Wednesday, November 6, 2019

District Court Strikes Trump Administration "Conscience Protections" for Healthcare Workers

Judge Paul A. Engelmayer (S.D.N.Y.) struck the Trump Administration rule designed to allow healthcare workers to decline services if they have a religious objection to a procedure. 

We posted on the final rule here.

The ruling deals a significant blow to the Administration's efforts to expand "conscience protections" for healthcare workers beyond what federal statutes currently provide.

The court held that the Health and Human Services rule exceed statutory authority, violate the law, and violated the separation of powers and the Spending Clause. The court held that it did not violate the Establishment Clause.

The rule provides, among other things, that a healthcare worker can decline to participate in a procedure when the worker has a religious or moral objection, that the worker's employer can't discriminate against the worker based on the worker's beliefs, and that HHS can revoke all HHS funding to any employer who violates these provisions. HHS purportedly adopted the rule under authority of 30 statutory provisions that recognize the right of an individual or entity to abstain from participation in medical procedures. 

The court ruled that the sweeping rule went well beyond HHS's statutory authority, and that the agency therefore exceeded its statutory authority in enacting the rule. It also held that the rule violates Title VII and the Emergency Medical Treatment and Labor Act. And it held that HHS's reasons for enacting the rule were not sufficient (among other things, "HHS's central factual claim of a 'significant increase' of complaints of Conscience Provision violations is flatly untrue."); that HHS's explanation for changing course was insufficient; and that HHS failed to consider the rule's application to medical emergencies and its interplay (and conflict with) Title VII. Finally, the court held that the rule's sweeping definition of "discrimination" "was not a logical outgrowth of the Rule as proposed." 

The court also ruled that HHS violated the separation of powers by adopting a rule that allowed the agency to withhold all federal funding, exceeding the agency's authority under federal law. It held that the rule violated the Spending Clause as against state plaintiffs, because the conditions on receipt of federal funds are ambiguous and impermissibly coercive. 

However, the court rejected the plaintiffs' argument that the rule violated the Establishment Clause, "because the Rule, on its face, equally recognizes secular ("moral") and religious objections to the covered medical procedures."

The court vacated the entire rule (and declined to sever offending portions, given that the APA violates "are numerous, fundamental, and far-reaching") and held it invalid as to any plaintiff. 

November 6, 2019 in Cases and Case Materials, Congressional Authority, Establishment Clause, Executive Authority, News, Opinion Analysis, Separation of Powers, Spending Clause | Permalink | Comments (0)

Monday, November 4, 2019

Another Defamation Lawsuit Against Trump Connected to Sexual Misconduct

In a 28 page complaint filed in New York state courts opening the case Carroll v. Trump, E. Jean Carroll has sued the president for one count of defamation.

The argument is that the president is "sued here only in his personal capacity" and implicitly that there is no presidential immunity, noting cases in which President Trump has been a plaintiff in his personal capacity, and further citing "a related case" of Zervos v. Trump in which Trump is a defendant. Recall that a New York appellate court considering Zervos earlier this year held that Trump was not immunized from defending a lawsuit in state court.

Screen Shot 2019-11-04 at 3.38.53 PMInterestingly, this paragraph avers that Trump is a "resident" of New York; Trump announced a few days ago that he had filed a "declaration of domicile" in Florida. There are other aspects of personal jurisdiction and there is no amount in the complaint that might satisfy the threshold for removal to federal court for diversity purposes.

The complaint provides a compelling explanation of E. Jean Carroll's silence about the 1995 or 1996 event in which she alleges Trump raped her in a department store dressing room as well as the rationales for changing her mind, including the death of her mother and the burgeoning #MeToo movement response to Harvey Weinstein.

As to the substantive allegations, Carroll highlights three statements — made on June 21, 22, and 24 — that were widely disseminated and accused Carroll of lying about the incident, of inventing the incident for book sales, of inventing the incident for a "political agenda," of lying about incidents with other men, and stating that Trump did not know her, had never met her, and that she was "not his type."  On reputational damages, the complaint avers that since the defamation she lost the "support and goodwill" of many of the readers of her advice column, resulting in "roughly 50% fewer letters" to which she could respond, noting that as an advice columnist she requires a "steady flood of compelling letters" seeking her advice.

