Wednesday, January 15, 2020

District Court Halts Trump Order Allowing Cities, States to Veto Refugee Resettlement

Judge Peter J. Messitte (D. Md.) entered a preliminary injunction against enforcement of President Trump's executive order that effectively authorized state and local governments to veto federal resettlement of refugees. The ruling, while preliminary, deals a sharp blow to President Trump's effort to empower state and local governments to restrict refugee resettlement. At the same time, it's a significant victory for refugees and the refugee-rights community.

President Trump's EO provides that the federal government "should resettle refugees only in those jurisdictions in which both the State and local governments have consented to receive refugees under the Department of State's Reception and Placement Program." The EO effectively allowed state and local governments to veto resettlement.

The court ruled that this likely violated 8 U.S.C. Sec. 1522, which sets out the "conditions and considerations" for refugee resettlement and assistance programs:

[The statute] speaks in terms of "consulting" and "consultation" between and among the Resettlement Agencies and the State and Local Governments; establishes that the Resettlement Agencies and State and Local Governments must regularly "meet" to "plan and coordinate"; even acknowledges that "maximum consideration" be given to "recommendations" States make to the Federal Government. The challenged Order definitely appears to undermine this arrangement. As to States or Local Governments that refuse to give written consents, there will be no consultation, no meetings with the Resettlement Agencies, not just "recommendations." Those State and Local Governments can simply give or withhold their written consents to the resettlement of refugees within their borders.

The court also held that the EO "appears to run counter to the Refugee Act's stated purpose" and the congressional intent. (A report on the bill from the House Judiciary Committee couldn't have been clearer: "The Committee emphasizes that these requirements [of the act] are not intended to give States and localities any veto power over refugee placement decisions, but rather to ensure their input into the process and to improve their resettlement planning capacity.")

The court also held that individual government officials' enforcement of the EO was likely arbitrary and capricious, and thus invalid, under the Administrative Procedure Act.

The ruling preliminarily prohibits enforcement of the EO. But it also telegraphs the court's conclusion on the merits: the EO is unlawful.

January 15, 2020 in Cases and Case Materials, Congressional Authority, Courts and Judging, Executive Authority, Federalism, News, Opinion Analysis, Separation of Powers | Permalink | Comments (0)

Wednesday, January 8, 2020

Eleventh Circuit Rebuffs Eleventh Amendment Immunity Defense in ADA Claim

The Eleventh Circuit ruled in National Association of the Deaf v. Florida that Congress validly abrogated state sovereign immunity in enacting the Americans with Disabilities Act, insofar as it requires the state to provide captioning for live and archived videos of Florida legislative proceedings. The ruling means that the plaintiffs' case can move forward on the merits.

The case arose when plaintiffs challenged the Florida legislature's practice of live-streaming and archiving videos of legislative sessions without captioning. The plaintiffs argued that this violated Title II of the ADA and the Rehab Act (more on that below). The state moved to dismiss, arguing that it was immune under the Eleventh Amendment and that Congress did not validly abrogate immunity in enacting the ADA.

The Eleventh Circuit disagreed. The court ruled that Congress, in enacting the ADA, sought to protect the fundamental right to participate in the democratic process, and that the state denied that very right to the plaintiffs:

Here, deaf citizens are being denied the opportunity to monitor the legislative actions of their representatives because Defendants have refused to provide captioning for legislative proceedings. Without access to information about the legislative actions of their representatives, deaf citizens cannot adequately "petition the Government for a redress of greivances," because they cannot get the information necessary to hold their elected officials accountable for legislative acts. This type of participation in the political process goes to the very core of the political system embodied in our Constitution.

The court went on to say that Congress also validly abrogated immunity even if only a non-fundamental right were at stake. 

The court said that Congress enacted Title II against a backdrop of a "pattern of unequal treatment in the administration of a wide range of public services, programs, and activities," and that Title II was an "appropriate response" to this pattern:

The burden of adding captioning to legislative videos--which are already provided to the public--removes a complete barrier to this information for a subset of citizens with a remedy we expect can be accomplished with limited cost and effort. In this way, the remedy is a proportionate and "reasonable modification" of a service that is already provided, and it does not change the "nature" of the service whatsoever. Finally, if the cost or effort should prove to be prohibitively burdensome, the Defendants have available the affirmative defenses in Title II.

The court also held that the plaintiffs could pursue injunctive relief under Ex Parte Young for the ongoing violation of Title II. Finally, it remanded for further proceedings on whether state legislative defendants received federal financial funds, and were therefore on the hook for Rehab Act violations (as a federal conditioned spending program--federal funds in exchange for a state's agreement not to discriminate by disability). 

