373. (1373 says that a local government can't restrict its officers from communicating with ICE about the citizenship or immigration status of a person.)
The court held that the first two conditions amounted to ultra vires conduct not authorized by Congress and violated the separation of powers and the Spending Clause (similar to the Seventh Circuit ruling). The court also held that these conditions were arbitrary and capricious under the Administration Procedure Act (because the government failed to support the putative public-safety reasons for the conditions).
The court went on to strike Section 1373 under the Court's approach in Murphy:
8 U.S.C. Secs. 1373(a) and 1373(b) by their plain terms prevent "Federal, State, or local government entit[ies] or official[s] from" engaging in certain activities. These provisions closely parallel the anti-authorization condition in [the Professional and Amateur Sports Protection Act] which was at issue in Murphy. Specifically, the PASPA provision violated the Tenth Amendment because it "unequivocally dictates what a state legislature may and may not do." Sections 1373(a) and (b) do the same, by prohibiting certain conduct of government entities or officials.
The court said that AG Sessions couldn't condition the receipt of federal funds on compliance with an unconstitutional provision like Section 1373, so the third condition, like the first and second, was also invalid.
Monday, May 14, 2018
The Supreme Court ruled today that federal law prohibiting states from authorizing sports gambling violates the anticommandeering principle. The ruling in Murphy v. NCAA strikes the prohibition the federal Professional and Amateur Sports Protection Act (PASPA) and opens the door to state-authorized sports gambling across the country.
While the ruling is potentially quite significant with regard to sports gambling, it does not restrict Congress from regulating or prohibiting sports gambling directly. Congress could enact a new law doing just that.
As to the constitutional law: The ruling says that the anticommandeering principle applies both when Congress requires states to act (which we already knew), and when Congress prohibits states from acting (which we didn't yet know, at least not for sure). That could have implications in the sanctuary cities litigation, which involves, among other things, the federal prohibition against state and local governments from restricting their officers in cooperating with federal immigration agents.
The case arose when New Jersey challenged the prohibition on state-authorized sports gambling in the PASPA under the anticommandeering principle. New Jersey sought to revoke its law prohibiting sports gambling, but the NCAA sued, arguing that New Jersey's proposed revocation violated the PASPA's provision that forbids a state "to sponsor, operate, advertise, promote, license, or authorize by law or compact . . . a lottery, sweepstakes, or other betting, gambling, or wagering scheme" based on a competitive sporting events and forbids "a person to sponsor, operate, advertise, or promote" those gaming schemes if done "pursuant to the law or compact of a governmental entity." (New Jersey did this once before, but was stopped in the lower courts. The Supreme Court denied cert. in that earlier challenge.) (Importantly, PASPA does not make sports betting a federal crime. Instead, it authorizes the Attorney General and professional and amateur sports organizations to sue to halt violations.) New Jersey countered that PASPA violated the anticommandeering principle insofar as it prohibited the state from repealing its ban on sports betting. The lower courts ruled against the state, but the Supreme Court reversed. Justice Alito wrote for the Court.
The Court first held that New Jersey's repeal fell within PASPA's ban on "authorizing" sports betting: "When a State completely or partially repeals old laws banning sports gambling, it 'authorize[s]' that activity."
The Court then ruled that PASPA's prohibition violated the anticommandeering principle. The Court said that it didn't make a difference whether Congress directed a state to act, or prohibited a state from acting; either way, "state legislatures are put under the direct control of Congress."
The PASPA provision at issue here--prohibiting state authorization of sports gambling--violates the anticommandeering rule. That provision unequivocally dictates what a state legislature may and may not do. And this is true under either our interpretation or that advocated by the respondents and the United States. In either event, state legislatures are put under the direct control of Congress. It is as if federal officers were installed in state legislative chambers and were armed with the authority to stop legislators from voting on any offending proposals. A more direct affront to state sovereignty is not easy to imagine.
It was a matter of happenstance that the laws challenged in New York and Printz commanded "affirmative" action as opposed to imposing a prohibition. The basic principle--that Congress cannot issue direct orders to state legislatures--applies in either event.
The Court said that PASPA's prohibition on state "licensing" of sports betting similarly violates the anticommandeering principle.
Finally, the Court said that PASPA's prohibition on states from "operat[ing]," "sponsor[ing]," or "promot[ing]" sports gambling schemes, its provisions that prohibit a private actor from "sponsor[ing], operat[ing], advertis[ing], or promot[ing]" sports gambling schemes "pursuant to" state law, and its provisions prohibiting the "advertis[ing]" of sports gambling all cannot be severed and therefore go down, as well.
Justice Thomas concurred in full, but wrote separately "to express [his] growing discomfort with . . . modern severability precedents." In particular, Justice Thomas argued that the Court's severability "precedents appear to be in tension with traditional limits on judicial authority."
Justice Breyer concurred, except to the severability holding on the provision regulating private actors.
Justice Ginsburg, joined by Justice Sotomayor and in part by Justice Breyer, dissented. Justice Ginsburg argued that (assuming arguendo that the state-authorization provision amounted to commandeering) the Court improperly failed to sever the prohibition on state and private-party operations, because they can stand alone.
Thursday, May 3, 2018
Ninth Circuit Says California Medical Waste Management Act Violates Dormant Commerce Clause (but Officials get Qualified Immunity)
The Ninth Circuit ruled in Daniels Sharpsmart, Inc. v. Smith that California's Medical Waste Management Act likely violates the Dormant Commerce Clause, but that officials who imposed a fine under the Act enjoy qualified immunity against a money-damages suit.
The case arose when Daniels, a sharps-container developer, shipped its medical waste out of California for disposal. Daniels originally shipped to another state and incinerated the waste, but later switched to states that permitted waste disposal using other methods.
This didn't sit well with California regulators, who sought to enforce the state Act's requirements that all medical waste be treated by incineration and that "[m]edical waste transported out of state shall be consigned to a permitted medical waste treatment facility in the receiving state." Regulators told Daniels that his waste had to be incinerated, even if the law of another state permitted an alternative method, and that Daniels would be penalized it if didn't incinerate all of its biohazardous waste that originated in California. Daniels continued to ship waste out of California and dispose of it in other ways, and the California regulators imposed a hefty penalty. Daniels sued.
The Ninth Circuit ruled that the Act likely violated the Dormant Commerce Clause. The court applied the "direct regulation emanation" of the Dormant Commerce Clause, which forbids a state from regulating transactions that take place across state lines or entirely outside of the state's borders. Referencing circuit precedent, the court wrote:
Rather, California has attempted to regulate waste treatment everywhere in the country, just as it tried to regulate art sales and Nevada tried to regulate rules violations procedures everywhere in the country. Of course, that could also have the effect of requiring Daniels to run afoul of other states' regulation of medical waste disposal within their jurisdictions, if California law directed something different from their requirements.
Therefore, Daniels will likely succeed on its claim that the Department officials' application of the [Act] constitutes a "per se violation of the Commerce Clause." Were it otherwise, California could purport to regulate the use or disposal of any item--product or refuse--everywhere in the country if it had its origin in California.
But the court went on to hold that state officials enjoyed qualified immunity against Daniels's suit for monetary damages. That's because "a reasonable official, who is not knowledgeable about the arcane considerations lurking within the dormant Commerce Clause doctrine, could reasonably, if erroneously, believe that the Department could control what was done with California waste in another state."
The court reversed the lower court on this point, noting that the lower court wrongly applied law "at a high level of generality" when it concluded that "[t]he extraterritoriality doctrine has been clearly established for decades."
Thursday, April 26, 2018