Constitutional Law Prof Blog

(Second) Federal District Judge Enjoins Transgender Military Ban

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

In his opinion  in Stone v. Trump, United States District Judge Marvin Garvis of the District of Maryland isued a preliminary injunction against the United States military's ban on transgender troops and resources for "sex-reassignment" medical procedures. 

Recall that after several tweets this past July (which Judge Garvis embeds in the opinion), President Trump issued a Memorandum for the Secretary of Defense and Secretary of Homeland Security through the Office of the Press Secretary directing the halt of accession of transgender individuals into the military and the halt of all resources "to fund sex-reassignment surgical procedures for military personnel, except to the extent necessary to protect the health of an individual who has already begun a course of treatment to reassign his or her sex." 

Recall also that last month in Doe v. Trump, United States District Judge for the District of Columbia Colleen Kollar-Kotelly partially enjoined the president's actions denying the motion for preliminary injunction regarding the Sex Reassignment Directive based on a lack of standing and granting the motion for preliminary injunction regarding the Accession and Retention Directives.

Judge Garvis has ordered a complete preliminary injunction.  Unlike Judge Kollar-Kotelly in Doe, Judge Garvis found that several plaintiffs in Stone had standing regarding the Sex Reassignment Directive which takes effect March 23.  Specifically, Judge Garvis found that it highly unlikely that plaintiffs Stone and Cole would be able to complete their medical plan before that date and that it was "at the very least plausible" that any policy exceptions would be applied to their scheduled post-March-23rd surgeries.

As for the merits, and the likelihood of success, Judge Garvis agreed with Doe. Judge Garvis discussed the Fifth Amendment protection of equal protection as applied to the military and found reason not to apply military deference, specifically mentioning the presidential tweets:

There is no doubt that the Directives in the President’s Memorandum set apart transgender service members to be treated differently from all other military service members. Defendants argue that deference is owed to military personnel decisions and to the military’s policymaking process. The Court does not disagree. However, the Court takes note of the Amici of retired military officers and former national security officials, who state “this is not a case where deference is warranted, in light of the absence of any considered military policymaking process, and the sharp departure from decades of precedent on the approach of the U.S. military to major personnel policy changes.”  President Trump’s tweets did not emerge from a policy review, nor did the Presidential Memorandum identify any policymaking process or evidence demonstrating that the revocation of transgender rights was necessary for any legitimate national interest. Based on the circumstances surrounding the President’s announcement and the departure from normal procedure, the Court agrees with the D.C. Court that there is sufficient support for Plaintiffs’ claims that “the decision to exclude transgender individuals was not driven by genuine concerns regarding military efficacy.”

Similarly and succinctly, Judge Garvis found an equal protection violation:

The Court finds persuasive the D.C. Court’s reasons for applying intermediate scrutiny: transgender individuals appear to satisfy the criteria of at least a quasi-suspect classification, and the Directives are a form of discrimination on the basis of gender.  The Court also adopts the D.C. Court’s reasoning in the application of intermediate scrutiny to the Directives and finds that the Plaintiffs herein are likely to succeed on their Equal Protection claim.

[citations omitted]. 

However, Judge Garvis also based the equal protection violation on a finding of failure to satisfy "rational basis" (or perhaps rational basis "with bite") review:

Moreover, the Court finds that, based on the exhibits and declarations currently on the record, the Directives are unlikely to survive a rational review. The lack of any justification for the abrupt policy change, combined with the discriminatory impact to a group of our military service members who have served our country capably and honorably, cannot possibly constitute a legitimate governmental interest. See U. S. Dep’t of Agric. v. Moreno, 413 U.S. 528, 534 (1973).

Thus, the Trump Administration now has two district judge opinions to appeal should it desire to pursue its new policies limiting transgender service members.

 

 

District Judge Partially Enjoins President's Transgender Military Ban

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

 In an Order and Opinion in Doe v. Trump, United States District Judge for the District of Columbia Colleen Kollar-Kotelly partially enjoined the president's actions to limits the service of transgender persons in the United States military. Judge Kollar-Kelly denied the motion for preliminary injunction regarding the Sex Reassignment Directive, but granted the motion for preliminary injunction regarding the Accession and Retention Directives.

Recall that this lawsuit, filed by lawyers for the National Center for Lesbian Rights (NCLR) and GLBTQ Legal Advocates and Defenders (GLAD) is one of several complaints challenging the president's military action, and included claims for a violation of equal protection, due process, and a nonconstitutional argument of equitable estoppel.

Judge Kollar-Kotelly's 76 page opinion, which begins with a recitation of the President's "statement via Twitter" on July 26, 2017, announcing that “the United States Government will not accept or allow transgender individuals to serve in any capacity in the U.S. Military.” This was followed almost a month later by the President's Memorandum for the Secretary of Defense and Secretary of Homeland Security through the Office of the Press Secretary directing the halt of accession of transgender individuals into the military and the halt of all resources "to fund sex-reassignment surgical procedures for military personnel, except to the extent necessary to protect the health of an individual who has already begun a course of treatment to reassign his or her sex." The President's Twitter statement and the subsequent Presidential memorandum are the centerpiece of the Government's argument that the plaintiffs lack standing and that their claims are not ripe under Article III.

Judge Kollar-Kotelly wrote:

Defendants have moved to dismiss this case, principally on the basis that the Court lacks jurisdiction. Although highly technical, these jurisdictional arguments reduce to a few simple points: the Presidential Memorandum has not effected a definitive change in military policy; rather, that policy is still subject to review; until that review is complete, transgender service members are protected; and any prospective injuries are too speculative to require judicial intervention.

These arguments, while perhaps compelling in the abstract, wither away under scrutiny.

Judge Kollar-Kotelly's opinion then spends the majority of the opinion discussing the standing and ripeness issues. As to the Surgery challenge, the opinion concludes that "none of the Plaintiffs have demonstrated an injury in fact with respect to the Sex Reassignment Surgery Directive," because none of the "Plaintiffs have demonstrated that they are substantially likely to be impacted by the Sex Reassignment Surgery Directive"  In fact, the plaintiffs' medical procedures would be performed.  However, there was standing on the Accession and Retention Directives because although an Interim Guidance possibly protects some transgender service members and allows for waivers,

The President controls the United States military. The directives of the Presidential Memorandum, to the extent they are definitive, are the operative policy toward military service by transgender service members.

Moreover, "the injury in fact element of standing in an equal protection case is the denial of equal treatment resulting from the imposition of the barrier.”

Compared to the extensive analysis of the Article III issues, Judge Kollar-Ketelly's analysis of the equal protection claim based on the Fifth Amendment is much more succinct. The opinion first determines the level of scrutiny, deciding on intermediate scrutiny for two reasons.

First, "on the current record, transgender individuals—who are alone targeted for exclusion by the Accession and Retention Directives—appear to satisfy the criteria of at least a quasi-suspect classification," considering  whether they have "experienced a ‘history of purposeful unequal treatment’ or been subjected to unique disabilities on the basis of stereotyped characteristics not truly indicative of their abilities," and whether they have been as a group “relegated to such a position of political powerlessness as to command extraordinary protection from the majoritarian political process," and whether the group “exhibit[s] obvious, immutable, or distinguishing characteristics that define them as a discrete group.” Judge Kollar-Ketelly found that transgendered people satisfied these criteria, noting that although there was no binding precedent on this issue, other courts had reached similar conclusions and citing Evancho v. Pine-Richland Sch. Dist.

Second, Judge Kollar-Ketelly was "also persuaded that the Accession and Retention Directives are a form of discrimination on the basis of gender, which is itself subject to intermediate scrutiny. It is well-established that gender-based discrimination includes discrimination based on non- conformity with gender stereotypes."