January 8, 2020 in Cases and Case Materials, Congressional Authority, Eleventh Amendment, Federalism, News, Opinion Analysis | Permalink | Comments (0)

Wednesday, January 1, 2020

Daily Read: Chief Justice's Year-End Report on the Judiciary

For his 2019 Year-End Report on the Federal Judiciary, Chief Justice Roberts chose to include in his brief introductory remarks some words about democracy:

It is sadly ironic that John Jay’s efforts to educate his fellow citizens about the Framers’ plan of government fell victim to a rock thrown by a rioter motivated by a rumor. Happily, Hamilton, Madison, and Jay ultimately succeeded in convincing the public of the virtues of the principles embodied in the Constitution. Those principles leave no place for mob violence. But in the ensuing years, we have come to take democracy for granted, and civic education has fallen by the wayside. In our age, when social media can instantly spread rumor and false information on a grand scale, the public’s need to understand our government, and the protections it provides, is ever more vital. The judiciary has an important role to play in civic education, and I am pleased to report that the judges and staff of our federal courts are taking up the challenge.

[emphasis added]. The emphasized bolded language, seeming to blame the population of the United States for taking democracy for granted and social media for spreading rumors did not sit well with some commentators who argued that Roberts should consider his own contributions to undermining democracy:  Shelby County (regarding voting rights);  Rucho (decided in June of this year holding partisan gerrymandering is a political question not suitable for the federal courts);   McCutcheon (finding campaign finance regulations unconstitutional).  For others, Roberts's language regarding civic education is welcome and demonstrates his recognition of the divides in the nation.

Noticeably absent from Roberts's remarks was any reference to the impeachment trial which looms in the Senate over which he will preside.  Also absent was any update on the sexual misconduct claims against members of the judiciary which he mentioned in last year's report.

January 1, 2020 in Campaign Finance, Courts and Judging, Elections and Voting, First Amendment, Fourteenth Amendment, News, Political Question Doctrine | Permalink | Comments (0)

District Court Tosses Kupperman's Suit Over Congressional Subpoena, Absolute Privilege

Judge Richard Leon (D.D.C.) this week tossed former Deputy National Security Advisor and Acting National Security Advisor Charles Kupperman's lawsuit asking the court to determine which prevailed: a congressional subpoena, or the White House's instruction not to testify under an absolute privilege theory.

The ruling ends the case. It also means that we don't get another district court say-so on the White House theory of absolute privilege for senior presidential advisors. That means that we now have (1) a district court ruling from late November rejecting absolute privilege with respect to former White House Counsel Don McGahn's compelled testimony and (2) a 2008 district court ruling rejecting absolute privilege with respect to White House Counsel Harriet Mier's compelled testimony. No circuit court has yet to weigh in. We also have a series of Office of Legal Counsel memos, starting with the 1971 memo through the most recent McGahn memo. The district courts have flatly rejected the reasoning in these memos.

We previously posted on the case here.

Just a wee little bit of background (more on our earlier posted, link above): Kupperman, a former White House official, received a subpoena to testify in the impeachment inquiry from the House Permanent Select Committee on Intelligence; but the White House instructed him not to testify, claiming an absolute privilege against compelled congressional testimony. Kupperman sued, asking the court to resolve his dilemma. But the House moved forward with impeachment without his testimony, and the Committee argued that his case was moot.

Judge Leon agreed. The court said that there's no longer a case or controversy over the matter, that the matter isn't "capable or repetition but evading review" (because the House has said unequivocally that it won't re-issue a subpoena, ever), and that there's no chance of enforcement against Kupperman.

January 1, 2020 in Cases and Case Materials, Congressional Authority, Executive Authority, Executive Privilege, News, Opinion Analysis, Separation of Powers | Permalink | Comments (0)

Sunday, December 29, 2019

Ninth Circuit Says Public Union Not Retrospectively Liable for Mandatory Dues

The Ninth Circuit ruled last week in Danielson v. Inslee that a public sector union is not liable for mandatory union dues paid before the Supreme Court struck mandatory union fees in Janus. The ruling follows a similar one in the Seventh Circuit.

Recall that the Supreme Court ruled in 2018 in Janus v. AFSCME that public sector unions could not collect mandatory fair-share fees (fees used for collective bargaining activities) consistent with the First Amendment. The ruling overturned the 1977 case Abood v. Detroit Board of Education, which upheld mandatory fees against a First Amendment challenge.

After Janus, public sector unions stopped collecting the fees. But some public sector employees sued for pre-Janus fees paid. That's what happened in the Seventh Circuit, which led that court to hold that unions weren't on the hook for pre-Janus fees. And it's what happened in the Ninth Circuit, too.

The Ninth Circuit held that the union could invoke a good-faith defense against the plaintiffs' claims, relying on the pre-Janus state of the law to continue to collect mandatory fair-share fees. As to the strong hints from the Court even before 2018 that fair-share fees were on the chopping block, the Ninth Circuit said,

Although some justices had signaled their disagreement with Abood in the years leading up to Janus, Abood remained binding authority until it was overruled. We agree with our sister circuit that "[t]he Rule of Law requires that parties abide by, and be able to rely on, what the law is, rather than what the readers of tea-leaves predict that it might be in the future."

The Supreme Court has admonished the circuit courts not to presume the overruling of its precedents, irrespective of hints in its decisions that a shift may be on the horizon.

