Constitutional Law Prof Blog

Can Minority Members on a Congressional Committee Sue to Get Agency Material?

The Supreme Court this week agreed to hear a case testing whether minority members on a congressional committee can sue to enforce their statutory right to obtain material from an agency.

But this isn't just any minority, and it's not just any agency material. The dispute arises out of congressional Democrats' efforts to obtain material from the General Services Administration about the Trump organization's lease with the Old Post Office for the Trump International Hotel.

In February 2017, the then-House Oversight Committee ranking member and seven other Democrats (but not a majority of the Committee, because Dems were in the minority) asked GSA for material related to GSA's 2013 lease of the Old Post Office building to Trump Old Post Office LLC. The members cited 5 U.S.C. Sec. 2954, which provides

An Executive agency, on request of the [Committee on Oversight and Reform] of the House of Representatives, or of any seven members thereof, or on request of the Committee on [Homeland Security and] Governmental Affairs of the Senate, or any five members thereof, shall submit any information requested of it relating to any matter within the jurisdiction of the committee.

GSA declined; the members sued; and GSA argued that the members lacked standing.

The case, Maloney v. Murphy, now pits two theories of standing against each other. On the one hand, the members say that they have standing based on an informational harm--that they have a right to information (under Section 2954), and that the GSA denied them that information. This is a little like you or me seeking to enforce a FOIA request in court: a statute grants us a right to information, an agency declines to provide it, and we can sue. But the theory depends on members suffering an informational harm that is personal and individual to them (even if as members of Congress), and not a harm on behalf of Congress (or a committee of Congress) as a body. They point to Powell v. McCormack, among other cases, where the Court has held that a member of Congress has standing based on an injury that is particular to them as a legislator. The D.C. Circuit adopted this theory when it ruled that the members have standing.

On the other hand, GSA (then and now) says that individual members lack standing based on a harm to Congress, the House, or their committee. GSA points to Raines v. Byrd, where the Court held that individual members of Congress can't sue to challenge the Line Item Veto Act, because the harm went to Congress, not to the individual members.

The difference will likely turn on how the Court interprets Section 2954. If the Court reads the statute to authorize individual members to obtain agency material as individual legislators, to serve their individual legislative functions, then the Court will likely say that the members have standing. But if the Court reads the statute to protect the right of the committees to obtain information, it'll likely say they don't.

Why Did the Eighth Circuit Halt Educational Debt Cancellation (after Justice Barrett allowed it)?

Steven D. Schwinn, University of Illinois Chicago School of Law

Justice Barrett last week denied an emergency request by a Wisconsin taxpayer association to halt the Biden Administration's program to cancel qualifying student debt. The ruling meant that the Administration could continue to operate the program pending the association's appeal.

Then the Eighth Circuit granted the same emergency relief to Missouri in a parallel case. This ruling halted the program pending appeal.

The two cases raise the same legal claims. District courts in both cases dismissed the cases because the plaintiffs lacked standing. (The Seventh Circuit refused to halt the program while the Wisconsin group appealed.)

So why the difference? Neither Justice Barrett's order nor the Eighth Circuit order contains any legal analysis. So we don't know for sure. But here's a take:

In order to establish standing, a plaintiff has to plausibly allege that they've suffered, or will imminently suffer, a concrete and personal harm, caused by the defendant's actions, and redressible in federal court. Because the harm must be concrete and personal (to the plaintiff), a person or organization cannot establish standing simply because they don't like the way the government is using their taxes. This kind of "generalized taxpayer" harm is too diffuse, and the Court has rejected it as a basis for standing.

The plaintiff in the Wisconsin case is a taxpayer association that unashamedly pleads generalized taxpayer standing. The district court easily rejected standing in that case, and the Seventh Circuit easily declined to halt the Administration's program pending the plaintiff's appeal. Justice Barrett then easily denied the plaintiff's request for emergency relief.

The plaintiff in the Missouri case, in contrast, is the state itself. It asserted standing on behalf of an organization that the state established to service federal loans. The district court ruled that the state didn't have authority to sue on the organization's behalf, and therefore lacked standing. While this seems right (or at least not obviously wrong), it's a closer case than the Wisconsin plaintiff.

That difference may explain the difference in the two preliminary rulings. The Eighth Circuit might've thought that Missouri could establish standing, where Justice Barrett might've seen that the Wisconsin organization couldn't.

But the key word there is "preliminary." No court has yet ruled on the merits. The Administration justifies the debt-cancellation program under the Higher Education Relief Opportunities for Students Act of 2003, which authorizes the Secretary of Education to "waive or modify" terms of federal student loans in an emergency, here COVID-19. The plaintiffs claim in short that the Administration's debt cancellation exceeds the statutory authority, or, if it doesn't, that the statute grants too much discretion in violation of the recently discovered major questions doctrine. Here's the Office of Legal Counsel's opinion on the issue.

Third Circuit Tosses Case Against Pennsylvania COVID Restrictions

Steven D. Schwinn, University of Illinois Chicago School of Law

The Third Circuit ruled yesterday that a case challenging COVID orders of Pennsylvania's governor and secretary of health was moot. The court then vacated the lower court's ruling in favor of the plaintiffs under Munsingwear.

The case, County of Butler v. Governor of Pennsylvania, challenged the defendants' stay-at-home orders, business closure orders, and orders setting congregation limits in secular settings. The district court ruled that the orders violated the Constitution.

But while the appeal was pending, things changed. An amendment to the state constitution and a concurrent resolution of the General Assembly now limit the governor's authority to issue these orders. And the orders expired by their own terms.

The court ruled that these changes mooted the case, and that no exception to mootness applied. It said that the voluntary cessation exception didn't apply, because the orders expired on their own terms, and not in response to litigation. And it said that the capable-of-repetition-but-evading-review exception didn't apply, because the orders were reviewed (and thus didn't evade review), and because there's no chance this'll happen again (and so isn't capable of repetition).