In the application of intermediate scrutiny, Judge Kollar-Ketelly recited the rule of United States v. Virginia (VMI) (1996), and held that the Accession and Retention Directives relied on overbroad stereotypes and were not substantially related to the Government's stated interests.  The opinion then considered the question of deference in the military context:

Nonetheless, given the deference owed to military personnel decisions, the Court has not based its conclusion solely on the speculative and overbroad nature of the President’s reasons. A second point is also crucial. As far as the Court is aware at this preliminary stage, all of the reasons proffered by the President for excluding transgender individuals from the military in this case were not merely unsupported, but were actually contradicted by the studies, conclusions and judgment of the military itself. As described above, the effect of transgender individuals serving in the military had been studied by the military immediately prior to the issuance of the Presidential Memorandum. In connection with the working group chaired by the Under Secretary of Defense for Personnel and Readiness, the RAND National Defense Research Institute conducted a study and issued a report largely debunking any potential concerns about unit cohesion, military readiness, deployability or health care costs related to transgender military service. The Department of Defense Working Group, made up of senior uniformed officers and senior civilian officers from each military department, unanimously concluded that there were no barriers that should prevent transgender individuals from serving in the military, rejecting the very concerns supposedly underlying the Accession and Retention Directives. In fact, the Working Group concluded that prohibiting transgender service members would undermine military effectiveness and readiness. Next, the Army, Air Force and Navy each concluded that transgender individuals should be allowed to serve. Finally, the Secretary of Defense concluded that the needs of the military were best served by allowing transgender individuals to openly serve. In short, the military concerns purportedly underlying the President’s decision had been studied and rejected by the military itself. This highly unusual situation is further evidence that the reasons offered for the Accession and Retention Directives were not substantially related to the military interests the Presidential Memorandum cited.

The opinion also considered "the circumstances surrounding the announcement of the President’s policy":

the President abruptly announced, via Twitter—without any of the formality or deliberative processes that generally accompany the development and announcement of major policy changes that will gravely affect the lives of many Americans—that all transgender individuals would be precluded from participating in the military in any capacity. These circumstances provide additional support for Plaintiffs’ claim that the decision to exclude transgender individuals was not driven by genuine concerns regarding military efficacy.

Finding a likelihood of success on the merits of the equal protection claim, the opinion quickly dispatched the other considerations used in evaluating the issuance of a preliminary injunction, finding them met.

Expect the government to appeal as well as opinions in the other pending cases.

 

States Challenge DACA Rescission in New York v. Trump

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

 In a Complaint filed today in the Eastern District of New York in New York v. Trump, fifteen states and the District of Columbia have challenged the rescission of DACA, the Deferred Action for Childhood Arrivals program, covering 800,000 people in the United States who are not citizens but who have been residents since childhood.  The rescission was promised by President Trump, announced by Attorney General Jefferson Sessions, and is now in a Memorandum from the Department of Homeland Security, although some of the details of the rescission remain murky.  The complaint describes the rescission as "animus-driven."

The first two causes of action of the five total causes of action in the 58 page Complaint allege constitutional infirmities. 

The first cause of action is based on the Equal Protection component of the Due Process Clause of the Fifth Amendment, and alleges that the rescission targets individuals based on their national origin and is based, at least in part, by the desire to harm a particular group. Paragraphs 239-252 detail the statements by Trump, both as a candidate and as President, expressing anti-Mexican sentiments.  Part of these allegations include the controversial pardon of former Maricopa County, Arizona Sheriff Joe Arpaio. As for the timing of the rescission, the complaint also contains allegations regarding Texas, alleging that a "demand that President Trump eliminate DACA is part of a history of intentional discrimination against Latinos/Hispanics by the State of Texas" (¶256) and then detailing federal court findings that Texas has been found liable for "engaging in unlawful discrimination based on race and/or national origin."  Among the cases cited is the recent Perez v. Abbott concerning redistricting.

The second cause of action sounds in Due Process, arguing a breach of "fundamental fairness" relating to information use.  Specifically, ¶278 avers:

Given the federal government’s representations about the allowable uses of information provided by DACA applicants, a refusal to prohibit the use of information contained in DACA applications and renewal requests for purposes of immigration enforcement, including identifying, apprehending, detaining, or deporting non-citizens, is fundamentally unfair.

Two other causes of action relate to the Administrative Procedure Act - - - arbitrary and capricious action and failure to follow notice and comment - - - while the final cause of action is based on the Regulatory Flexibility Act, requiring federal agencies to "analyze the impact of rules they promulgate on small entities and publish initial and final versions of those analyses for comment."

The extensive allegations in the complaint by individual states include statements regarding each state's harm if DACA were rescinded in an effort to establish each state's standing.  In addition to New York, the plaintiffs are Massachusetts, Washington, Connecticut, Delaware, District of Columbia, Hawaii, Illinois, Iowa, New Mexico, North Carolina, Oregon, Pennsylvania, Rhode Island, Vermont, and Virginia. Generally, the allegations pertaining to each states detail the effect on their state colleges and universities, state companies, and state economies.

The complaint is a serious challenge to the DACA rescission and in some ways is similar to the ongoing state challenges to the so-called Muslim travel ban, another highly controversial Trump administration action still in litigation.

[image via]

 UPDATE: Additional complaints discussed here.

SCOTUS holds Gender-Differential in Unwed Parents Citizenship for Child Violates Equal Protection

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

 In its opinion in Sessions v. Morales-Santana, the United States Supreme Court has held that the differential requirements regarding US presence for unwed fathers and unwed mothers to transmit citizenship to their child violated equal protection as included in the Fifth Amendment's protections.  Recall that the Second Circuit had held there was an equal protection violation and had subjected the  the statutory scheme to intermediate heightened scrutiny under United States v. Virginia (VMI) (1996), rejecting the government's argument that essentially all citizenship statutes should be subject to mere rational basis review.  The Supreme Court opinion in Morales-Santana, authored by Justice Ginsburg (who also wrote VMI), was joined by Chief Justice Roberts, Kennedy, Breyer, Sotomayor, and Kagan.  Justices Thomas and Alito briefly dissented.

But while the Court's opinion affirms the Second Circuit's constitutional conclusion, it nevertheless holds that Morales-Santana is not entitled to relief, reversing the Second Circuit on that point.

The Court first rehearses the complicated statutory scheme and facts. The Immigration and Nationality Act of 1952, codified at 8 U.S.C. § 1409(c), was the one in effect when Morales-Santana was born in 1962 outside the US to unwed parents.  His parents married each other in 1970 and he was admitted to the US as a lawful permanent resident in 1975.   In 2000, Morales-Santana was placed in removal proceedings after a conviction for various felonies and applied for withholding based on derivative citizenship from his father.  Derivative citizenship, which occurs at the moment of birth, is bestowed on a child born abroad to an unwed citizen mother and non‐citizen father has citizenship at birth so long as the mother was present in the United States or one of its outlying possessions for a continuous period of at least one year at some point prior to the child’s birth. By contrast, a child born abroad to an unwed citizen father and non‐citizen mother has citizenship at birth only if the father was present in the United States or one of its outlying possessions prior to the child’s birth for a period or periods totaling at least ten years, with at least five of those years occurring after the age of fourteen.  Morales-Santana's father, born in Puerto Rico in 1900, met the one year requirement but not the ten year requirement at the time of his son's birth.  Both parties agreed that had Morales‐Santana’s mother, rather than his father, been a citizen continuously present in Puerto Rico until 20 days prior to her nineteenth birthday, she would have satisfied the requirements to confer derivative citizenship on her child. It is this gender‐based difference in treatment that Morales‐Santana claims violated his father’s right to equal protection.

The Court finds that the Morales-Santana has standing to raise the differential as applied to his parents and that the difference between unwed mothers and unwed fathers is "of the same genre of classifications" as the one in landmark sex equality cases, thus "heightened scrutiny is in order."  The Court finds that there is no exceedingly persuasive justification and notes that the statutory scheme dates "from an era when the lawbooks of our Nation were rife with overbroad generalizations about the way men and women are."  The Court also concluded that previous immigration cases, such as Nguyen v. INS,  (2001) which upheld gender discrimination regarding establishment of paternity were not controlling.  The Court rejected the government's rationale of "risk-of-statelessness" for the children as being "an assumption without foundation."

Despite the Court's resounding conclusion that the provision violates equal protection, the Court declines to extend the shorter unwed mother residency period to the unwed father.  Instead, the "right of equal treatment" here should be a withdrawal of benefits from the favored class (women) rather than an extension of benefits to the disfavored class (men).  The Court states that any choice between the methods of achieving equal treatment "is governed by the legislature's intent, as revealed by the statute at hand."  Thus, although the general approach is extension of benefits, because the statutory general rule was the longer one, the exception for favorable treatment is the one that should be stricken.