December 29, 2019 in Association, Cases and Case Materials, First Amendment, News, Opinion Analysis, Speech | Permalink | Comments (0)

Saturday, December 28, 2019

Ninth Circuit Refuses to Stay Injunction Against Trump's Immigration Health-Care Requirement

The Ninth Circuit last week refused to grant an emergency temporary stay of a district judge's temporary injunction against enforcement of President Trump's October 4 Proclamation that restricts entry into the United States by aliens "who will financial burden the United States healthcare system." The ruling means that the lower court's injunction stays in place, and the government cannot enforce the Proclamation. The court expedited review of the government's motion for a stay pending appeal, however, and will hear oral argument on January 9.

President Trump's proclamation, titled "Presidential Proclamation on the Suspension of Entry of Immigrants Who Will Financially Burden the United States," requires aliens to show proof of approved health insurance before getting a visa or otherwise entering the United States. Plaintiffs sued, arguing that the Proclamation exceeded the President's authority under law, that the President therefore engaged in impermissible lawmaking in violation of the separation of powers, and that the law impermissibly delegated lawmaking authority to the President in violation of the nondelegation doctrine. The district court agreed and issued a temporary injunction against enforcement of the Proclamation.

The Ninth Circuit most recently denied the government's request for an emergency temporary stay. The court wrote,

Here, the status quo would be disrupted by granting the temporary stay request. Therefore, we deny the request for a temporary stay. The Proclamation has not yet gone into effect. The changes it would make to American immigration policy are major and unprecedented; the harms the government alleges it will suffer pending review of the motion for stay pending appeal are long-term rather than immediate. Our ruling is based solely on the absence of a sufficient exigency to justify changing the status quo, particularly during the few weeks before scheduled oral argument on the merits of the emergency motion; we do not consider the merits of the dispute in any respect.

The court went on to expedite briefing and oral argument on the government's motion for a stay pending appeal.

Judge Bress dissented, arguing that "the district court's decision is clearly wrong as a matter of law." According to Judge Bress, "[i]n the supposed name of the separation of powers, the district court struck down part of a longstanding congressional statute, invalidated a presidential proclamation, and purported to grant worldwide relief to persons not before the court. And it did so based on the nondelegation doctrine--among the most brittle limbs in American constitutional law--and a reading of 8 U.S.C. Sec. 1184(f) that the Supreme Court expressly rejected in Trump v. Hawaii.

December 28, 2019 in Cases and Case Materials, Congressional Authority, Courts and Judging, Executive Authority, News, Nondelegation Doctrine, Opinion Analysis, Separation of Powers | Permalink | Comments (0)

Thursday, December 26, 2019

Ninth Circuit Says State Waives Immunity from Non-Abrogated Federal Claims When it Removes

The Ninth Circuit ruled this week in Walden v. State of Nevada that a state waives its Eleventh Amendment immunity when it removes a case based on federal claims from state to federal court, even when Congress hasn't abrogated immunity for those federal claims. The ruling means that the state of Nevada must defend a federal Fair Labor Standards Act case in federal court, after it removed the case from state court.

The ruling extends Supreme Court and circuit precedent to extend waiver by removal.

The case arose when correctional officers sued the state in state court for FLSA violations. The state removed to federal court and moved to dismiss based on state sovereign immunity.

The Ninth Circuit held that by removing, the state waived its Eleventh Amendment immunity. The court noted that the Supreme Court ruled in Lapides v. Board of Regents that a state waives Eleventh Amendment immunity when it removes a case involving state-law claims over which it previously waived immunity in state court. It further noted that circuit law extended Lapides to certain federal law claims--those involving federal law where Congress validly abrogated state sovereign immunity.

Walden extends the principle one step further, to a federal claim (the FLSA) where Congress did not abrogate state sovereign immunity. "Even though [circuit law] expressly left open the question whether removing a State defendant remains immunized from certain federal claims like those under the FLSA, [the] strong preference for a straightforward, easy-to-administer rule supports our holding that removal waives Eleventh Amendment immunity for all federal claims."

December 26, 2019 in Cases and Case Materials, Eleventh Amendment, Federalism, News, Opinion Analysis | Permalink | Comments (0)

Thursday, December 19, 2019

Fourth Circuit Allows Census Undercount Claim to Move Forward

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.

December 19, 2019 in Cases and Case Materials, Courts and Judging, Jurisdiction of Federal Courts, News, Opinion Analysis, Ripeness | Permalink | Comments (0)

Fifth Circuit Strikes ACA's Individual Mandate, Remands for the Reconsideration of Rest of the Act

The Fifth Circuit yesterday ruled that the Affordable Care Act's individual mandate is unconstitutional. At the same time, the court remanded to the district court to reconsider whether the individual mandate is severable from the rest of the Act (and therefore whether other portions of the Act can stand) and to consider the government's new request for relief.

We posted on the district court's ruling here.

The ruling is a big victory for opponents of the ACA, especially the individual mandate. But whether the case also strikes other portions of the ACA, and how far the ruling sweeps, are still undetermined.