The court went on to rule that the case became moot because of circumstances outside the defendants' control--that they weren't mooting the case themselves in order to game the courts. As such, the court vacated the district court ruling in favor of the plaintiffs under Munsingwear.

Seventh Circuit Upholds Anti-Patronage Consent Decrees Against Cook County Clerk

Steven D. Schwinn, University of Illinois Chicago School of Law

The Seventh Circuit yesterday rebuffed the Cook County Clerk's challenge to a pair of consent decrees designed to monitor political patronage practices in that office and others. The ruling means that the decrees stay on the books (or, more precisely, on the district court's docket). But at the same time, the court warned that federalism concerns counsel in favor of resolving the case, and clearing the decrees from the court's docket, "swift[ly]."

The case, Shakman v. Clerk of Cook County, originated with two consent decrees, the "Shakman Decrees," from 1972 and 1991. The 1972 Decree enjoined Chicago and Cook County officials from "conditioning, basing or knowingly prejudicing or affecting any term or aspect of governmental employment, with respect to one who is at the time already a governmental employee, upon or because of any political reason or factor." The 1991 Decree expanded the 1972 Decree to cover hiring decisions: among other things, it required officials to post "prior public notice of the opportunity to apply for and be hired for" all positions, with just a few exceptions. (The City of Chicago and the Chicago Park District have since demonstrated substantial compliance and have been dismissed.)

While the Shakman Decrees remained on the district court's docket, there wasn't really any significant activity until 2019. That's when Shakman, the Voters Organization, and other plaintiffs moved for the appointment of a special master to monitor the Clerk's compliance with the Decrees. The plaintiffs claimed that the Clerk's hiring practices violated the 1991 Decree and that the Clerk took retaliatory actions against employees in violation of the 1972 Decree.

The Clerk opposed the motion and asked the magistrate judge to vacate both Decrees. After discovery and an evidentiary hearing, the magistrate judge found that the Clerk violated the Decrees, appointed a special master, and rejected the Clerk's request to vacate the Decrees. The Clerk appealed, arguing that the plaintiffs lacked standing, that the case raised nonjusticiable political questions, and that the Clerk's actions didn't violate the Decrees.

The Seventh Circuit disagreed. The court ruled first that the plaintiffs had standing, because at least one member of the Voters Organization was a current employee in the Clerk's office who refused to engage in political patronage and suffered reprisal. The court said next that the case didn't raise a nonjusticiable political question, because "both the legal right and applicable standard here"--free association under Elrod v. Burns--"are evident and judicially manageable." Finally, the court held that the magistrate judge didn't clearly err in concluding that the Clerk's "ongoing violations reflect the precise political patronage the Consent Decrees seek to end."

The court noted, however, that federalism considerations counsel in favor of ending the Decrees now, or very soon:

Our federal structure, including the Article III Case or Controversy requirement, does not contemplate federal courts putting units of state or local government under what amounts to static and permanent consent decrees. Federal injunctions interfere with local control over local decision making, and, in turn, local democracy does not work as our federal constitutional design envisions.

Court Says Plaintiffs Can Sue Ford Where Torts Occurred

Steven D. Schwinn, University of Illinois Chicago School of Law

The Supreme Court ruled this week that Ford had sufficient contacts with states where plaintiffs suffered injuries in Ford vehicles to allow the plaintiffs to sue there. The ruling means that the plaintiffs can pursue their claims against Ford in states where "Ford had systematically served a market . . . for the very vehicles" that caused the injuries, even though the plaintiffs didn't purchase their vehicles in those states, and even though Ford did not manufacture or design them there.

The holding breaks no new ground. But the reasoning might.

The case, Ford Motor Co. v. Montana Eighth Judicial District Court, arose when plaintiffs who were injured in Ford vehicles in Montana and Minnesota sued the carmaker in those states. Ford argued that the state courts lacked personal jurisdiction, however, because the plaintiffs didn't buy the cars in those states, Ford didn't manufacture the cars there, and Ford didn't design the cars there--even though it had many other contacts with those states.

In other words, Ford said that there was no causal link between its behavior in the states and the plaintiffs' injuries.

The Court rejected this approach. In an opinion by Justice Kagan, the Court wrote that "Ford's causation-only approach finds no support in this Court's requirement of a 'connection' between a plaintiff's suit and a defendant's activities." The Court said that this result squares with language from World-Wide Volkswagen that "has appeared and reappeared in many cases since." Justice Alito summarized that language in his concurrence: "If a car manufacturer makes substantial efforts to sell vehicles in States A and B (and other States), and a defect in a vehicle first sold in State A causes injuries in an accident in State B, the manufacturer can be sued in State B."

In getting there, the Court looked to language in past opinions that said that a plaintiff's claims "must arise from or relate to the defendant's contacts" with the forum state. The Court read this as a disjunctive phrase, and said that while the first part ("arise from") requires causation, the second part ("relate to") doesn't. Even if the plaintiffs' claims here might not have "arose from" Ford contacts (in the causal sense), they certainly "related to" those contacts--and that's enough for personal jurisdiction.

Justice Alito and Justice Gorsuch (joined by Justice Thomas) wrote separate concurrences taking issue with that parsing of the phrase. Justice Alito worried that "[r]ecognizing 'relate to' as an independent basis for specific jurisdiction risks needless complications." Instead, he'd "leave the law exactly where it stood before we took these cases." Justice Gorsuch said the Court's approach was "unnecessary" to resolve the case. He'd revisit the modern approach (starting with International Shoe) and look instead to "the Constitution's original meaning." He suggested that for a case like this (with a defendant "nationwide corporation" whose "business is everywhere"), the defendant could be sued anywhere.