Thus, this is one of those relatively rare equal protection cases in which the challenger wins the battle to have the provision declared unconstitutional, but loses the war because equal treatment becomes the harsher rule.

[image via]

Virginia District Judge Upholds Muslim Travel Ban 2.0

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

In his opinion in Sarsour v. Trump, United States District Judge for the Eastern District of Virginia Anthony Trenga denied the Plaintiffs' motion for Temporary Restraining Order or Preliminary Injunction.

At issue is the President's March 6, 2017 Executive Order "Protecting The Nation From Foreign Terrorist Entry Into The United States" (now numbered EO 13,780), which is colloquially known as the revised travel ban or "Muslim Ban 2.0." 

Recall that the original EO, 13769, issued January 27, 2017, also entitled "Protecting The Nation From Foreign Terrorist Entry Into The United States," was enjoined by the Ninth Circuit in Washington v. Trump,; our backgrounder on the issues is here.  The President withdrew the initial EO and the Ninth Circuit denied the sua sponte motion for en banc review, but in a somewhat unusual step there was a substantive dissenting opinion authored by Judge Jay Bybee.

Recall also that regarding the March 6, 2017 EO ("Muslim Travel Ban 2.0"), two other federal district judges issued injunctions before the EO became effective.  In Hawai'i v. Trump, United States District Judge Derrick Watson issued a TRO of sections 2 and 6 of the EO based on the likelihood of plaintiffs to prevail on their Establishment Clause challenge.  In International Refugee Assistance Project (IRAP) v. Trump, Maryland District Judge Theodore Chuang issued a preliminary injunction of section 2(e) of the EO based on the likelihood of plaintiffs to prevail on their statutory claim under the Immigration and Nationality Act and their constitutional claim under the Establishment Clause.Judge Trenga disagrees with both Hawai'i v. Trump and IRAP v. Trump, although the opinion does not engage in a substantial dialogue with these opinions. 

Linda Sarsour, plaintiff via

For example, on the statutory claim in Sarsour v. Trump, Judge Trenga concludes after reviewing "the text and structure of the INA as a whole, and specifically, the practical, operational relationships" of the provisions, that the nondiscrimination restrictions of §1152 do not "apply to the issuance or denial of non-immigrant visas or entry under §1182(f).  In a footnote, Judge Trenga acknowledges that the judge in IRAP v. Trump "attempted to reconcile these seemingly contradictory provisions," and simply adds, "There, the court concluded that Section 1152 bars the President from discriminating on the basis of nationality in the issuance of immigrant visas only." (footnote 12).  Judge Trenga characterized the Immigration and Nationality Act (INA) as a "legislative rabbit warren that is not easily navigated," but his ultimate conclusion seems to be based on a broad view of Executive authority. Judge Trenga writes that the he "also has substantial doubts that Section 1152 can be reasonably read to impose any restrictions on the President’s exercise of his authority under Sections 1182(f) or 1185(a)."

Similarly, on the Establishment Clause claim Judge Trenga accorded the Executive broad deference.  Unlike the judges in both Hawai'i v. Trump and IRAP v. Trump, Judge Trenga found that the facial neutrality of "EO-2" was determinative.  Judge Trenga held that past statements - - - or the EO-2 statements (described in a footnote as including the President's statement that EO-2 was a "watered-down version" of EO-1, and Presidential Advisor Stephen Miller's statements) - - - have not "effectively disqualified him from exercising his lawful presidential authority":

In other words, the substantive revisions reflected in EO-2 have reduced the probative value of the President’s statements to the point that it is no longer likely that Plaintiffs can succeed on their claim that the predominate purpose of EO-2 is to discriminate against Muslims based on their religion and that EO-2 is a pretext or a sham for that purpose. To proceed otherwise would thrust this Court into the realm of “‘look[ing] behind’ the president’s national security judgments . . . result[ing] in a trial de novo of the president’s national security determinations,” Aziz, 2017 WL 580855, at *8, and would require “a psychoanalysis of a drafter’s heart of hearts,” all within the context of extending Establishment Clause jurisprudence to national security judgments in an unprecedented way.

Likewise, on the Equal Protection claim, Judge Trenga concluded that although the EO would have a differential impact on Muslims, it was facially neutral.  The Judge relied on an earlier Fourth Circuit case, Rajah v. Mukasy (2008) and articulated the standard as requiring merely a rational national security basis for an immigration measure to survive an Equal Protection Clause challenge.  And again, Judge Trenga accorded the Executive wide discretion: "These are judgments committed to the political branches - - - not to the courts."

In sum, Judge Trenga's opinion aligns with the Ninth Circuit dissent from en banc review by Judge Bybee and is in opposition to the other district judges who have rendered opinions on the second EO which have enjoined its enforcement.  

Maryland Federal District Judge Issues Injunction Against Muslim Travel Ban 2.0

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

In International Refugee Assistance Project (IRAP) v. Trump, Maryland District Judge Theodore Chuang issued a nationwide injunction against the President's March 6, 2017 Executive Order "Protecting The Nation From Foreign Terrorist Entry Into The United States" (now numbered EO 13,780), which is colloquially known as the revised travel ban or "Muslim Ban 2.0."   The 43 page opinion concludes that the Plaintiffs have a likelihood of success on their claims that the EO violates the Immigration and Nationality Act and violates the Establishment Clause.  [Note: Judge Chuang construed the motion for TRO/PI as a motion for a preliminary injunction and issued an injunction.] It closely follows on the TRO issued in Hawai'i v. Trump. 

On the issue of standing, Judge Chuang first finds that several of the individual plaintiffs have standing to challenge the EO on statutory grounds, meeting both Article III standing and being within the zone of interests of the statute.  Likewise, several plaintiffs have standing to challenge on the EO on Establishment Clause grounds given their personal injury on having family members who are directly and adversely affected by the ban.

Judge Chuang's opinion devotes substantial attention to the Immigration and Nationality Act claim, which has been raised in most of the complaints challenging this EO and its predecessor, but has not been the basis for a judicial restraining order.  Here, Judge Chuang concludes that the general power given to the President by 8 U.S.C. §1182(f) to "suspend the entry of all aliens or any class of aliens" is not exempt from the provision of 8 U.S.C. §1152(a) which bars discrimination in the issuance of immigrant visas.  Importantly, the exceptions listed in the non-discrimination provision of §1152(a) do not include §1182(f): 

Because the enumerated exceptions illustrate that Congress “knows how to expand ‘the jurisdictional reach of a statute,793 the absence of any reference to § 1182(1) among these exceptions provides strong evidence that Congress did not intend for §1182(1) to be exempt from the anti-discrimination provision of §1152(a).

[citation omitted].  Thus, Judge Chuang held that the plaintiffs have a likelihood to succeed on their statutory claim.

On the Establishments Clause claim, Judge Chuang, like other judges, looked to McCreary County v. ACLU of Kentucky (2005), for an interpretation of the first prong of the Lemon test, Lemon v. Kurtzman (1971), requiring an government act to have a secular purpose in order to be constitutional. Noting that finding of purpose is a common task for the courts, Judge Chuang discussed the specific statements in the record "directly establishing that Trump intended to effectuate a partial Muslim ban by banning entry by citizens of specific predominantly Muslim countries deemed to be dangerous, as a means to avoid, for political reasons, an action explicitly directed at Muslims."  These statements included the by now familiar statements of candidate Trump and of former-Mayor Guiliani relating to the first EO.  Additionally, Judge Chuang found that the despite the changes in the second EO, "the history of public statements continues to provide a convincing case that the purpose of the Second Executive Order remains the realization of the long-envisioned Muslim ban," quoting statements by Senior Policy Advisor to the President Stephen Miller and White House Press Secretary Sean Spicer.

Judge Chuang rejected the Government's argument that such statements should not be considered because they were made outside the formal government decision-making process. Instead, "all of the public statements at issue here are fairly attributable to President Trump."

Moreover, Judge Huang also looked to the language of the second EO itself.  He rejected the Government's argument that the second EO's articulation of a national security purpose essentially saves the EO.  However, while there should ordinarily be deference to national security, Judge Chuang found that in this "highly unique case," the record provides "strong indications that the national security interest is not the primary purpose of the EO.