Expect Trump's answer — or more probably motion to dismiss — to raise the same immunity defense as in Zervos despite the appellate court decision and perhaps a jurisdictional argument.

 

November 4, 2019 in Current Affairs, Executive Authority, Executive Privilege, First Amendment, Gender, News, Recent Cases, Supremacy Clause | Permalink | Comments (0)

Second Circuit Rejects President Trump's Effort to Protect Taxes, Establish Categorical Immunity from Criminal Investigation

The Second Circuit today flatly rejected President Trump's attempt to halt a grand jury subpoena for the President's financial records directed at his accounting firm, Mazars, based on a claim of absolute presidential immunity from all criminal processes (including investigations).

The ruling deals a sharp blow to the President and his extraordinary efforts to conceal his taxes. Still, the President is sure to appeal. (Just last month, the President lost in the D.C. Circuit on a similar case, dealing with a House subpoena directed at Mazars.)

Recall that the President filed this federal case to stop a state criminal process, in particular, a state grand jury's subpoena to Mazars for the President's financial records, including his taxes. The district court ruled that the President's suit was barred by Younger abstention and, in the alternative, that the President was not likely to succeed on the merits of his immunity claim.

The Second Circuit reversed on the abstention question, but affirmed on the immunity question. The court noted that the subpoena was directed at Mazars, not President Trump, and therefore did not require the President to do anything that might interfere with his ability to faithfully execute the law. It noted moreover that the subpoena seeks information that has nothing to do with the President's official responsibilities, and is therefore not subject to any claim of executive privilege.

As to the President's claim of absolute privilege against any criminal process (including even an investigation), the court wrote that the scant authority on this question goes only against the President. In particular, it noted that the Court in United States v. Nixon held that executive privilege and separation-of-powers concerns did not preclude the enforcement of a subpoena for presidential records. (As to the separation of powers, the court noted, "That the Court [in Nixon] felt it unnecessary to devote extended discussion to the latter argument strongly suggests that the President may not resist compliance with an otherwise valid subpoena for private and non-privileged materials simply because he is the President.") Moreover, the court noted that even the two OLC memos that the President cited--the 1973 Dixon memo, and the 2000 Moss memo, only go so far as immunity from indictment, not mere investigation.

Although the ruling doesn't mean that we'll see the President's taxes soon--again, the President is sure to appeal, and that'll take some time--it is a sharp blow against his claim of absolute privilege from all criminal process.

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

Friday, November 1, 2019

Ninth Circuit Rebuffs Administration Effort to Clamp Down on Sanctuary Cities

The Ninth Circuit affirmed a preliminary injunction against the Department of Justice's effort to clamp down on sanctuary cities by imposing two conditions on recipients of the DOJ-administered Byrne JAG grant program. The ruling keeps in place the injunction against DOJ's "notice" and "access" conditions that are designed to encourage local governments to cooperate with federal immigration authorities to identify unauthorized aliens.

The Ninth Circuit ruling is just the latest in a line halting the implementation of these conditions. We posted most recently on sanctuary litigation here.

The case, City of Los Angeles v. Barr, tests the two conditions that DOJ put on Byrne-JAG grant recipients without specific congressional authorization. The first condition, the "notice" condition, requires a recipient to honor DHS's requests for advance notice of the scheduled release date and time of any detained alien held in a grant recipient's correctional facilities. The second condition, the "access" condition, requires a grant recipient to give federal agents access to correctional facilities to meet with detained aliens.

The court rejected DOJ's arguments that two statutory provisions authorized it to impose the conditions. The first, a provision in the Violence Against Women Act, says that the Assistant AG shall "exercise such other powers and functions as may be vested in the Assistant Attorney General pursuant to this title or by delegation of the Attorney General, including placing such special conditions on all grants, and determining priority purposes for formula grants." The court held that the notice and access conditions were not "special conditions" under the provision, "because they are not conditions triggered by specific characteristics not addressed by established conditions, as was the case for high-risk grantees under [Department regulations]." It held that they weren't "priority purposes," because "[t]he notice and access conditions are not included as purposes of the Byrne JAG award, nor are they purposes of either of its predecessor grant statutes." The court said that the first provision therefore didn't authorize the conditions.