The three-judge panel ruled that the individual mandate cannot stand as an exercise of Congress's taxing power, because Congress set the tax penalty at $0. With no revenue potential, the provision cannot be a tax:

Now that the shared responsibility payment amount is set at zero, the provision's savings construction [the NFIB ruling that the individual mandate is a valid exercise of Congress's taxing power] is no longer available. The four central attributes that once saved the statute because it could be read as a tax no longer exist. Most fundamentally, the provision no longer yields the "essential feature of any tax" because it does not produce "at least some revenue for the Government." Because the provision no longer produces revenue, it necessarily lacks the three other characteristics that once rendered the provision a tax. The shared-responsibility payment is no longer "paid into the Treasure by taxpayer[s] when they file their tax returns" because the payment is no longer paid by anyone. The payment amount is no longer "determined by such familiar factors as taxable income, number of dependents, and joint filing status." The amount is zero for everyone, without regard to any of these factors. The IRS no longer collects the payment "in the same manner as taxes" because the IRS cannot collect it at all.

The court went on to say that the district court failed to consider carefully enough whether the individual mandate is severable from the rest of the Act--that is, whether other provisions of the ACA can stand without the individual mandate. (The government switched its position on appeal and argued that the mandate is inseverable.) The district court previously ruled that it wasn't severable, and thus struck the entire Act, including the guaranteed-issue and community-rating provisions, but also including every other provision (like the provision that says young people can stay on their parents' insurance until age 26). But the Fifth Circuit held that the district court's analysis wasn't sufficient, and remanded to the court "to employ a finer-toothed comb . . . and conduct a more searching inquiry into which provisions of the ACA Congress intended to be inseverable from the individual mandate."

The court also directed the lower court to consider the government's new request for relief. The government switched positions on appeal and argued that, while the individual mandate is inseverable, the court should enjoin enforcement only as to the plaintiff states and only as to those provisions that injure the plaintiffs.

In short, while yesterday's ruling struck the individual mandate, it's not yet clear exactly how far that ruling will extend to also strike other provisions of the ACA, how far it will extend geographically, and how far it will extend beyond the plaintiffs in this case.

Judge King dissented, arguing that the plaintiffs lacked standing, and that (in any event) the individual mandate was constitutional.

December 19, 2019 in Cases and Case Materials, Congressional Authority, Courts and Judging, News, Opinion Analysis | Permalink | Comments (0)

Thursday, December 12, 2019

D.C. Circuit Rebuffs Vaping Industry's Free Speech Challenges to Tobacco Control Act

The D.C. Circuit this week rejected First Amendment challenges by the vaping industry to two key provisions of the Tobacco Control Act. The ruling affirms the FDA's authority to require premarket review of vaping products and to ban the distribution of free samples of vaping products.

The case tests two provisions of the TCA. The first provision requires FDA premarket review of all new tobacco products, including e-cigarettes. The Act has three pathways for premarket review, depending on the type of tobacco product. Products designed for recreational use (like traditional cigarettes) get the easiest path of review; products marketed as safer than existing tobacco products ("modified risk" products) get a mid-level path; and products marketed as smoking cessation products get the most demanding path for review. The second provision bans the distribution of free samples.

Plaintiffs, a vaping manufacturer and a vaping industry group, argued that the two provisions violated the First Amendment. In particular, they claimed that the FDA uses a manufacturer's own claims about its product to designate an appropriate premarket review pathway (the modified risk pathway in this case), in violation of free speech. They contend that the ban on free samples impermissibly restricts their free expression. The D.C. Circuit flatly rejected the claims.

As to the premarket review requirement, the court cited circuit precedent that "explicitly approves the use of a product's marketing and labeling to discern to which regulatory regime a product is subject, and to treat it as unlawful insofar as it is marketed under a different guise." But in any event, the court also held that the requirement met Central Hudson's commercial speech test: "[E]ven if we were to scrutinize the FDA's reliance on new tobacco product descriptors as a burden on the Industry's commercial speech, the modified risk product pathway clears First Amendment scrutiny because it is reasonably tailored to advance the substantial government interest in protecting the public health and preventing youth addiction."

As to the ban on free samples, the court explained that this provision regulates conduct, not speech, and that the conduct has no obvious expressive value. The court rejected the plaintiffs' argument that free samples are "the most effective and efficient means of obtaining product-specific information when trying to switch away from deadly cigarettes":

The Industry thus appears to be urging us to afford constitutional protection to the informational value of customers' experience trying out vaping, including the experience of sampling the available flavors and sensations.

This extraordinary argument, if accepted, would extent First Amendment protection to every commercial transaction on the ground that it "communicates" to the customer "information" about a product or service. Even if we could bridge the gap between the opportunity to use a product and the expression of an "idea," the Supreme Court has long rejected the "view that an apparently limitless variety of conduct can be labeled 'speech' whenever the person engaging in the conduct intends thereby to express an idea." 