• First, the initial EO was adopted without interagency review: "The fact that the White House took the highly irregular step of first introducing the travel ban without receiving the input and judgment of the relevant national security agencies strongly suggests that the religious purpose was primary, and the national security purpose, even if legitimate, is a secondary post hoc rationale."
• Second, the national security rationale was offered only after courts issued injunctions against the first EO, similar to litigation in McCreary.
• Third, the EO is an "unprecedented response" to security risks without any triggering event.

Judge Chuang also rejected the Government's argument that deference is warranted.  This deference argument was made in a dissenting opinion by Judge Jay Bybee from the Ninth Circuit's denial of en banc review in Washington v. Trump.  For Judge Chuang, the deferential standard of Kleindienst v. Mandel (1972), is most "typically applied when a court is asked to review an executive officer's decision to deny a visa" as in Kerry v. Din (2015). The Mandel test does not apply to the promulgation of sweeping immigration policy. Instead, even when exercising their immigration powers, the political branches must choose constitutional permissible means of implementing that power.  It is the courts' duty to determine those constitutional boundaries.

Thus, Judge Chuang issued a nationwide injunction against §2(c) of the Executive Order, independent of the injunction earlier that same day of §2, as well as §6, in Hawaii v. Trump.

[image: Photo by Bruce Emmerling of protest of first EO outside courthouse in Baltimore via; note that Judge Chuang does not sit in Baltimore].

 

President Issues Revised "Travel Ban"

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

The President's revised Executive Order (March 6, 2017), entitled "Protecting The Nation From Foreign Terrorist Entry Into The United States," has substantial changes from the previous EO, 13769, issued January 27, 2017, also entitled "Protecting The Nation From Foreign Terrorist Entry Into The United States," and now enjoined by the Ninth Circuit in Washington v. Trump, as well as subject to an injunction in Virginia in Aziz v. Trump (note that the state of Virginia intervened). Our backgrounder on the issues is here.

This new EO, signed without the fanfare of the previous one, acknowledges that the previous EO "has been delayed by litigation" and does seek to remedy some of the problems with the EO.  For example, the scope is much narrower and the suspension of entry excludes "any lawful permanent resident" as well as some other categories. This will make the applicability of constitutional protections less clear.  While the Constitution protects non-citizens, it does not have global applicability.

The new EO avers that the previous EO was not a "Muslim Ban":

Executive Order 13769 did not provide a basis for discriminating for or against members of any particular religion.  While that order allowed for prioritization of refugee claims from members of persecuted religious minority groups, that priority applied to refugees from every nation, including those in which Islam is a minority religion, and it applied to minority sects within a religion.  That order was not motivated by animus toward any religion, but was instead intended to protect the ability of religious minorities -- whoever they are and wherever they reside -- to avail themselves of the USRAP [US Refugee Admissions Program] in light of their particular challenges and circumstances.

Nevertheless, this new EO does not mention otherwise religion. Of course, omitting references to "religion" or stating that an act is not motivated by animus does not end the inquiry.  Instead, there will most certainly be arguments that courts can consider the new EO as religiously-motivated under either First Amendment or Equal Protection Clause doctrine.

The new EO also changes the seven nations to six - - - omitting Iraq as a "special case."  This could also give rise to a national origin classification - - - is Iraq, with its "active combat zones" so different from Libya and Yemen which are described similarly?  The omission of Iraq is also problematical because the new EO recites as part of its justification this specific incident: "For example, in January 2013, two Iraqi nationals admitted to the United States as refugees in 2009 were sentenced to 40 years and to life in prison, respectively, for multiple terrorism-related offenses." 

That relatively brief paragraph, §1(h), ends by stating that "The Attorney General has reported to me that more than 300 persons who entered the United States as refugees are currently the subjects of counterterrorism investigations by the Federal Bureau of Investigation."  Issues with the Attorney General and counterterrorism aside, the objections of other government officials regarding the efficacy of the travel ban would certainly figure in any judicial measurement of the fit between the travel ban and the government purposes.

In terms of litigation and constitutional challenges, the first order of business will be procedural questions regarding whether the new EO can be substituted for the previous EO through amended complaints and other pleadings or will there need to be new cases.

 

 

 

.@POTUS has signed a new executive order that will keep the nation safe. Read it at https://t.co/XcBwwEJJHF pic.twitter.com/Yx2mikXl2A

— Sean Spicer (@PressSec) March 6, 2017

DC Circuit Upholds Statute Prohibiting Speeches in Supreme Court Building

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

Reversing the district judge, the D.C. Circuit's opinion in United States v. Bronstein upheld the prohibition of certain speech in the United States Supreme Court against a challenge that it was unconstitutionally vague and thus violated the Fifth Amendment's Due Process Clause.

The statute, 40 U.S.C. § 6134, entitled “Firearms, fireworks, speeches, and objectionable language in the Supreme Court Building and grounds,” provides:

It is unlawful to discharge a firearm, firework or explosive, set fire to a combustible, make a harangue or oration, or utter loud, threatening, or abusive language in the Supreme Court Building or grounds.

The district judge had found that “harangues” and “orations” are terms that “cannot be determined without reference to subjective perceptions and individual sensitivities," and thus the statute was not sufficiently precise. The unanimous D.C. Circuit panel found that the statute's

core meaning is delivering speeches of various kinds to persons within the Supreme Court’s building and grounds, in a manner that threatens to disturb the operations and decorum of the Court. In the context of the Supreme Court’s building and grounds, the terms’ core meaning proscribes determinable conduct.

 Moreover, the court found that "while “harangue” and “oration” may not roll off the average person’s tongue today," this "does not alter their possession of a settled meaning around public speeches."  The general sense is "making a speech to a public assembly," and based on the title of the statute, the sense is clear that this pertains to "noises" intended to "disrupt the court's operations." 

In its application, the opinion by Judge Janice Rogers Brown somewhat oddly includes a cinematic reference:

Turning to the facts here, a person of ordinary intelligence could read this law and understand that, as a member of the Supreme Court’s oral argument audience, making disruptive public speeches is clearly proscribed behavior—even in staccato bursts, seriatim. And yet, in a coordinated fashion, each Appellee is alleged to have directed a variation of the same message to the Justices of the Supreme Court and the assembled audience. Their coordinated standing, facing the bench, and messaging indicate the Appellees were addressing the Court and gallery. Cf. MY COUSIN VINNY (20th Century Fox 1992) (Judge Chamberlain Haller: “Don’t talk to me sitting in that chair! . . . When you’re addressing this court, you’ll rise and speak to me in a clear, intelligible voice.”). Viewed objectively, these alleged acts could easily be considered speeches to a public assembly that tended to disrupt the Court’s operations—conduct covered by § 6134’s prohibition of “make a harangue or oration.”

 Earlier in the Bronstein opinion, joined by Judge Srinivasan and Senior Judge Williams, Judge Brown does provide more of the substance of the speeches which included objections to Citizens United and the legal construction of money as speech.  Judge Brown notes that the protest occurred on "April Fools Day of 2015;" the protest group describes the timing as being on the eve of the one year anniversary of McCutcheon v. FEC. (There were no arguments on April 2, the actual anniversary, or the day after). 

While a due process decision, Bronstein is consistent with judicial rejection of First Amendment challenges to statutes prohibiting expression in and around the United States Supreme Court.  We've previously discussed the "special status" of the United States Supreme Court building, the Supreme Court's efforts to ensure its regulations were constitutional, as well as the D.C. Circuit's opinion in Hodge v. Talkin (2015) which upheld the constitutionality of statutory prohibitions of assembly and display of flags or signs on the United States Supreme Court plaza, and the arrest of a person for wearing a jacket with the word "Occupy" on it.

 

 

Habeas Petition by DACA Recipient Detained by ICE Agents

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

A habeas petition filed in Ramirez Medina v. US Department of Homeland Security avers constitutional violations of procedural due process and substantive due process under the Fifth Amendment as well as unlawful seizure under the Fourth Amendment.