The second provision, a section of the Byrne-JAG statute itself, authorizes the AG to obtain certain information and to require coordination with agencies. The court held that maintenance and reporting requirements applied to programs under the statute, and not to notice of a detained alien. And it held that the coordination requirement applied to "agencies affected by the program to be funded by the Byrne JAG award," not "DHS agents who are not part of a funded program." The court said that the second provision therefore didn't authorize the conditions, either.

Because no statute authorized DOJ to impose the conditions, DOJ lacked authority to impose them, and the court upheld a preliminary injunction halting them.

November 1, 2019 in Cases and Case Materials, Congressional Authority, Executive Authority, News, Opinion Analysis, Separation of Powers, Spending Clause | Permalink | Comments (0)

Tuesday, October 29, 2019

Can California Enter into a Cap-and-Trade Agreement with Quebec?

That's the question raised in a lawsuit filed by the United States last week in the Eastern District of California. The U.S. seeks a declaration that the agreement is unconstitutional and a permanent injunction to halt its operation.

The case, U.S. v. California, tests California's cap-and-trade agreement with the provincial government of Quebec, Canada. The federal government argues that the agreement violates the Treaty Clause (prohibiting states from "enter[ing] into any Treaty, Alliance, or Confederation"), the Compact Clause (prohibiting states, without congressional consent, from "enter[ing] into any Agreement or Compact . . . with a foreign Power"), and the Foreign Commerce Clause. It also contends that the agreement impermissibly interferes with the federal government's powers over foreign affairs.

In short:

This intrusion complexifies and burdens the United States' task, as a collective of the states and territories, of negotiating competitive international agreements. Moreover, California's actions, as well as the actions of those acting in concert with it, have had the effect of enhancing the political power of that state vis-a-vis the United States. This is due not only to the effect of the Agreement itself but also stems from the fact that the Agreement could encourage other states to enter into similarly illegal arrangements.

The design of the Constitution requires that the federal government be able to speak with one voice on behalf of the United States in matters of foreign affairs. Allowing individual states in the Union to conduct their own foreign policy to advance their own narrow interests is thus anathema to our system of government and, if tolerated, would unlawfully enhance state power at the expense of the United States and undermine the United States' ability to negotiate competitive international agreements.

October 29, 2019 in Cases and Case Materials, Executive Authority, Federalism, Foreign Affairs, News, Opinion Analysis | Permalink | Comments (0)

D.C. Circuit Stays District Court Order to Release Mueller Grand Jury Material

The D.C. Circuit today stayed last week's district court order that the Justice Department release material from the Mueller Report that was redacted because it was part of the grand jury proceeding. We posted on the district court order here.

This means that DOJ won't release the material to the Committee--at least not until the appeals court says so.

The ruling is not a surprise--it simply maintains the status quo--and says nothing about the merits. The court ordered the Committee to file a response to DOJ's emergency motion by Friday, and DOJ to file any reply by next Tuesday.

October 29, 2019 in Cases and Case Materials, Congressional Authority, Courts and Judging, Executive Authority, News, Opinion Analysis, Separation of Powers | Permalink | Comments (0)

Saturday, October 26, 2019

Former National Security Official Sues for Declaration on Congressional Subpoena, Absolute Privilege

Former Deputy National Security Advisor and Acting National Security Advisor Charles Kupperman sued late Friday for a ruling on how he should navigate between a House committee subpoena to testify in the impeachment inquiry and White House instructions not to.

The case is unusual, in that the subject of a subpoena seeks a ruling before making a decision to testify. More commonly, a rebuffed House committee has filed suit to enforce its subpoena. 