But even if the free-sample ban imposed an incidental burden on speech, the court held that "the restriction itself applies to conduct and is imposed 'for reasons unrelated to the communication of ideas.'"

December 12, 2019 in Cases and Case Materials, First Amendment, News, Opinion Analysis, Speech | Permalink | Comments (0)

Wednesday, December 11, 2019

District Court Permanently Halts One Source of Reprogrammed Funds for Border Wall

Judge David Briones (W.D. Tex.) permanently enjoined the government from using one particular source of reprogrammed funds to build the border wall. The ruling follows an earlier one in which the court ruled that the particular reprogramming violated the Consolidated Appropriations Act of 2019. (We posted on that earlier ruling here.)

Recall that Judge Briones ruled in October that the government's attempt to reprogram Defense Department funds for "military construction projects" under 10 U.S.C. Sec. 2808 violated the CAA. Judge Briones then invited the parties to suggest an appropriate remedy. Yesterday's ruling grants that remedy.

Judge Briones held that the permanent injunction factors favored the plaintiffs. The court therefore issued a permanent injunction against the agency-head defendants to prevent them from reprogramming these particular funds.

The ruling (like the court's October ruling) doesn't halt reprogramming under Section 284, however. (The court noted that the Supreme Court this summer stayed a lower court ruling that halted Section 284 reprogramming.) All this means that the government can't reprogram under Section 2808 (unless and until it appeals and wins), but it can reprogram under Section 284.

December 11, 2019 in Cases and Case Materials, Congressional Authority, Executive Authority, News, Opinion Analysis, Separation of Powers | Permalink | Comments (0)

Friday, December 6, 2019

District Court Rules State Transportation Authority Immune from Federal Whistleblower Claim

Judge Randolph D. Moss (D.D.C.) ruled this week that the Washington Metropolitan Area Transit Authority enjoyed Eleventh Amendment immunity from a former employee's suit under the National Transit Systems Security Act. In so ruling, Judge Moss held that the NTSSA wasn't included in the state-sovereign-immunity-waiver provision in the Civil Rights Remedies Equalization Act. The ruling dismisses the case.

The case arose when a former WMATA employee sued the Authority for violating the NTSSA. That Act, a whistleblower-protection act, prohibits public transportation agencies from "discharg[ing]" or otherwise "discriminat[ing] against an employee" based "in whole or in part" on the employee's "lawful, good faith" provision of information relating to conduct that "the employee reasonably believes constitutes a violation of any Federal law, rule, or regulation relating to public safety or security" to "a person with supervisory authority over the employee."

WMATA, a creature of a compact between Maryland, Virginia, and D.C., moved to dismiss on state sovereign immunity grounds.

The plaintiff countered that WMATA waived its Eleventh Amendment immunity under the Civil Rights Remedies Equalization Act. The CRREA provides that

[a] State shall not be immune under the Eleventh Amendment . . . from suit in Federal court for a violation of section 504 of the Rehabilitation Act of 1973, title IX of the Education Amendments of 1972, the Age Discrimination Act of 1975, title VI of the Civil Rights Act of 1964, or the provisions of any other Federal statute prohibiting discrimination by recipients of Federal financial assistance.

The plaintiff argued that the NTSSA fell within the catch-all provision, because it specifically prohibits discrimination. He claimed that WMATA therefore waived immunity under the CRREA.

The court rejected this argument. The court acknowledged that the NTSSA banned "discrimination," but said that the discrimination outlawed in the NTSSA was not the same type of discrimination covered in CRREA, and that it therefore didn't fall within the CRREA's catch-all:

Each of the enumerated statutes [in the CRREA] prohibits class-based discrimination--that is, discrimination based on a personal characteristic, such as race, national origin, age, sex, or disability. Each is fairly described as a civil rights statute--the presumptive target of the Civil Rights Remedies Equalization Act. And each ensures that the benefits of federally funded programs are equally available to all, regardless of their race, national origin, sex, or disability. The NTSSA, in contrast, is a public safety statute, designed to ensure that employees of public transportation agencies and their contractors and subcontractors are not dissuaded from flagging potential violations of federal safety or security rules . . . . Although the NTSSA uses the word "discriminate," it does so in [a] very different manner than the CRREA and the enumerated statutes.

December 6, 2019 in Cases and Case Materials, Eleventh Amendment, Federalism, News, Opinion Analysis | Permalink | Comments (0)

Wednesday, December 4, 2019

Second Circuit Says Deutsche Bank Must Turn Over Trump Financial Records to House Committees

The Second Circuit ruled that Deutsche Bank and Capital One have to comply with subpoenas issued by the House Financial Services and Permanent Select Committee on Intelligence for financial records related to President Trump and his businesses. The court denied a preliminary injunction to halt the disclosures. While the ruling is technically preliminary, the court noted that it's effectively a ruling on the merits.

The ruling is yet another blow to President Trump and his continuing quest to keep his financial records secret. (We posted most recently here, on the Supreme Court's stay of a D.C. Circuit mandate to Mazars to release his financial records.) It's also yet another candidate for Supreme Court review.