D.C. Circuit Says House Committee Minority Can Sue to Get GSA Info

Steven D. Schwinn, University of Illinois Chicago Law School

The D.C. Circuit ruled this week that members of a House committee have standing to sue to enforce their statutory right to obtain information from executive agencies, in this case the General Services Administration.

The ruling means that the plaintiff-House members can pursue their claim to get the information, but it does not say that they'll win. In any event, the case is likely to become moot under President Biden, when the administration seems much more likely to comply with the request. (The ruling is likely to embolden minority Republican House members to ask for information from the Biden Administration.)

The case, Maloney v. Murphy, arose when Democratic members of the House Oversight Committee, then in a minority, sought information from the GSA related to the Agency's lease with a Trump corporation for the Old Post Office. The members invoked 5 U.S.C. Sec. 2954, which authorizes seven members of the House Oversight Committee or five members of the Senate Homeland Security and Governmental Affairs Committee to request and obtain information from any executive agency. The statute functionally allows a minority group of lawmakers on those committees to obtain information from an executive agency, even if the full committee does not seek that same information. 

GSA balked, and the members sued. The district court granted the GSA's motion to dismiss for lack of standing, but the D.C. Circuit reversed.

The court said that the plaintiffs suffered a cognizable informational injury--that the GSA deprived them of information to which they were entitled, and that their lawsuit would redress that injury. 

The court went on to say that the injury was "personal," and not "institutional," and therefore the individual lawmakers had standing. (A personal injury is a direct harm to a person, or in this case a lawmaker; the harmed individual, even if a lawmaker, has standing to sue. An institutional injury, in contract, is a generalized harm to the institution, in this case the Committee; the Committee would have standing, but not an individual lawmaker.) The court explained:

The Requestors do not assert an injury to institutional powers of functions that "damages all Members of Congress and both Houses of Congress equally." The injury they claim--the denial of information to which they as individual legislators are statutorily entitled--befell them and only them. Section 2954 vested them specifically and particularly with the right to obtain information. The 34 other members of the Committee who never sought the information suffered no deprivation when it was withheld. Neither did the nearly 400 other Members of the House who were not on the Committee suffer any informational injury. Nor was the House (or Senate) itself harmed because the statutory right does not belong to those institutions.

Judge Ginsburg dissented:

The Plaintiff-Members here allege harm to the House rather than to themselves personally. Their theory of injury is that the General Services Administration (GSA), by refusing their request for certain documents, hindered their efforts to oversee the Executive and potentially to pass remedial legislation. The Complaint is clear and consistent on this point: The Plaintiff-Members were harmed through the "impedance of the oversight and legislative responsibilities that have been delegated to them by Congress . . . ."

Court Rebuffs Census Challenge

Steven D. Schwinn, University of Illinois Chicago Law School

The Supreme Court ruled today that the case challenging President Trump's plan to report reapportionment numbers to Congress without accounting for unauthorized aliens was not ripe for judicial review and that the plaintiffs lacked standing to challenge the plan. The Court said nothing about the merits of the case, although its practical effect allows the President to move forward.

The ruling means that the Commerce Secretary can go ahead and report the numbers of unauthorized aliens along with a total head-count to the President, and that the President can go ahead and report apportionment numbers to Congress based on total numbers minus unauthorized aliens.

This is unprecedented. Apportionment has never discounted for unauthorized aliens.

At the same time, it's not at all clear as a practical matter if or how the President will be able to implement this. And even if he does, the plaintiffs can come back and sue later, when they may meet a more friendly Court. (Justices Kavanaugh and Barrett seemed sympathetic to the plaintiffs' arguments during oral argument on the case. They could join Justices Breyer, Sotomayor, and Kagan to rule against the President.)

The case arose when President Trump issued a memo this summer directing the Secretary of Commerce to report two sets of numbers to the President: (1) a raw census total head count; and (2) the number of unauthorized aliens in the country. President Trump wrote that he'd certify apportionment numbers to Congress based on the total head count minus the number of unauthorized aliens in the country. 

This would cause some states (with large populations of unauthorized aliens) to lose representation in Congress. It could also allow some states and local jurisdictions to lose vast amounts of federal funds, which are tied to census numbers. 

Some of those states sued, arguing that President Trump's memo violated the Constitution and federal law, both of which mandate apportionment based on "the whole number of persons in each State, excluding Indians not taxed." 

The Court ruled that the plaintiffs lacked standing, and that the case wasn't ripe for judicial review. In an unsigned opinion, six justices ruled that the plaintiffs' claimed harms--loss of representation and federal funds--weren't certain enough to justify judicial intervention. "At present, this case is riddled with contingencies and speculation that impede judicial review." The Court noted that the President's memo was contingent ("to the extent practicable," for example), and that it's not even clear that the Secretary can compile the data by the statutory deadline. Moreover, it noted that federal funds may not even be affected: "According to the Government, federal funds are tied to data derived from the census, but not necessarily to the apportionment counts addressed by the memorandum."

Justice Breyer wrote a sharp and lengthy dissent, joined by Justices Sotomayor and Kagan. He argued that the plaintiffs had standing and that the case was ripe for review under settled Court precedent, and that the President's memo violated the Constitution and federal law.

SCOTUS Rebuffs Texas's Challenge to Battleground State Election Results

Steven D. Schwinn, University of Illinois Chicago Law School

The Supreme Court on Friday dismissed Texas's challenge to election results in Georgia, Pennsylvania, Michigan, and Wisconsin for lack of standing. The brief order simply read,

The State of Texas's motion for leave to file a bill of complaint is denied for lack of standing under Article III of the Constitution. Texas has not demonstrated a judicially cognizable interest in the manner in which another State conducts its elections. All other pending motions are dismissed as moot.