Kupperman's complaint sets out two questions for the court. First, the complaint asks whether the White House is right in flatly instructing him not to testify based on its now-familiar categorical assertion of absolute executive privilege. On the one hand, he says that the Office of Legal Counsel "has consistently opined that 'the President and his immediate advisers are absolutely immune from testimonial compulsion by a Congressional committee' on matters related to their official duties," and that "[t]he Executive Branch has, with few exceptions, refused to permit close White House advisors to the President to testify before Congress since the 1940s when the Executive Office of the President was created." On the other, he points out that the D.C. District rejected just such an absolute, categorical claim of executive privilege in Committee on the Judiciary v. Miers. But he notes that the court "further concluded that the Counsel to the President was not entitled to absolute or qualified immunity because the inquiry did not 'involve the sensitive topics of national security or foreign affairs.'" He also notes that the ruling was stayed pending appeal, and that it settled before the D.C. Circuit had a chance to rule.

Next, the complaint asks whether the committee had authority under House rules to issue the subpoena. He cites Rule XI, clause 2(m), which grants committees subpoena power "[f]or the purpose of carrying out any of its functions and duties under this rule and rule X . . . ." He notes that the rule doesn't specifically include impeachment as one of the "functions and duties," and that Rule X speaks in terms of legislative functions, not impeachment. But he also points out that the D.C. Circuit recently held in Mazars "that Rule XI, clause 2(m) authorized the House Oversight Committee to issue a subpoena in furtherance of an investigation into alleged misconduct by the President," but that Judge Rao dissented on this point.

Kupperman asked the court for a declaration on how to reconcile the competing demands and for expedited review.

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

Friday, October 25, 2019

Court Orders DOJ to Release Grand Jury Material from Mueller Report to House,Validates House Impeachment Inquiry

Judge Beryl A. Howell (D.D.C.) today granted the House Judiciary Committee's application for portions of the Mueller Report that were redacted because they were part of a grand jury proceeding. "Consequently, DOJ is ordered to provide promptly, by October 30, 2019, to HJC all portions of the Mueller Report that were redacted pursuant to Rule 6(e) and any underlying transcripts or exhibits referenced in the portions of the Mueller Report that were redacted pursuant to Rule 6(e). HJC is permitted to file further requests articulating its particularized need for additional grand jury information requested in the initial application."

The ruling deals a sharp blow to the Trump Administration and its attempts to protect grand jury material from the Mueller Report from Congress. It's also a clear validation of the legitimacy of the House's impeachment process. It doesn't plow any new legal ground, however. Indeed, the case is only notable because it rebuffs the administration's extraordinary claims.

Still, there's sure to be an appeal.

The case, In re Application of the Committee on the Judiciary, arose when DOJ refused the House Judiciary Committee's request for grand jury material from the Mueller Report. DOJ cited Federal Rule of Criminal Procedure 6(e). That rule generally prohibits disclosure of "a matter occurring before the grand jury." But it has an exception for disclosure "preliminary to or in connection with a judiciary proceeding." The Committee filed its application with the district court under this exception and requested "the grand jury information referenced in or underlying the Mueller Report as well as grand jury information collected by the Special Counsel relating to four categories of information pursuant to Rule 6(e)'s exception . . . ."

The court ruled for the Committee. The court first concluded that a Senate impeachment trial is "a judicial proceeding." The court said that the phrase "judicial proceeding" has a broad meaning; that an impeachment trial is inherently judicial in nature; that historical practice supports this reading; and that D.C. Circuit law "forecloses any conclusion other than that an impeachment trial is a 'judicial proceeding.'" 

The court next concluded that the Committee's investigation is "preliminary to" that judicial proceeding. It held that the Committee's "primary purpose is to determine whether to recommend articles of impeachment," and that requiring anything more would result in the court impermissibly intruding on Congress's Article I powers. 

Notably, the court emphasized that the Committee's work investigating impeachment is legitimate and constitutionally permissible, and that nothing requires the House to adopt an "impeachment inquiry resolution" to legitimate its work.

Finally, the court surveyed the several reasons why the Committee "has a 'particularized need' for the requested materials,'" including why and how this material may relate to the Ukraine investigation and to any other possible grounds for impeachment.