After the Committees subpoenaed the banks, President Trump, his three oldest children, and some of their organizations sued the banks and the Committees seeking to halt the disclosure. The plaintiffs raised statutory and constitutional claims, although the court noted that President Trump specifically identified himself only as a private citizen.

The court held that the plaintiffs weren't likely to succeed on any of their claims. As to the first statutory claim, the court held that the Right to Financial Privacy Act did not prohibit the disclosures, because the RFPA doesn't apply to Congress. As to the second statutory claim, the court ruled that 26 U.S.C. Sec. 6103 and its several relevant subsections didn't bar the Committees from seeking the records from the banks.

As to the constitutional claim, the court rejected the plaintiffs' contention that the Committees exceeded their power to investigate in issuing the subpoenas. The court noted the breadth of the subpoenas, but nevertheless held that the Committees had a valid legislative purpose (not focusing on possible illegalities committed by the President, but instead "on the existence of such activity in the banking industry, the adequacy of regulation by relevant agencies, and the need for legislation") and that the "public need" to investigate for that purpose "overbalances any private rights affected." On this balancing, the court wrote,

"[T]he weight to be ascribed to" the public need for the investigations the Committees are pursuing is of the highest order. The legislative purposes of the investigations concern national security and the integrity of elections, as detailed above. By contrast, the privacy interests concern private financial documents related to businesses, possibly enhanced by the risk that disclosure might distract the President in the performance of his official duties.

The court went on to hold that the subpoenas were sufficiently tailored to the Committees' legitimate purposes.

The court identified one request, however, that "might reveal sensitive personal details having no relationship to the Committees' legislative purposes," and others "that have such an attenuated relationship to the Committees' legislative purposes that they need not be disclosed." The court remanded to the district court and specified a procedure by which the court could exclude certain "sensitive documents."

As to all other documents not identified for exclusion or possible exclusion, however, the court ordered the banks to "promptly transmit[] to the Committees in daily batches as they are assembled, beginning seven days from the date of this opinion."

The court rejected the amicus government's separation-of-powers argument, holding that this case isn't about the separation of powers (because it involves a congressional request from a third party for information of the President in his personal capacity).

Judge Livingston dissented. She agreed with the majority that the plaintiffs lacked a likelihood of success on the merits of their statutory claims. But she disagreed about how to treat the constitutional claims. She argued that the case raises serious separation-of-powers concerns, and that the current record simply isn't well enough developed to evaluate those concerns. So she argued for a full remand, "directing the district court promptly to implement a procedure by which the Plaintiffs may lodge their objections to disclosure with regard to specific portions of the assembled material and so that the Committees can clearly articulate, also with regard to specific categories of information, the legislative purpose that supports disclosure and the pertinence of such information to that purpose."

December 4, 2019 in Cases and Case Materials, Congressional Authority, Courts and Judging, Executive Authority, News, Opinion Analysis, Separation of Powers | Permalink | Comments (0)

Tuesday, November 26, 2019

Supreme Court Stays D.C. Circuit's Mandate to Release Trump Tax Records

The full Supreme Court issued an order yesterday staying the D.C. Circuit's mandate to Mazars to release President Trump's financial records, including tax filings, pending a writ of cert. on or before December 5.

The order extends a previous stay issued by Chief Justice Roberts and prompts President Trump to seek Supreme Court review. But the very brief order itself signals nothing about whether the Court will grant review, or how it will rule if it does. There's no dissenting opinion.

The stay expires on December 5, at noon, if no writ of cert. is filed.

If the Court grants review, we could have a ruling this spring or summer. But we won't get the taxes in the meantime.

November 26, 2019 in Cases and Case Materials, Congressional Authority, Executive Authority, News, Opinion Analysis, Separation of Powers | Permalink | Comments (0)

District Court Says McGahn Must Comply with House Subpoena and Testify

Judge Ketanji Brown Jackson (D.D.C.) ruled yesterday that former White House Counsel Don McGahn must comply with a subpoena issued by the House Judiciary Committee and testify before the Committee. The ruling rejects the sweeping claim that high-level presidential advisors enjoy categorical testimonial immunity.

At the same time, the court held that McGahn could assert appropriate privileges (like executive privilege) to specific questions from the Committee.

The ruling deals a sharp blow to the Trump Administration and its attempts to categorically shield certain White House officials from testifying before Congress. It applies directly to McGahn, of course; but the reasoning applies equally, or even with greater force, to House testimony by senior presidential advisors in the impeachment inquiry. (Why "or even with greater force"? Because the House may be on even firmer ground in issuing any subpoenas in the course of an impeachment inquiry.)

The administration will surely appeal. (DOJ is representing McGahn and presented arguments on behalf of the executive branch.) As a result, we're unlikely to see McGahn testify anytime soon. If the parties continue to press the issue, it'll surely go to the Supreme Court. (The 2008 Miers case, which the court said was "on all fours" with this one, didn't go up on appeal, because the parties settled. That could happen here, too.)