Texas argued that it asserted two harms sufficient to satisfy standing: (1) its citizens were harmed in their votes for president by other states' failures to comply with the Elections Clause; and (2) Texas itself was harmed in its role (as a state) in the Senate, where the vice president could break a tie.

The Court's ruling rejects those theories. It did not say anything about the Elections Clause, however. 

Justice Alito filed a statement, joined by Justice Thomas, reiterating their view that the Court lacked "discretion to deny the filing of a bill of complaint in a case that falls within our original jurisdiction."

The ruling ends this challenge. But Trump supporters have already indicated that they'll seek to file similar challenges on behalf of individual voters in these states.

The Court's full docket, with the parties' filings and the many amicus filings, is here.

SCOTUS Says No Standing to Challenge State Political Balancing Requirements

Steven D. Schwinn, University of Illinois Chicago Law School

The Supreme Court ruled this week that a Delaware attorney lacked standing to challenge the state's political balancing requirements for seats on its courts. The ruling means that the Court didn't address the underlying merits question, whether the balancing requirements violate the First Amendment. It also didn't break any significant new ground on standing.

The case, Carney v. Adams, involved Delaware's two political balancing requirements for its courts, the "bare majority" requirement and the "major party" requirement. The bare majority requirement says that no more than a bare majority of judges on any of the state's five major courts "shall be of the same political party." The major party requirement says that judges not in the majority on three of the state's courts "shall be of the other major political party."

Delaware attorney James Adams sued, arguing that the provisions violated his First Amendment right to free association. There was just one problem: Adams failed to show that he was harmed by the two requirements. He hadn't applied for a judgeship and been rejected, and he hadn't even stated a determinate intent to apply for a particular judgeship for which he wouldn't qualify; he only said that he'd like to apply for a judgeship at some undefined point in the future--and that the political balancing requirements would prevent him from getting the job. So the Court ruled that he lacked standing.

Justice Breyer wrote for a unanimous Court. Justice Breyer concluded that Adams failed to show that he was "able and ready" to apply for a judgeship based on three considerations:

First, as we have laid out Adams' words "I would apply . . . " stand alone without any actual past injury, without reference to an anticipated timeframe, without prior judgeship applications, without prior relevant conversations, without efforts to determine likely openings, without other preparations or investigations, and without any other supporting evidence.

Second, the context offers Adams no support. It suggests an abstract, generalized grievance, not an actual desire to become a judge. . . .

Third, if we were to hold that Adams' few words of general intent--without more and against all contrary evidence--were sufficient here to show an "injury in fact," we would significantly weaken the longstanding legal doctrine preventing this Court from providing advisory opinions . . . .

Justice Breyer quoted Justice Powell in United States v. Richardson, reminding us why standing is an important separation-of-powers concern:

[Justice Powell] found it "inescapable" that to find standing based upon [a general interest, common to all members of the public] "would significantly alter the allocation of power at the national level, with a shift away from a democratic form of government." He added that "[w]e should be ever mindful of the contradictions that would arise if a democracy were to permit general oversight of the elected branches of government by a nonrepresentative, and in large measure insulated, judicial branch.

Justice Sotomayor concurred. She wrote to point out that the two requirements were very different and might very well require two different kinds of analysis, if and when this issue comes back to the courts. She also urged lower courts to certify the question of the severability of the two provisions to the state courts.

SCOTUS Says no Standing for Retirement-Plan Participants to Sue for Mismanagement

Steven D. Schwinn, UIC John Marshall Law School

A sharply divided Supreme Court ruled today in Thole v. U.S. Bank that retirement-plan participants can't sue their former employer for mismanagement of the plan, because they hadn't demonstrated sufficient direct and concrete harm.

The ruling deals a sharp blow to defined-benefit plan participants who seek to sue for plan mismanagement. Under the ruling, those participants have to wait until their actual benefits drop, or close to it. And even so, the Court's ruling may give employers an out. At the same time, the ruling shields employers from liability unless and until their mismanagement is so bad that it actually or imminently results in lowered benefits.

While the plaintiffs sued under the individual cause of action in ERISA, the Court's ruling is based on Article III standing. This means that Congress can't change the law to create more permissive standing.

The case arose when two retirees of U.S. Bank sued that Bank and others for mismanaging their retirement-plan assets. The plaintiffs sued under ERISA's individual cause of action.

The Court ruled that the plaintiffs lacked Article III standing because, in short, they didn't suffer a harm. Justice Kavanaugh wrote for the five conservatives that the plaintiffs' monthly defined benefits didn't drop, or wouldn't imminently drop, based on the mismanagement, and any court ruling wouldn't affect their monthly benefits under the plan.

The Court also noted that the plaintiffs' benefits wouldn't drop even if the retirement plan failed, because the Pension Benefit Guarantee Corporation backstops failed retirement plans. This raises the question whether the plaintiffs would have standing even if the plan's failing led to a reduction in the benefits that the plan pays out (because the plaintiffs, after all, would theoretically continue to receive the full measure of their defined-benefit plan, even if from the PBGC, and not the plan).

The ruling means that the plaintiffs have to wait to sue until the plan's failure actually or imminently results in a reduction in their own benefits. And even then, the Court might've written in an out for the employer by noting that the PBGC backstops failing plans.

Justice Sotomayor, joined by the three other progressives, dissented. She argued that the plaintiffs have an interest in their plan's integrity, just as private trust beneficiaries have an interest in protecting their trust; that breach of a fiduciary duty is a cognizable injury, even if it doesn't result in financial harm or increased risk of nonpayment; and that the plaintiffs have associational standing to sue on behalf of the plan.