The petition comes amidst reported "raids" by Immigration and Customs Enforcement (ICE) across the country.  Ramirez, who is a 23 year old non-citizen, had been granted employment authorization under the Deferred Action for Childhood Arrivals (DACA) program in 2014, and it was renewed in 2016.  According to the allegations in the petition, he was not the target of ICE agents, but encountered them when the agents arrested his father.  When the ICE agents asked him if he was "legally here," Mr. Ramirez responded that was, relying on his employment authorization under DACA.  Nevertheless, as the petition alleges

ICE agents then took Mr. Ramirez to a processing center in Seattle, Washington. When he again informed them about his work permit, one of the ICE agents stated: “It doesn’t matter, because you weren’t born in this country.” At this point, the ICE agents had Mr. Ramirez’s wallet, which contained his work permit, which clearly identified him as a DACA recipient with a “C-33” code, which reflects a work authorization issued pursuant to DACA. Despite this fact, Mr. Ramirez was questioned further, fingerprinted, booked, and taken to a detention center in Tacoma, Washington.

image: ICE agent making arrest via

The first count argues that the detention (apparently still continuing) is a violation of procedural due process rights.  Ramirez alleges an interest in his liberty, but also alleges a property interest by virtue of the promises made in the DACA program.  Thus, the Matthews v. Eldridge balancing test should apply, affording Ramirez both notice and hearing, as well as application of the extant policies - - - which provide he should not be detained - - - given his DACA status.  The second count of substantive due process alleges that Ramirez's liberty is a fundamental interest of which he has been wrongly deprived.  And lastly, the Fourth Amendment claim alleges an absence of probable cause for his arrest.

The Western District of Washington Magistrate has set a hearing for the morning of Friday, February 17, with briefs due the previous day.  The Magistrate has ordered the brief of DHS to answer, with an opportunity for Ramirez to respond, to the following questions:

• a. Is petitioner still detained? What is the basis for his detention, given that he has been granted deferred action under the Deferred Action for Childhood Arrivals program?
• b. Has petitioner been placed in removal proceedings? What was the result of ICE’s initial custody determination? Has petitioner requested a bond hearing before an Immigration Judge? When is any bond hearing scheduled to occur?
• c. Does the Court have the authority to order an Immigration Judge and the Board of Immigration Appeals to consider any challenge to petitioner’s detention status on an expedited basis?
• d. If petitioner is still detained and removal proceedings have not been initiated against him, what is the basis for ICE’s authority to detain him? What limitations are there, if any, on the Court’s ability to hold a detention hearing for petitioner before the merits of his habeas petition have been decided?

 

 

Hawai'i Challenges the "Muslim Ban" in Federal Court

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

Joining the more than 15 other cases filed across the nation challenging Trump's Executive Order Protecting the Nation From Foreign Terrorist Entry Into the United States, now available on the whitehouse.gov site here, today Hawai'i filed a Complaint in Hawai'i v. Trump, accompanied by a  lengthy motion for Temporary Restraining Order and supporting Memorandum of Law.

Hawai'i asserts standing as a state based on its diversity in ethnic population, its high number of noncitizen residents including business owners and students, and its tourism-based economy. Washington state previously brought suit (with an oral ruling granting a TRO); Virginia is seeking to intervene in a lawsuit there.

The constitutional claims are by now familiar from suits such as the first one in Darweesh v. Trump and the one filed by CAIR, Sarsour v. Trump, including Equal Protection claims as we analyzed here. Other constitutional claims generally include First Amendment Establishment Clause and Free Exercise Clause and Procedural Due Process.  There have also been constitutional claims based on the Emoluments Clause (Mohammed v. United States, filed in U.S. District Court for the Central District of California, with Temporary Restraining Order entered) and a substantive due process right to familial association (Arab American Civil Rights League v. Trump , filed in U.S. District Court for the Eastern District of Michigan, with an injunction entered.  Again, Lawfare is maintaining a collection of all the primary source documents.

The Hawai'i complaint includes an innovative count alleging a violation of the substantive due process right to international travel. According to the supporting memo, the right to travel abroad is  “part of the ‘liberty’” protected by the Due Process Clause; as the Court stated in Kent v. Dulles (1958), “Freedom of movement is basic in our scheme of values.” The EO fails to satisfy the applicable due process standard for the same reasons it fails the equal protection analysis.

The Attorney General has not been confirmed and the Acting AG was terminated by the President when she stated the Muslim Ban was indefensible, but the DOJ attorneys seem to be vigorously defending these suits.

Sixth Circuit Finds Standing in "Juggalo" Constitutional Challenge to Gang Designation

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

In its opinion in Parsons v. Department of Justice today, a panel of the Sixth Circuit reversed the district judge's dismissal of a complaint for lack of standing by individuals who identify as "Juggalos"  a group the FBI's National Gang Intelligence Center (NGIC) has identified as a "hybrid gang."  The individuals alleged that "they subsequently suffered violations of their First and Fifth Amendment constitutional rights at the hands of state and local law enforcement officers who were motivated to commit the injuries in question due to the identification of Juggalos as a criminal gang."

                                                                                                                 image via

As the court explained, Juggalos are fans of Insane Clown Posse, a musical group, and its record label, Psychopathic Records, who often wear or display Insane Clown Posse tattoos or insignia, as well as paint their faces. The complaint alleged various actions by law enforcement, including detentions and inference with performances, as a result of the gang designation.

The court found that while their allegations of chilled expression were insufficient to rise to the requisite "injury in fact" required under standing doctrine,

The Juggalos’ allegations that their First Amendment rights are being chilled are accompanied by allegations of concrete reputational injuries resulting in allegedly improper stops, detentions, interrogations, searches, denial of employment, and interference with contractual relations. Stigmatization also constitutes an injury in fact for standing purposes.  As required, these reputational injuries are cognizable claims under First Amendment and due process causes of action.

[citations omitted].  Thus, the court held that the injury in fact requirement was satisfied as to the First Amendment and due process claims.

As to causation, the court held that the Juggalos’ allegations "link" the gang report to their injuries "by stating that the law enforcement officials themselves acknowledged that the DOJ gang designation had caused them to take the actions in question."   Thus, at this initial stage of the case, the Juggalos’ allegations sufficed.

On the question of redressibility, the remedy sought included a finding that the gang report is invalid.  The court rejected the government's argument that such information about the Juggalos was available from other sources by stating that the test is not that the "harm be entirely redressed." "While we cannot be certain whether and how the declaration sought by the Juggalos will affect third-party law enforcement officers, it is reasonable to assume a likelihood that the injury would be partially redressed where, as here, the Juggalos have alleged that the law enforcement officers violated their rights because of" the government report.  The court seemingly found it pertinent that the DOJ's report gave the gang designation an impressive "imprimatur" of government authority.

As the Sixth Circuit made clear, the complaint remains subject to the motion to dismiss on other grounds, but this is an important victory for the Juggalo quest to remove its gang-identification.

Supreme Court Decides Raisin USDA Program is an Unconstitutional Taking

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

The United States Supreme Court's opinion in Horne v. Department of Agriculture (USDA)
decisively declares the USDA's "California Raisin Marketing Order," under which a percentage of a grower's crop must be "put in reserve" is unconstitutional under the Fifth Amendment's Takings Clause. 

This regulatory program, under the authority of the Agricultural Marketing Agreement Act (AMAA) of 1937, as amended, 7 U.S.C. § 601 et seq., regarding raisins, is similar to other USDA programs and thus could have wide application. 

By resisting the program on behalf of "farmers," the Hornes have become "outlaws" or heroes of sorts. This is the second time that the Hornes have been to the Supreme Court: Recall that in a brief opinion in June 2013, the Court reversed the Ninth Circuit and held that the Hornes did state a claim for a taking. 

Today, again reversing the Ninth Circuit, the Court held that a taking did occur and that the Hornes were entitled to just compensation under the Fifth Amendment.  Only Justice Sotomayor dissented from this conclusion, but Justices Breyer, Ginsburg, and Kagan did not join Chief Justice Roberts's opinion for the Court regarding the determination of "just compensation."