The case arose when the Committee sued McGahn to enforce its subpoena against him to testify in its investigation into whether President Trump and his associates engaged in misconduct in the run-up to the 2016 presidential election. DOJ, representing McGahn, argued that McGahn was a high-level presidential advisor who enjoyed absolute testimonial immunity before Congress.

The court ruled that it had jurisdiction over the case and then rejected DOJ's sweeping claim of immunity. In short, the court held that the issue was already decided by Judge Bates in 2008, in Committee on Judiciary v. Miers. Here's a nice summary (pp. 41-42 of the opinion):

Unfortunately for DOJ, and as explained fully below, these contentions about the relative power of the federal courts [as to lack of jurisdiction], congressional committee, and the President distort established separation-of-powers principles beyond all recognition. Thus, ultimately, the arguments that DOJ advances to support its claim of absolute testimonial immunity for senior-level presidential aides transgress core constitutional truths (notwithstanding OLC's persistent heralding of these and similar propositions). By contrast, textbook constitutional law readily reveals that, precisely because the Constitution bestows upon the Judiciary the power to demarcate the boundaries of lawful conduct by government officials, the federal courts have subject-matter jurisdiction to entertain subpoena-enforcement disputes concerning legislative subpoenas that have been issued to Executive branch officials. It is similarly well established that, because the Constitution vests the Legislature with the power to investigate potential abuses of official authority--when necessary to hold government officials (up to, and including, the President) accountable, as representatives of the People of the United States--then House committees have both Article III standing and a cause of action to pursue judicial enforcement of their duly authorized and legally enforceable requests for information. What is missing from the Constitution's framework as the Framers envisioned it is the President's purported power to kneecap House investigations that Executive branch operations by demanding that his senior-level aides breach their legal duty to respond to compelled congressional process.

Luckily for this Court, an existing precedent that is on all fours with the instant matter (Miers) already systematically dismantles the edifice that DOJ appears to have erected over the years to enshrine the proposition that a President's senior-level aides have absolute immunity with respect to legislative subpoenas that Congress issues in the course of its investigations . . . .

November 26, 2019 in Cases and Case Materials, Congressional Authority, Courts and Judging, Executive Authority, Executive Privilege, News, Opinion Analysis, Separation of Powers | Permalink | Comments (0)

Sunday, November 24, 2019

District Court Gives Trump Limited Protection in Tax Returns Case

Judge Carl J. Nichols (D.D.C.) earlier this week ordered House Ways and Means Chair Richard Neal to provide President Trump and the court contemporaneous notice if he seeks President Trump's tax returns under New York's TRUST Act. Judge Nichols further ordered Chair Neal not to receive the tax returns for 14 days after any request.

The order is designed to allow the court to determine whether a request is valid. Without the notice and delay requirements, Chair Neal could request, and receive, the records without President Trump's knowledge, let alone his challenge, then immediately mooting his claim.

New York's TRUST Act authorizes certain congressional leaders to request and receive certain public officials' state tax returns, including the tax returns of the president, without providing prior notice to the officials. After enactment, President Trump sued, arguing that the TRUST Act violated Article I, because such a request would lack a legitimate legislative purpose, and the First Amendment. He also sought emergency relief under the All Writs Act, asking the court for an order that would allow the parties to litigate the legality of any request for his state returns before New York authorities would release them (and thus render any challenge moot). 

Congressional Democrats moved to dismiss, arguing that they were immune from suit under the Speech and Debate Clause, and that President Trump lacked standing.

The court ruled that it couldn't yet determine whether Chair Neal would be immune from suit under the Speech and Debate Clause, because he hasn't yet requested the records. The court said that Speech & Debate immunity turns on whether any request would concern matters "on which legislative could be had," and thus turns on legislative purpose. But because nobody has made a request, the court can't determine the purpose of any request.

As to standing, the court ruled that President Trump has standing: because "[t]he risk of future harm to Mr. Trump thus requires just a single step by a single actor, Chairman Neal, who is a party to this litigation," "there is sufficiently substantial risk that future harm could occur to warrant limited relief under the All Writs Act." 

The court then ordered that Chair Neal inform President Trump and the court at the same time when he makes any request, and not to receive the tax returns for 14 days after. According to the court, this "will prevent Mr. Trump's claims from becoming ripe and then moot almost simultaneously without notice to him or the Court."

November 24, 2019 in Cases and Case Materials, Congressional Authority, Courts and Judging, Executive Authority, First Amendment, News, Opinion Analysis, Separation of Powers | Permalink | Comments (0)

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

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.

November 24, 2019 in Cases and Case Materials, Courts and Judging, Jurisdiction of Federal Courts, News, Opinion Analysis | Permalink | Comments (0)

Thursday, November 21, 2019

California High Court Strikes State Law Requiring Presidential Candidates to Disclose Taxes

A unanimous California Supreme Court ruled the state requirement that presidential candidates disclose their federal taxes violates the state constitution. The ruling is a significant victory for President Trump and the state's GOP.