She concluded:

It is hard to overstate the harmful consequences of the Court's conclusion. . . . After today's decision, about 35 million people with defined-benefits plans will be vulnerable to fiduciary misconduct. The Court's reasoning allows fiduciaries to misuse pension funds so long as the employer has a strong enough balance sheet during (or, as alleged here, because of) the misbehavior. Indeed, the Court holds that the Constitution forbids retirees to remedy or prevent fiduciary breaches in federal court until their retirement plan or employer is on the brink of financial ruin. This is a remarkable result, and not only because this case is bookended by two financial crises.

High Court Says Ninth Circuit Impermissibly Ruled Beyond Issues in Case

Steven D. Schwinn, UIC John Marshall Law School

The Supreme Court ruled today in United States v. Sineneng-Smith that the Ninth Circuit overstepped when it invited amici to brief, and then ultimately ruled upon, an issue not raised by the parties. Justice Ginsburg concluded for a unanimous court, "[A] court is not hidebound by the precise arguments of counsel, but the Ninth Circuit's radical transformation of this case goes well beyond the pale."

The case arose when Evenlyn Sineneng-Smith, an immigration consultant, charged multiple clients over $6,000 each for filing applications for a labor certification program. The problem: the applications missed the deadline, and Sineneng-Smith knew it.

She was indicted for violations of 8 U.S.C. Sec. 1324, which makes it a felony to "encourag[e] or induc[e] an alien to come to, enter, or reside in the United States, knowing or in reckless disregard of the fact that such coming to, entry, or residence is or will be in violation of law."

Sineneng-Smith argued that the provisions didn't cover her conduct and, if they did, that they violated the Petition and Free Speech Clauses of the First Amendment. The district court rejected those arguments and convicted her.

Sineneng-Smith appealed, raising the same claims. But the Ninth Circuit invited amici to brief and argue that Section 1324 was impermissibly overbroad (among other things), a claim that Sineneng-Smith hadn't yet raised. The Ninth Circuit ultimately ruled that Section 1324 was overbroad in violation of the First Amendment.

The Supreme Court reversed. The Court ruled that the Ninth Circuit reached out for this issue, in violation of the principle that courts rely on the parties to frame the issues. The Court vacated the judgment and remanded "for reconsideration shorn of the overbreadth inquiry interjected by the appellate panel and bearing a fair resemblance to the case shaped by the parties."

Justice Thomas concurred, but wrote that he would consider revisiting the overbreadth doctrine in an appropriate case.

Eleventh Circuit Says Plaintiffs Lack Standing to Challenge Florida's Ballot Sequence Law

Steven D. Schwinn, UIC John Marshall Law School

The Eleventh Circuit ruled this week that a group of Florida voters and organizations lacked standing to challenge the state's law that specifies the order of candidates on its ballots. The ruling dismisses the case and leaves the state law in place.

The plaintiffs in the case--Democratic state voters and organizations--challenged Florida's law that puts the candidate of the party that won the last gubernatorial election in the state at the top of the list of candidates for each office. They claimed that this gives up to a five percent advantage to that party (now Republicans), on average, in elections across the state, and that this violated their right to vote. The district court agreed.

But the Eleventh Circuit ruled that the plaintiffs lacked standing. The court held that the plaintiffs couldn't show an injury in fact that flowed from the defendant Secretary of State's actions and that could be redressed by a ruling of the court.

As to injury, the court held that the individual voters couldn't show a direct injury to their right to vote, and that their claims of vote dilution were insufficient to establish standing (because they relied on the statewide average vote dilution, not their own particular dilution). The court held that the organizations lacked associational standing for the same reasons, and that they lacked organizational standing (on their own) under a diversion-of-resources theory. According to the court, that's because they failed to show what activities they'd divert their resources from in order to deal with the ballot-sequence law.

As to causation and redressability, the court said that the Secretary didn't have authority under state law to enforce the ballot-sequence provision--the county supervisors do, and they're not part of the case--and so the plaintiffs couldn't show that the Secretary's actions caused any injury, or that judicial relief aimed at the Secretary would redress any injury.

Judge William Pryor concurred, arguing that the case also raised a non-justiciable political question (because the court didn't have "discernable and manageable standards" to work it out).

Judge Jill Pryor agreed that the plaintiffs failed to demonstrate an injury. But she argued that the question of the Secretary's authority under state law was much more complicated than the majority made it out to be, and she therefore wouldn't have ruled on causation and redressability. Judge Pryor argued that the court, by ruling on those points when it wasn't necessary, "creates a circuit split on the connection a state official must have with a challenged state statute for a plaintiff to satisfy traceability and redressability."

Fourth Circuit Allows Census Undercount Claim to Move Forward

Steven D. Schwinn, UIC John Marshall Law School

The Fourth Circuit ruled in NAACP v. Bureau of the Census that a lower court erred in dismissing the plaintiffs' claims that the "methods and means" that the Census Bureau adopted for the 2020 Census would under-count African Americans. The court ordered the district court to allow the plaintiffs to file an amended complaint. The ruling said nothing about the merits.

The case involves the NAACP's claims under the Enumeration Clause and the Administrative Procedure Act that the Census Bureau's planned methodology for the 2020 Census will disproportionately undercount African Americans. The plaintiffs filed their initial complaint alleging certain deficiencies in the Bureau's approach and methodology. The district court dismissed the Enumeration Clause claim as unripe; it dismissed the APA claim on jurisdictional grounds. Just days after the district court ruled, the Bureau issued its "Operational Plan" for the 2020 Census. The court granted the plaintiffs' motion to amend their complaint as to the APA, but denied it as to the Enumeration Clause, holding that this claim was still unripe. (The court held that the plaintiffs' claims wouldn't become ripe until after the 2020 Census.) The court then dismissed the case.