Relying on a Magna Carta provision regarding corn as well as on colonial history, Chief Justice Roberts's opinion for the Court concludes that the Fifth Amendment's Taking Clause applies with equal force to personal property as to real property.  Any distinction between real and personal property might be relevant in a regulatory takings case, but the Court stressed that this is a "clear physical taking": "Actual raisins are transferred from the growers to the Government."  (Whether this happens in a physical seizure was debated in the contentious oral argument and made another appearance in a to-and-fro between the Court's opinion and Sotomayor's dissent).  For the Court, growers thus lose "the entire 'bundle' of property rights in the appropriated raisins."  Dissenting, Justice Sotomayor disagrees that it is the entire bundle and thus disputes this conclusion.  Given this physicality, it is irrelevant for the Court that the USDA could achieve the same ends through a regulatory taking (such as prohibiting the sale):

A physi­cal taking of raisins and a regulatory limit on production may have the same economic impact on a grower. The Constitution, however, is concerned with means as well as ends. The Government has broad powers, but the means it uses to achieve its ends must be “consist[ent] with the letter and spirit of the constitution.” McCulloch v. Maryland, 4 Wheat. 316, 421 (1819).

The Court also rejected the notion that because the USDA program reserved a contingent interest in the raisins for the growers that this relieved the government duty to pay just compensation. 

The Court also found that the USDA mandate to reserve raisins as a "condition" for engaging in interstate commerce effected a per se taking.  In reaching this conclusion, the Court rejected the Ninth Circuit's observation that the growers could grow other crops or use the grapes differently - - -

“Let them sell wine” is probably not much more comfort­ing to the raisin growers than similar retorts have been to others throughout history.

The Court also reached this conclusion by distinguishing other takings cases and other products. Ruckelshaus v. Monsanto Co., 467 U. S. 986 (1984) is inapplicable because "raisins are not dangerous pesticides; they are a healthy snack."  Leonard & Leonard v. Earle, 279 U. S. 392 (1929) is likewise inapposite because "Raisins are not like oysters: they are private property— the fruit of the growers’ labor—not “public things" such as oysters that belonged to the state under state law.

The majority [corrected] of the Court determined that the "just compensation" owed to the Hornes is the fair market value of the raisins, the subject of the fine imposed by the USDA: $483,843.53.   Justice Breyer (and Ginsburg and Kagan), disagreeing with this conclusion, would remand the matter for a determination.  It is not that Justice Breyer disagrees that this was the amount of the fine, but that he disputes that this is the actual fair market value absent the taking.  In other words, the raisin reserve program operated to increase the cost of raisins.  Thus, without the program benefit, the raisins in reserve may have been worth much less that the amount fined, or even, Justice Breyer suggests, nothing at all.  He contends that the question of evaluation was not properly briefed before the Court.  For the Chief Justice, however, "This case, in litigation for more than a decade, has gone on long enough."

[image: 1916 California Sun Maid Raisin Recipe Book via]

Second Circuit Gives Detainee Case Against Ashcroft, Mueller the Go-Ahead

Steven D. Schwinn, John Marshall Law School

The Second Circuit ruled today that a civil rights case by former alien detainees against former AG John Ashcroft, former FBI Director Robert Mueller, former INS Commissioner James Zigler, and officials at the Metropolitan Detention Center can move forward.

The ruling is not a decision on the merits, but instead says that the bulk of the plaintiffs' case against the officials is not dismissed and can proceed to discovery.

Still, the ruling is significant, to say the least. It means that officials at the highest level of the DOJ will have to answer in court for their actions that led directly to the wrongful detention and mistreatment of aliens who were mistakenly swept up in the 9/11 investigation, even though, as the court said, "they were unquestionably never involved in terrorist activity."

The case, Turkmen v. Ashcroft, over thirteen years old, challenges the defendants' moves that resulted in the detention and mistreatment of aliens in the post-9/11 investigation, even though they had nothing to do with the 9/11 attacks or terrorist activities. In particular, the plaintiffs claimed that they were detained between three and eight months, without individualized suspicion and because of their race, religion, ethnicity, or national origin, and subjected to various forms of mistreatment.

The plaintiffs alleged that the DOJ defendants took certain actions that resulted in their detention and unlawful treatment, with knowledge that the plaintiffs were wrongfully detained and mistreated. They also alleged that the MDC defendants took official actions that led to their abuse and knew about certain "unofficial abuse."

The defendants moved to dismiss for failure to state a claim, on qualified immunity grounds, and, for some claims, that Bivens did not extend a cause of action. The district court dismissed all claims against the DOJ defendants and some claims against the MDC defendants.

The Second Circuit (mostly) reversed and allowed the case to move forward. The court said that the plaintiffs adequately pleaded their constitutional claims (and met the Iqbal pleading standard) that the DOJ and MDC defendants acted directly to violate the plaintiffs' constitutional rights. Key to the ruling was the plaintiffs' carefully pleaded complaint, which incorporated most of two reports of the DOJ's Office of Inspector General, helping plaintiffs to meet the plausibility test. Also key was the plaintiffs' allegations that the DOJ defendants received regular information on the post-9/11 investigation, including detainees, and that they ordered and implemented certain policies and took certain actions that resulted directly in the plaintiffs' wrongful detention.

Along the way, the court ruled that the plaintiffs had Bivens claims (except for their free exercise claim), even though the DOJ defendants didn't argue Bivens on appeal. The court also ruled that the defendants weren't entitled to qualified immunity, because the law on pretrial detention and mistreatment was clear at the time.

The court concluded:

The suffering endured by those who were imprisoned merely because they were caught up in the hysteria of the days immediately following 9/11 is not without a remedy.

Holding individuals in solitary confinement twenty-three hours a day with regular strip searches because their perceived faith or race placed them in the group targeted for recruitment by al Qaeda violated the detainees' constitutional rights. To use such a broad and general basis for such severe confinement without any further particularization of a reason to suspect an individual's connection to terrorist activities requires certain assumptions about the "targeted group" not offered by Defendants nor supported in the record. It assumes that members of the group were already allied with or would be easily converted to the terrorist cause, until proven otherwise. Why else would no further particularization of a connection to terrorism be required? Perceived membership in the "targeted group" was seemingly enough to justify extended confinement in the most restrictive conditions available.

Judge Reena Raggi dissented.

Fourth Circuit Dismisses Challenges to Muni Election Law

Steven D. Schwinn, John Marshall Law School

The Fourth Circuit ruled in Greenville County Republican Party v. Greenville County Election Commission that various challenges to South Carolina's municipal election procedures lacked justiciability and dismissed the case.

South Carolina law required municipalities to adopt by ordinance either a partisan or nonpartisan way of nominating candidates for public office in municipal elections. If a municipality selected the partisan method, South Carolina law allowed a certified political party to select one of three procedures: a party primary, a party convention, or a petition. Nomination by party primary required an open primary. Nomination by convention required a 3/4 super-majority vote of the party membership.

The Greenville County Republican Party Executive Committee, an affiliate of the state Republican party but not itself a certified political party, challenged these procedures under the First, Fifth, and Fourteenth Amendments. The Committee sought declaratory and injunctive relief, and monetary damages for having to implement the procedures in prior elections.

As the case worked its way up and down, Greenville changed its ordinance to nominate candidates using a nonpartisan procedure.

The Fourth Circuit ruled that this mooted the Committee's claims for prospective relief. In particular, the court said that the County's decision was not capable of repetition but evading review, because the Committee didn't satisfy its burden of establishing "a reasonable expectation" that it wouldn't go back to the partisan method of nominating candidates for future elections.

As to the surviving claims, the court held that the Committee lacked standing. The court said that the Committee didn't suffer any harm from the super-majority requirement for convention-nominated candidates; instead, the state party suffered that harm--making the Committee's claim a nonjusticiable third-party claim. The court also held that the Committee couldn't satisfy the traceability prong of standing, because it was the state party, not Greenville, that elected to use the open primary system. (The state Republican Party was at one time party to the suit, but withdrew.)

The ruling ends this suit, and, in the wake of Greenville's decision to use a nonpartisan nominating process, almost certainly ends any challenges to Greenville's old partisan process.

Federal Judge Declares No-Fly List Process Unconstitutional

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

In her  opinion in Latif v. Holder, Judge Anna Brown of the District of Oregon concluded that the "no-fly list" violates the Fifth Amendment's guarantee of due process.