October 25, 2019 in Cases and Case Materials, Congressional Authority, Courts and Judging, Executive Authority, News, Opinion Analysis, Separation of Powers | Permalink | Comments (0)

Thursday, October 24, 2019

Ninth Circuit Bars Enforcement of ACA Contraception Exemption Rules

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.

 

October 24, 2019 in Cases and Case Materials, Courts and Judging, Executive Authority, Jurisdiction of Federal Courts, News, Opinion Analysis, Separation of Powers | Permalink | Comments (0)

Illinois Supreme Court Upholds State Revenge Porn Law

The Illinois Supreme Court last week upheld the state's revenge-porn law against a First Amendment challenge. The ruling rebuffed an appeal by a criminal defendant charged with violating the law.

The case, People v. Austin, tested Illinois's effort to criminalize revenge porn. The law provides as follows:

(b) A person commits non-consensual dissemination of private sexual images when he or she:

(1) intentionally disseminates an image of another person:

(A) who is at least 18 years of age; and

(B) who is identifiable from the image itself or information displayed in connection with the image; and

(C) who is engaged in a sexual act or whose intimate parts are exposed, in whole or in part; and

(2) obtains the image under circumstances in which a reasonable person would know or understand that the image was to remain private; and

(3) knows or should have known that the person in the image has not consented to the dissemination.

The court first ruled that the law doesn't cover material in any categorical exception to free speech (like incitement, true threats, obscenity, etc.), and it declined to establish a new exception. 

It next ruled that the law is a content-neutral restriction on speech: "There is no criminal liability for the dissemination of the very same image obtained and distributed with consent. The manner of the image's acquisition and publication, and not its content, is thus crucial to the illegality of its dissemination." The court went on to hold that the act satisfies intermediate scrutiny, because it serves the state's interest in protecting privacy and "the substantial government interests of protecting Illinois residents from nonconsensual dissemination of private sexual images would be achieved less effectively" without it. 

The court rejected arguments that the act was overbroad or vague.

The dissent argued that the act was content-based, because "one must look at the content of the photo to determine whether it falls within the purview of the statute," and that it failed strict scrutiny because it lacked a specific intent element. "Instead, simply viewing an image sent in a text message and showing it to the person next to you could result in felony charges."

October 24, 2019 in Cases and Case Materials, First Amendment, News, Opinion Analysis, Speech | Permalink | Comments (0)

Tuesday, October 22, 2019

Court to Review CFPB

The Supreme Court on Friday agreed to hear a separation-of-powers challenge to the structure of the Consumer Financial Protection Bureau. The Court granted cert. to determine whether the for-cause removal provision for the head of the CFPB violates the separation of powers. It then ordered the parties to brief whether the for-cause removal provision was severable from the Dodd-Frank Act.

We previously posted on the case, Seila Law LLC v. CFPB, here. Notably, the CFPB itself now joins Seila Law in arguing that the structure is unconstitutional.

The case tests the for-cause removal provision for the head of the CFPB--long a target of opponents of independent agencies within the executive branch. Opponents argue that the for-cause removal provision impermissibly encroaches on the President's authority to execute the law, because it prohibits the President from firing the head of the agency at will.

The Court has long upheld similar protections that create agency independence. But the government argues that those rulings involved multi-member bodies (as in Humphrey's Executor v. U.S.) or "inferior offices" that lack the independent power of the CFPB (as in Morrison v. Olson), so that they don't unduly encroach on the President's authority.

The attack on the structure of the CFPB is just the latest in a long line of challenges that draw on a strong version of the "unitary executive theory," set out most prominently in Justice Scalia's lone dissent in Morrison v. Olson. Justice Scalia's position has gained traction since Morrison, and this case may now make it law.

In a different case dealing with the same question, then-Judge Kavanaugh wrote for a panel of the D.C. Circuit that the CFPB's structure violated the separation of powers. The ruling is a robust endorsement of the unitary executive theory and a roadmap for opponents of the agency's independence.

The severability question means that if the Court strikes the director's for-cause removal provision, it could also overturn the provisions in Dodd-Frank that created the agency in the first place. That could have sweeping effects, even potentially nullifying the agency's prior actions.