The Fourth Circuit reversed as to the Enumeration Clause. It held that "at the latest" the case was ripe "when the defendants announced that the Operational Plan was final and the plaintiffs sought leave to file an amended complaint." Moreover, it said that "delayed adjudication would result in hardship to the plaintiffs."

The court remanded the case with instructions to allow the plaintiffs to file an amended complaint as to the Enumeration Clause claim (but not as to the APA). It noted, however, that "we do not express any view regarding" the merits.

District Court Holds Military Commission Judge, Prosecutors, Marshall Immune from Suit by Former Officer

Steven D. Schwinn, UIC John Marshall Law School

Judge James E. Boasberg (D.D.C.) dismissed portions of a case brought by a former Guantanamo military commission officer against a military commission judge and prosecutors and U.S. marshals for issuing and aggressively enforcing a subpoena against him. At the same time, the court transferred the plaintiff's Federal Tort Claims Act claim arising out of the same events to the District of Massachusetts.

The ruling means that Gill's claims against the individuals is dismissed, but his claim against the government will proceed in Massachusetts.

The case, Gill v. United States, arose when the chief prosecutor at Guantanamo Bay issued a subpoena to Stephen Gill, a former legal advisor on Abd Al-Rahim Hussein Muhammed Al-Nashiri's military commission case and current civilian, to testify in that case. Gill sought relief under military rules, but he received no response. Upon the request of the prosecutors in the case, military commission judge Colonel Vincent Spath then issued a "warrant of attachment" compelling Gill's testimony and commanding U.S. marshals to procure Gill's presence in Virginia to testify remotely.

Marshals then stormed Gill's home in Massachusetts, arrested and shackled him, searched his home, and forcibly transported him to Virginia. 

Gill filed a claim with DOJ under the FTCA. DOJ didn't respond, so he sued. He also sued Spath, the prosecutors, and the marshals under Bivens, arguing that they violated his Fourth Amendment rights.

The district court dismissed Gill's Bivens claims, holding that the judge, prosecutors, and marshals enjoyed immunity. As to the judge, the court held that Spath served in a quasi-judicial role, and thus enjoyed absolute immunity. The court rejected Gill's argument that Spath issued the warrant in "complete absence of all jurisdiction" based on the D.C. Circuit's decision to vacate every single one of Spath's orders between November 2015 and April 2019 because of a conflict of interest. The court ruled that "even if Spath exceeded his grant of judicial authority, he did not act in the clear absence of jurisdiction." As to the prosecutors, the court held that they, too, were entitled to absolute immunity, because they were acting in their advocacy, not investigative or administrative, roles.

In any event, the court held further that all defendants were entitled to qualified immunity, because they didn't violate "clearly established" Fourth Amendment rights.

The court transferred Gill's FTCA claims and request for declaratory relief to the District of Massachusetts.

Chief Justice Stays D.C. Circuit Mandate to Release Trump Tax Records

Steven D. Schwinn, University of Illinois Chicago John Marshall Law School

Chief Justice John G. Roberts, Jr., issued an order today staying the mandate of the D.C. Circuit to Mazars to release President Trump's tax records.

Recall that the D.C. Circuit last week denied en banc review of a three-judge panel ruling that the House Committee on Oversight and Reform had authority to issue its subpoena for President Trump's financial records to his accounting firm, Mazars.

Chief Justice Roberts's brief order simply stayed the D.C. Circuit ruling "pending receipt of a response, due on or before Thursday, November 21, 2019, by 3 p.m. ET, and further order of the undersigned or of the Court." (The order is not a ruling on the merits, and does not foretell what the Court might do.) So we'll get more information on Thursday . . . .

Ninth Circuit Bars Enforcement of ACA Contraception Exemption Rules

Steven D. Schwinn, University of Illinois John Marshall Law School

The Ninth Circuit this week affirmed a district court's preliminary injunction against agency rules that categorically exempt certain organizations from the Affordable Care Act's contraception requirement. 

The ruling is a blow to the administration's efforts to side-step the ACA's contraception requirements for religious groups. We previously posted on the case here.

The case, California v. U.S. Dep't of Health & Human Services, tests HHS's final rules that exempt certain entities from the ACA's contraception-coverage requirement. The court upheld a district court ruling that the final rules likely violated the Administrative Procedure Act.

The ACA provides that group health plans and insurance issuers "shall, at a minimum provide coverage for and shall not impose any cost sharing requirements for . . . with respect to women, such additional preventive care and screenings . . . as provided for in the comprehensive guidelines supported by the Health Resources and Services Administration . . . ." HHS previously exempted group health plans of certain religious employers, like churches. It also had previously provided for an accommodation for certain nonprofits that had a religious objection: those groups merely had to tell HHS that they objected (then HHS would inform the organization's insurer that it had to provide contraceptive care for the organization's employees without any further involvement of the organization). HHS later also exempted certainly closely-held for-profit corporations (after Hobby Lobby) and modified the exemption-trigger to require objecting organizations merely to notify HHS in writing of its objections (after Wheaton College).

But the Trump Administration went a step farther. It issued rules that categorically exempt entities "with sincerely held religious beliefs objecting to contraception or sterilization coverage" and "organizations with sincerely held moral convictions concerning contraceptive coverage." The rules meant that organizations that might previously have sought and received a waiver would be categorically exempt on their own say-so.

The Ninth Circuit ruled that these rules likely violated the APA. In short, the court said that HHS didn't have authority under the ACA to create categorical exemptions:

The statute grants HRSA the limited authority to determine which, among the different types of preventative care, are to be covered. But nothing in the statute permits the agencies to determine exemptions from the requirement. In other words, the statute delegates to HRSA the discretion to determine which types of preventative care are covered, but the statute does not delegate to HRSA or any other agency the discretion to exempt who must meet the obligation.