Judge Brown's well-crafted 65 page opinion applies the well-established "balancing test" for  procedural due process first articulated by the United States Supreme Court in 1976 in Mathews v. Eldridge.  Under this test, a court weighs several factors to determine "how much process is due":

• the interests of the individual and the injury threatened by the official action;
• the risk of error through the procedures used and probable value, if any, of additional or substitute procedural safeguards;
• the costs and administrative burden of the additional process, and the interests of the government in efficient adjudication

image via

After analyzing the factors and weighing the government's interest in preventing terrorism heavily, Judge Brown considered similar "terrorism" cases and noted that the

Plaintiffs in this case were not given any notice of the reasons for their placement on the No—Fly List nor any evidence to support their inclusion on the No—Fly List. Indeed, the procedural protections provided to Plaintiffs through the DHS TRIP process fall substantially short of even the notice that the courts found insufficient [in another case].

Moreover, the government's failure to provide any notice of the reasons for Plaintiffs’ placement on the No—Fly List

is especially important in light of the low evidentiary standard required to place an individual in the TSDB in the first place. When only an ex parte showing of  reasonable suspicion supported by "articulable facts . . . taken together with  rational inferences” is necessary to place an individual in the TSDB, it is certainly possible, and probably likely, that “simple factual errors” with “potentially easy, ready, and persuasive explanations” could go uncorrected.

[ellipses in original].  Thus, she concludes that "without proper notice and an opportunity to be heard, an individual could be doomed to indefinite placement on the no-fly list."

In granting partial summary judgment in favor of the Plaintiffs, Judge Brown directed the government defendants to "fashion new procedures" that provide the Plaintiffs with the requisite due process "without jeopardizing national security."

Certainly this litigation, which already has an extensive history, is far from over, but Judge Brown's finding of a lack of procedural due process in the government's no-fly lists is exceedingly important.

 

Court Releases Memo Outlining Legal Authority for Targeted Killing, Drones

Steven D. Schwinn, John Marshall Law School

The Second Circuit today released a redacted version of the DOJ/OLC memo outlining the government's legal authority for the use of a drone attack to kill Anwar al-Aulaqi (sometimes spelled al-Awlaki).  We've blogged extensively about this issue, including here, on the earlier released white paper outlining the government's authority to conduct the same attack.

The released version does not include the first 11 pages of the memo, presumably including the information that the government passed on to the OLC about al-Awlaki that formed the basis of the analysis.  It's not clear whether that first 11 pages included other material or analysis.  (The released version starts with "II.")  There are other redactions throughout, especially in the portion analyzing the CIA's authority to conduct drone attacks.

The analysis in the memo differs slightly from the analysis in the earlier white paper, but, because of the redactions, it's not clear how much this matters.  Thus, for example, the analysis released today makes a careful distinction between DoD authority and CIA authority to conduct a targeted drone attack.  (The earlier white paper didn't make this clear distinction.)  But it's not entirely clear why or how that distinction is significant, given that much of the CIA analysis is redacted.  The analysis released today is also more fact specific.  (The earlier white paper didn't so clearly limit itself to the facts of one case.) But the memo today redacts the facts, so we don't know them.

Other than those points, the analysis released today doesn't appear to be importantly different than the earlier white paper.

As we've noted, and as others have noted, the analysis leads to the surprising result that the government may be able to kill someone by drone attack more easily than it may detain them (with due process under Hamdi).  Still, we don't know this for sure, because we don't know precisely what processes the government used in killing al-Awlaki: that detail is redacted from the memo.

The memo starts by outlining the statutory prohibition on foreign murder of a U.S. national--the federal provision that outlaws one U.S. national from killing another overseas.  That provision, 18 U.S.C. 1119(b), says that "[a] person who, being a national of the United States, kills or attempts to kill a national of the United States while such national is outside the United States but within the jurisdiction of another country shall be punished as provided under sections 1111, 1112, and 1113."  Section 1111 penalizes "murder," defined as "the unlawful killing of a human being with malice aforethought."  The memo thus centers on whether al-Aulaqi's killing was "unlawful."

The memo says that the killing was not unlawful, because the prohibition includes the "recognized justification" of "public authority"--that is, the government's ability to kill under its public authority.  As to the Defense Department's use of drones, the memo says that (1) the president had executive war powers authorized by Congress under the AUMF, (2) the AUMF authorized the president to use all necessary force against al-Qaida and associated forces (the OLC said that the AUMF included associated forces in an earlier memo), (3) al-Aulaqi was a member of al-Qaida or associated forces (AQAP) who posed a "continued and imminent threat" to the U.S., and (4) the DoD was acting pursuant to statutory authorization in targeting and killing al-Aulaqi.  Moreover, the memo says that al-Aulaqi's killing comports with the laws of war.  That's because DoD "would carry out its operation as part of the non-international armed conflict between the United States and al-Qaida, and thus that on those facts the operation would comply with international law so long as DoD would conduct it in accord with the applicable laws of war that govern targeting in such a conflict."  The memo said that this operation in Yemen is part of that conflict, even though Yemen is not within the area of that conflict.  Finally, the memo says that the method of killing complies with the laws of war--that is, that the targeted drone attack complies with the principle of distinction, it would minimize civilian casualties, and it would not violate prohibitions on "treachery" and "perfidy" (because those "do not categorically preclude the use of stealth or surprise, nor forbid military attacks on identified, individual soldiers or officers . . . and we are not aware of any other law-of-war grounds precluding the use of such tactics.").

The memo drew the same, or very similar, conclusions as to the CIA's use of a drone strike, but that section was largely redacted.

(The memo also said that another murder-abroad statute similarly did not prohibit the strike, and that the War Crimes Act did not prohibit it, because al-Aulaqi was still an active, fighting beligerent, and an allowable target under the laws of war.)

As to Fourth- and Fifth Amendment protections, the memo says that a high-level decision-maker ("the highest officers in the intelligence community") can make a determination to use lethal force and authorize a strike.  (That's about all it said: this portion of the memo is also highly redacted.)

The memo makes clear that this is all context specific: the "facts" given to OLC that form the basis of its analysis are "sufficient" for the Office to form its conclusions, but the memo declines to say whether those facts are also necessary.  (And we don't know them, in any event, because they're redacted.)

 

Trademark Trial and Appeal Board Cancels Trademark Registration of Football Team as Disparaging

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

In an extensive opinion today in Blackhorse v. Pro-Football, Inc., Cancellation No. 92046185, a divided Trademark Trial and Appeal Board canceled the trademark of the term "redskins" as violative of  section 2(a), 15 U.S.C. § 1052(a), prohibiting registration of marks that may disparage persons or bring them into contempt or disrepute. 

The majority opinion relied upon dictionary definitions, expert opinions, and surveys to conclude that the term is disparaging - - - and was so at the time the trademark was approved.  The majority rejected the laches defense in part because "there is an overriding public interest in removing from the register marks that are disparaging to a segment of the population beyond the individual petitioners."

 

Judge Bergsman's dissenting opinion disagreed with the

majority’s decision to grant the petition on the claim of disparagement because the dictionary evidence relied upon by the majority is inconclusive and there is no reliable evidence to corroborate the membership of National Council of American Indians.

To be clear, this case is not about the controversy, currently playing out in the media, over whether the term “redskins,” as the name of Washington’s professional football team, is disparaging to Native Americans today. The provisions of the statute under which the Board must decide this case – §§ 2(a) and 14(3) of the Trademark Act, 15 U.S.C. §§ 1052(a) and 1064(3) – require us to answer a much narrower, legal question: whether the evidence made of record in this case establishes that the term “redskins” was disparaging to a substantial composite of Native Americans at the time each of the challenged registrations issued.

Neither the majority or dissenting opinion - - - both of which are lengthy - - - engage with the possible First Amendment free speech issues or with the possible Equal Protection issues; this is decidely a case interpreting a statutory provision regarding trademark. 

Yet the constitutional contours of speech and equality are evident in both opinions, just as constitutionalism has been implicated in the controversies surrounding the use of the term.  Thus, while a "trademark case," Blackhorse v. Pro-Football, Inc. is worth consideration by constitutional students and scholars.   And its comparison to the "dykes on bikes" trademark case, which I've discussed here, is also worth consideration by those interested in constitutionalism, democracy, and language.