The ruling notes that there are several pending lawsuits challenging the disclosure requirement under the U.S. Constitution. The California Supreme Court, however, limited its ruling to the state constitution. Because it's limited to the state constitution, it's final, and can't be appealed to the Supreme Court.

The California Presidential Tax Transparency and Accountability Act prohibits the Secretary of State from printing on a primary election ballot the name of a candidate for President of the United States who has not filed with the Secretary of State the candidate's federal income tax returns for the five most recent taxable years. But the state constitution, article II, section 5(c), provides:

The Legislature shall provide for partisan elections for presidential candidates, and political party and party central committees, including an open presidential primary whereby the candidates on the ballot are those found by the Secretary of State to be recognized candidates throughout the nation or throughout California for the office of President of the United States, and those whose names are placed on the ballot by petition, but excluding any candidate who has withdrawn by filing an affidavit of noncandidacy.

The state high court ruled that the Act impermissibly added a requirement for a candidate to be listed on the ballot, in violation of article II, section 5(c). As the court explained:

[A]rticle II, section 5(c) is most naturally read as conveying a rule of inclusivity for presidential primary elections that the Legislature cannot contravene. This reading is strongly supported by the history of the constitutional text that now appears in article II, section 5(c). This history establishes beyond fair dispute that this language was adopted to ensure that the ballots for parties participating in the presidential primary election would include all persons within said parties deemed to be "recognized candidates throughout the nation or throughout California for the office of President of the United States," except for those candidates who filed affidavits of noncandidacy, so that voters in the primary election would have a direct opportunity to vote for or against these candidates.

Because the relevant provisions of the Act condition a presidential candidate's placement on the primary ballot on compliance with an additional requirement that is concededly not a reasonable measure of whether the candidate is "recognized" as such throughout the nation or California, it conflicts with the rule specified by article II, section 5(c), and is for that reason invalid.

 

November 21, 2019 in Cases and Case Materials, Elections and Voting, News, Opinion Analysis, State Constitutional Law | Permalink | Comments (0)

Wednesday, November 20, 2019

Seventh Circuit Rebuffs Claim for Pre-Janus Fair-Share Fees

The Seventh Circuit earlier this month rejected Mark Janus's claim for retroactive fair-share fees he paid to AFSCME, before the Court struck fair-share fees under the First Amendment in Janus.

The ruling is the first in a circuit court to address whether workers in a union shop are entitled to retroactive fair-share fees that they paid before Janus. District courts that have ruled on the issue are unanimous in rejecting the claims.

A contrary ruling--one putting public sector unions on the hook for retroactive fair-share fees--could be (even more) devastating to public sector unions.

Recall that the Court struck mandatory fair-share fees for public-sector unions in Janus. That was huge, because the case overturned a 1977 ruling, Abood v. Detroit Board of Education, that upheld those fees.

After Janus came down, the plaintiff in that case, Mark Janus, sued again, this time to get back fees he paid before the Supreme Court struck them. AFSCME argued that it collected those fees in good-faith reliance on Abood and therefore wasn't required to repay them.

The Seventh Circuit agreed with AFSCME. But it also emphasized the narrowness of its decision:

It is not true, as Mr. Janus charges, that this defense will be available to "every defendant that deprives any person of any constitutional right." We predict that only rarely will a party successfully claim to have relied substantially and in good faith on both a state statute and unambiguous Supreme Court precedent validating that statute.

The issue is brewing in several other circuits.

November 20, 2019 in Cases and Case Materials, First Amendment, News, Opinion Analysis | Permalink | Comments (0)

California District Court Strikes Conscience Rule

Judge William Alsup (N.D. Cal.) yesterday vacated the Trump Administrations "conscience rule" designed to allow healthcare workers to decline services if they have a religious objection to a procedure.

We posted recently on a similar ruling out of the Southern District of New York. Judge Alsup's ruling is narrower than the New York ruling, however, and says only that the rule goes well beyond statutory authorization. Both courts vacated the rule in its entirety.

Judge Alsup focused on how the rule's definitions expand conscience protections well beyond the statutory protections. As the court wrote, "[t]hese definitions . . . make the mischief . . . [and are] the heart of the problem."

In particular, the court held that the definitions of "assist in the performance of," "health care entity," "entity," "discriminate," and "referral" expand conscience protections far beyond what the relevant statutes authorize. The court ruled that the conscience rule was therefore contrary to law, and violated the Administrative Procedure Act.

The court described the conscience rule's effect this way: "Under the new rule, to preview just one example, an ambulance driver would be free, on religious or moral grounds, to eject a patient en route to a hospital upon learning that the patient needed an emergency abortion. Such harsh treatment would be blessed by the new rule."

Like the New York court, the California court held that the problems with the rule were so pervasive that it had no choice but to vacate the rule in its entirety.

The ruling means that the administration can appeal, or go back to the drawing board and re-write a conscience rule that comports with the law. But the administration can't enforce this rule.

November 20, 2019 in Cases and Case Materials, Congressional Authority, Executive Authority, News, Opinion Analysis, Separation of Powers | Permalink | Comments (0)