The court rejected the government's claim that it issued the rules to harmonize the ACA with the Religious Freedom Restoration Act. The court questioned whether the RFRA even gave the government the authority to determine a violation and then act against federal law to effect it. And it went on to say that the accommodation didn't violate the RFRA, anyway. (Recall that the Court dodged this issue in Zubick.) 

The dissent argued that the court lacked jurisdiction in light of a nationwide injunction issued by the Eastern District of Pennsylvania. The court responded at length, but acknowledged that it's an open question whether a federal court's nationwide injunction strips other federal courts of jurisdiction in a more limited case.

 

White House Blasts Impeachment Inquiry, Says it Won't Cooperate

Steven D. Schwinn, University of Illinois Chicago John Marshall Law School

White House Counsel Pat Cipollone sent a scathing letter today to House leadership blasting the impeachment inquiry and stating that the White House won't cooperate. Given White House intransigence so far, it's not clear that the letter will really change anything on the ground.

Cipollone cited two flaws: the process lacks due process protections, and the House has no "legitimate basis" for the inquiry.

As to due process, Cipollone claims that an impeachment inquiry requires due process, and that the House process falls short:

To comply with the Constitution's demands, appropriate procedures would include--at a minimum--the right to see all evidence, to present evidence, to call witnesses, to have counsel present at all hearings, to cross-examine all witnesses, to make objections relating to the examination of witnesses or the admissibility of testimony and evidence, and to respond to evidence and testimony. Likewise, the Committees must provide for the disclosure of all evidence favorable to the President and all evidence bearing on the credibility of witnesses called to testify in the inquiry. The Committees' current procedures provide none of these basic constitutional rights.

Cipollone also complained that the committees' ranking members lack subpoena power, and that "the Committees have also resorted to threats and intimidation against potential Executive Branch witnesses."

The impeachment process, of course, is a nonjusticiable political question under Nixon v. United States. So we don't have the Supreme Court's say-so as to what, if any, measures of due process are required. In the case that Cipollone cites as support for his claim that impeachment requires due process, Judge Hasting's impeachment, Hastings raised similar due process complaints about his trial in the Senate. But in a ruling not cited by Cipollone, the district court ultimately dismissed Hasting's complaint as raising a nonjusticiable political question under Nixon, and therefore did not touch on any process that might be due in an impeachment.

Cipollone's claims don't come in the context of a court case, though, so the political question doctrine doesn't foreclose them. Instead, they may cleverly put House Democrats in an awkward spot. The only practical way that House Democrats can get White House cooperation is to go to court; but if they seek to enforce a subpoena issued in an impeachment inquiry in court, the White House will surely claim that the case is a nonjusticiable political question under Nixon. Regardless of merits of that claim, unless the House can get the courts to enforce their subpoenas, the House will have to base its articles of impeachment only on evidence that it can obtain independent of White House cooperation, and, of course, obstruction. This may make it even more likely (if that's possible) that the House will impeach, but it also may make it even less likely (if that's possible) that the Senate will convict.

As to the lack of a "legitimate basis" for the inquiry, Cipollone argues that President Trump's call to President Zelenskyy "was completely appropriate," that "the President did nothing wrong," and therefore that "there is no basis for an impeachment inquiry." This echoes the familiar (and tenuous) constitutional claim that we've heard from the White House in nearly every congressional investigation--that the House lacks a "legitimate legislative purpose." It also begs the question: the whole purpose of an impeachment inquiry, it seems, is to get more evidence to discover whether there's a basis for going forward with impeachment. The House needs information from the executive branch to help it make that determination.

Cipollone's letter is a stunning rebuke. But in the end, it's not clear that it's much of a game-changer, only because the White House hasn't much cooperated so far, anyway.

District Court Tosses Trump Suit to Protect Taxes

Steven D. Schwinn, University of Illinois Chicago John Marshall Law School

Judge Victor Marrero (S.D.N.Y.) today dismissed President Trump's lawsuit that sought to halt a state grand jury subpoena issued to Mazars USA for Trump organization financial documents, including the President's tax returns. We posted most recently here.

The ruling deals a blow to President Trump's efforts to protect his tax returns from disclosure, and to halt any state criminal process against him. But it may be temporary: the Second Circuit immediately stayed the ruling pending expedited review; and whatever the Second Circuit says, this case seems destined for the Supreme Court.

The district court ruled that President Trump's suit was barred by Younger abstention, and that his constitutional claim likely failed on the merits.

As to Younger abstention, which requires federal courts to abstain from intervening in pending state court proceedings under certain circumstances, the court said that the grand jury subpoena was part of a pending state criminal proceeding (despite a circuit split on the question), that the state proceeding implicates important state interests, and that the state proceeding affords President Trump plenty of opportunities to raise his constitutional claims. The court rejected the President's claims that the state process was in bad faith or merely designed to harass him, and that the case raised extraordinary circumstances.

As to the underlying merits, which the court addressed "so as to obviate a remand" on President Trump's motion for a preliminary injunction if the Second Circuit overrules the abstention holding, the court flatly rejected the President's claim of absolute presidential immunity from all state criminal processes. The court said that it "cannot square a vision of presidential immunity that would place the President above the law with the text of the Constitution, the historical record, the relevant case law, or even the DOJ Memos on which the President relies most heavily for support." The court, citing Clinton v. Jones, said that the Supreme Court would likely reject the President's absolute, categorical approach to immunity in favor of a functional approach that "take[s] account of various circumstances concerning the appropriateness of a claim of presidential immunity from judicial process relating to a criminal proceeding" and to balance the competing interests in working out the immunity question.