 

District Court Rejects Targeted Killing Claim

Steven D. Schwinn, John Marshall Law School

Judge Rosemary M. Collyer (D.D.C.) yesterday dismissed a civil damages claim against government officials for their roles in authorizing the targeted killing of Anwar Al-Aulaqi, his son, and Samir Khan.  Judge Collyer wrote in Al-Aulaqi v. Panetta that "special factors" counseled against the Bivens claim.

We've covered Al-Aulaqi's claims extensively (sometimes Al-Awlaki, sometimes Al-Awlaqi), both pre-killing and post-killing, brought by his father, Nasser.  Here's our post on Judge Bates's ruling dismissing Nasser's case to stop the killing.

The ruling adds to a body of lower-court cases limiting civil damage remedies against government officials for constitutional violations for actions related to the military, intelligence, and terrorism.  Indeed, these cases give government officials a free pass against civil damages claims for any action even loosely related to these areas, even with no showing by the government that the claims raise special factors counseling against a remedy (as this case illustrates--see below).

Nasser Al-Aulaqi brought this claim on behalf of his son Anwar and grandson Abdulrahman, along with Sarah Khan, who brought the claim on behalf of her son Samir.  Anwar was designated for targeting; Abdulrahman and Samir were not (they were bystanders in Anwar's targeted killing and another targeted killing).  All three were U.S. citizens. 

Nasser and Sarah sued government officials in their personal capacity under Bivens for Fourth and Fifth Amendment violations (among others).  The officials moved to dismiss, arguing that the complaint failed to state a claim, that special factors counseled against a Bivens remedy, and that they enjoyed qualified immunity.  

Judge Collyer ruled that special factors counseled against a Bivens remedy.  Citing Doe v. Rumsfeld, Lebron v. Rumsfeld, and Vance v. Rumsfeld, she wrote that military decisions get a pass, and that Bivens ought not be extended to them:

In this delicate area of warmaking, national security, and foreign relations, the judiciary has an exceedingly limited role.  This Court is not equipped to qustion, and does not make a finding concerning, Defendants' actions in dealing with AQAP generally or Awar Al-Aulaqi in particular.  Its role is much more modest: only to ensure that the circumstances of the exercise of war powers against a specifically-targeted U.S. citizen overseas do not call for the recognition of a new area of Bivens relief.

Here, Congress and the Executive have acted in concert, pursuant to their Constitutional authorities to provide for national defense and to regulate the military.  The need to hesitate before implying a Bivens claim is particularly clear.  Congress enacted the AUMF, authorizing the Executive to use necessary and appropriate military force against al-Qa'ida and affiliated forces.  It is the Executive's position that AQAP is affiliated with al-Qa'ida. 

. . .

Permitting Plaintiffs to pursue a Bivens remedy under the circumstances of this case would impermissibly draw the Court into "the heart of executive and military planning and deliberation," as the suit would require the Court to examine national security policy and the military chain of command as well as operational combat decisions regarding the designation of targets and how best to counter threats to the United States.

. . .

Plaintiff's Complaint also raises questions regarding foreign policy because Anwar Al-Aulaqi was a dual U.S.-Yemeni citizen who was killed in Yemen.  Plaintiff's suit against top U.S. officials for their role in ordering a missile strike against a dual citizen in a foreign country necessarily implicates foreign policy.

Remarkably, the court so concluded without any help of from the government--even after the court ordered the government to help by providing material in camera and ex parte to support the special-factors defense.

The United States filed a Statement of Interest in the case, stating that it might later assert a state secrets defense.  Judge Collyer ordered the government to lodge declarations, in camera and ex parte to explain why special factors counseled against a Bivens remedy in the case.  The government refused, arguing that the court could resolve the defendants' motion to dismiss on the complaint alone.  

Judge Collyer scolded the government for its refusal--and wrote that this made the court's job "unnecessarily difficult"--but still "cobble[d] together enough judicially-noticeable facts from various records" to conclude that special factors counseled against a Bivens remedy.  She wrote that without these facts, the court "would have denied the motion to dismiss."

Illinois Supreme Court: State's Eavesdropping Statute Unconstitutional

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

Can a government criminalize the recording of conversations absent consent without violating the First Amendment, or perhaps the Due Process Clause?

In its opinion in People v. Clark, and a companion opinion in People v. Melongo, the Illinois Supreme Court held the state's statutory criminalization of eavesdropping unconstitutional.

Both cases relied upon ACLU v. Alvarez, in which the Seventh Circuit enjoined the statute from being applied to a Chicago police accountability program.

In Clark, the Illinois Supreme Court held that 720 ILCS 5/14-2(a)(1)(A), the eavesdropping statute, violated the First Amendment's overbreadth doctrine "because a substantial number of its applications are unconstitutional, judged in relation to the statute’s plainly legitimate sweep."  The court recognized the ubiquity of smartphones and other recording devices.

Importantly for the court, the statute criminalized a "whole range of conduct involving the audio recording of conversations that cannot be deemed in any way private."  It gave these examples:

1.  a loud argument on the street;
2. a political debate in a park;
3. the public interactions of police officers with citizens (if done by a member of the general public); and
4. any other conversation loud enough to be overheard by others whether in a private or public setting.

Although the opinion in Clark is a brief 9 pages, it's substantial and well-reasoned.

Equally brief and well-reasoned, although somewhat more complex, is the companion opinion in Melongo.  The state argued that Melongo's First Amendment claim was not cognizable on appeal, unlike the Due Process claim, and that the constitutional claims were inconsistent with her defense at trial.  Nevertheless, the court found that the statutory provision was unconstitutional under the First Amendment for the same rationale as in Clark.  Melongo also raised a constitutional claim to the "publishing provision" of the statute, which further criminalizes the "publishing" of any recording made without consent.  The court similarly found this provision overbroad.

It will be interesting to see how the Illinois legislature responds.

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Sixth Circuit Upholds Ohio's Dangerous Animals Act

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

In its  opinion in Wilkins v. Daniels, a panel of the Sixth Circuit affirmed the district judge and affirmed the constitutionality of the Ohio Dangerous Wild Animals and Restricted Snakes Act, which became effective January 1, 2014.  The Act prohibits possession of dangerous wild animals - - - including tigers, lions, bears, alligators, and pythons 12 feet or longer - - - without a permit.  The permit requirements include the implantation of a microchip under the animal's skin.  The Act includes an exemption for individuals accredited by the Association of Zoos and Aquariums (AZA) or the Zoological Association of America (ZAA).

The exemption in the Act's scheme and the "chipping" requirement give rise to the constitutional challenges.

First, and perhaps most creatively, the challengers argued that the exemption for "individuals accredited by the Association of Zoos and Aquariums (AZA) or the Zoological Association of America (ZAA)" constituted compelled speech prohibited by the First Amendment.  This compelled speech argument had two "distinct but interrelated" parts:  a compelled association claim because the Act "forces" them to join either the AZA or ZAA and a compelled speech claim because the Act requires them to "subsidize the speech of their purely private political and ideological rivals,” the AZA or ZAA.

The panel briefly and accurately set out the doctrine and classic First Amendment cases, but the court's analysis is digestable to its conclusion that there was no compulsion, by association or subsidy: "There are fifteen ways appellants can comply with the Act: the permitting requirement and fourteen exemptions."  As the panel concluded, "[m]ere unwillingness to conform their conduct to the permitting requirements or the other thirteen exemptions does not mean that the Act compels appellants to join the AZA or ZAA."

Second, the challengers argued that microchipping requirement violated the Takings Clause.  The panel found the challenge not ripe because there was no pursuit of state compensation.  But, on the merits, the panel found that there was not a taking, stressing the physical taking (rather than the regulatory taking) aspect that seemed to be the central argument.  The court analogized to other types of "property," accepting the State's argument that if the Act’s microchipping requirement to be ruled a taking, “laws requiring license plates on cars, warning labels on packaging, lighting on boats, handrails in apartment buildings, and ramps leading to restaurants” would be suspect.

The court rejected these constitutional challenges that, while innovative, seemed to have little support in the doctrine.  The arguments also had little political appeal - - - the court notes in its opinion that the Ohio Act was prompted by an incident in which "an Ohio man released over fifty exotic animals before committing suicide."

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