The case now goes to the Second Circuit on an expedited basis. Again: the Second Circuit stayed the district court's ruling, which means that President Trump's federal case challenging the state subpoena is still alive. Whatever happens at the Second Circuit, this case will almost surely go to the Supreme Court.

New York DA Pushes Back Against Trump's Claim of Absolute Immunity

Steven D. Schwinn, University of Illinois Chicago John Marshall Law School

New York DA Cyrus Vance, Jr., yesterday filed a motion to dismiss President Trump's federal lawsuit that seeks to shut down the state grand jury proceeding.

Recall that the state grand jury issued a subpoena to Mazurs USA for financial and tax records of a number of New York entities and individuals, including President Trump. President Trump then sued in federal court to halt the state process, arguing that he is absolutely immune from any criminal process. (His argument wasn't limited to just state criminal process or any criminal prosecution; instead, he argued that he is absolutely immune from any criminal process.)

Vance argues that 28 U.S.C. sec. 2283 and Younger abstention compel the federal court to dismiss the case. Section 2283 provides that "[a] court of the United States may not grant an injunction to stay proceedings in a State court except as expressly authorized by Act of Congress, or where necessary in aid of its jurisdiction, or to protect or effectuate its judgments." Similarly, Younger abstention requires a federal court to abstain from interfering in certain state-court proceedings.

Vance argues that the federal court should abstain from ruling on President Trump's constitutional claims until the state courts have a chance to do so. He says that there's no "special circumstances suggesting bad faith, harassment or irreparable injury that is both serious and immediate" that would justify an exception to the general abstention principle.

Moreover, Vance argues that President Trump failed to show irreparable harm and is wrong on the merits. As to harm, Vance says that subpoenaed records would be destroyed if the courts later rule the Mazurs subpoena invalid, and that the President's claims that he'd be distracted by the state criminal process is belied by the President's handling of other criminal processes. As to the merits--the President's sweeping claim of absolute immunity from any criminal process--Vance writes, "As the President's own papers make plain, no authority exists to support such a sweeping claim of immunity, which makes a showing of likelihood of success on the merits impossible."

Second Circuit Says Emoluments Suit Against Trump Can Move Forward

Steven D. Schwinn, UIC John Marshall Law School

The Second Circuit ruled today in CREW v. Trump that a case alleging that the President violated the Foreign and Domestic Emoluments Clauses can move forward. The ruling rejects the President's arguments that the plaintiffs lack standing and that they fall outside the zones of interests of the Emoluments Clauses. It also rejects the district court's holdings that the case isn't ripe, and that it raises a nonjusticiable political question.

The ruling means that the case can go forward. It says nothing on the merits--whether President Trump actually violated the Emoluments Clauses. Still, it's a significant victory for the plaintiffs. It also splits with the Fourth Circuit, which dismissed an emoluments case in July for lack of standing.

The plaintiffs in the case, Eric Goode, a restauranteur and hotelier, and the Restaurant Opportunities Center United ("ROC"), a non-partisan, member-based organization of restaurants and restaurant workers, alleged that President Trump's properties siphon off business from the plaintiffs' operations when foreign and domestic government entities choose the President's properties over the plaintiffs' in order to enrich the President and gain his favor--all in violation of the Foreign and Domestic Emoluments Clauses. In particular, the plaintiffs allege (1) that they compete with the President's properties, (2) that the President implicitly solicits the patronage of government officials and acknowledged that, in making decisions, he favors governments that patronize his businesses, and (3) that governments have taken note of this, and been influenced by it, in deciding which properties to patronize.

The district court dismissed the case, holding that the plaintiffs lacked standing, that they fall outside the zone of interests of the Emoluments Clauses, that their claims aren't ripe, and that the case raises nonjusticiable political questions.

The Second Circuit reversed. As to standing, the court ruled that the plaintiffs sufficiently pleaded injury, causation, and redressability under competitor-standing theory: "[t]he complaint, supported by expert declarations, alleges that . . . unlawful market conduct skew has caused Plaintiffs economic harm in the form of lost patronage from government entities, and that such harm will continue in the future"; "[t]he complaint adequately pleads a competitive injury of lost patronage directly traceable to the fact that the President's allegedly illegal conduct induces government patrons of the hospitality industry . . . to patronize Trump establishments in favor to Plaintiffs' establishments"; and "[b]ecause Plaintiffs have successfully alleged a plausible likelihood that President Trump's conduct caused their injuries, and the injury is ongoing, it logically follows that [injunctive relief] would redress their injury--at least to some extent, which is all that Article III requires."

As to the zone of interests, the court first held that the Supreme Court recently ruled that zone of interests is not a test of Article III standing. But the court said that in any event, the plaintiffs fell within it: "Without exception, the Court has held that a plaintiff who sues to enforce a law that limits the activity of a competitor satisfies the zone of interests test even though the limiting law was not motivated by an intention to protect entities such as plaintiffs from competition."

As to the political question issue (which the President did not argue at the Second Circuit), the court said that the district court erred in holding that under the Emoluments Clauses "Congress is the appropriate body to determine whether, and to what extent, [the President's] conduct unlawfully infringes on that power." Instead, the court held that under the plain language of the Emoluments Clauses, if Congress doesn't consent to an emolument, it's a violation. And it's the role of the courts to judge just such violations.

As to ripeness (which the President also did not argue), the court said that the district court erred in relying on the prospect of future congressional action and on the reasoning of Justice Powell's concurrence in Goldwater v. Carter. The court held that this case is distinguishable: Goldwater involved an inter-branch dispute over inter-branch powers; but this case simply involves an allegation that the President's private conduct is illegal. "There is no claim on the part of the Congress, or any of its members, that the President's private conduct of his business affairs usurps power allocated to Congress by the Constitution."

Judge Walker dissented, arguing that the plaintiffs lacked standing, consistent with the Fourth Circuit's approach.