The Court hasn't yet scheduled the case for argument.

October 22, 2019 in Cases and Case Materials, Congressional Authority, Executive Authority, News, Separation of Powers | Permalink | Comments (0)

Thursday, October 17, 2019

Ninth Circuit Extends Eleventh Amendment Waiver-by-Removal (again)

The Ninth Circuit ruled today in Walden v. Nevada that a state waives its Eleventh Amendment immunity over any federal claims when it removes a case from state to federal court. The court previously ruled that a state waives immunity over only those federal claims that Congress failed to apply to the states by abrogation when a state removes; today's ruling extends that waiver-by-removal rule to all federal claims.

The case arose when Nevada state employees sued the state for violations of the Fair Labor Standards Act in state court. The state removed the case to federal court and moved to dismiss based on state sovereign immunity.

The Ninth Circuit rejected that claim. The court noted that the Supreme Court ruled in Lapides v. Bd. of Regents of Univ. Sys. of Georgia that a state waives Eleventh Amendment immunity when it removes state law claims for which it waived immunity in state court. It further noted that it (the Ninth Circuit) extended Lapides so that a state waives Eleventh Amendment immunity when it removes federal law claims for which Congress validly abrogated state sovereign immunity. Then it said the same reasoning justifies extending waiver-by-removal to any federal claims (congressional abrogation or not). In so ruling, the Court quoted Lapides:

It would seem anomalous or inconsistent for a State both (1) to invoke federal jurisdiction, thereby contending that the "Judicial power of the United States" extends to the case at hand, and (2) to claim Eleventh Amendment immunity, thereby denying that the "Judicial Power of the United States" extends to the case at hand.

The ruling means that the plaintiffs' FLSA case, now in federal court, can move forward.

October 17, 2019 in Cases and Case Materials, Eleventh Amendment, Federalism, News, Opinion Analysis | Permalink | Comments (0)

Saturday, October 12, 2019

Court Strikes President's Reprogramming Federal Funds for Border Wall

Judge David Briones (W.D. Texas) ruled on Friday that President Trump's effort to reprogram federal funds in the name of a "national emergency" to build a border wall exceeded his authority under the Consolidated Appropriations Act of 2019. The ruling further invites the plaintiffs to file for a preliminary injunction to halt the reprogramming.

The ruling deals a substantial blow to President Trump in his effort to shift around money to pay for his border wall. Still, this isn't the end of this case: it'll surely be appealed.

We last posted on these issues here.

The case arose when El Paso County and Border Network for Human Rights sued President Trump to halt reprogramming under his national emergency declaration. Upon declaring the emergency, President Trump ordered the relevant secretaries to reprogram $2.5 billion of Defense Department funds appropriated for Support for Counterdrug Activities under 10 U.S.C. Sec. 284, and $3.6 billion of DOD funds appropriated for "military construction projects" under 10 U.S.C. Sec. 2808. The plaintiffs argued, among other things, that the order violated the 2019 CAA. The court agreed.

The court first ruled that the plaintiffs had standing. It wrote that El Paso was the target location for the new wall, that it suffered a reputational injury (in President Trump's statements about how dangerous it is), and that it suffered economic harm--all because of President Trump's order, and which would be redressed by a favorable ruling. It held that BNHR had standing, too, because it spent significant resources to respond to President Trump's actions that would have gone to support its regular activities. The court ruled that the plaintiffs had standing to sue under Section 2808, because the government took steps to fund the construction of a wall.

As to the CAA, the court held that the reprogramming violates the plain terms of the CAA:

the CAA specifically appropriates $1.375 billion for border-wall expenditures and requires those expenditures to be made on "construction . . . in the Rio Grande Valley Sector" alone. Defendants' funding plan, by contrast, will transfer $6.1 billion of funds appropriated for other more general purposes--military construction, under Section 2808, and counterdrug activities, under Section 284. Their plan therefore flouts the cardinal principle that a specific statute controls a general one and violates the CAA.

In addition, the court said that the proclamation violates Section 739 of the CAA, which provides

None of the funds made available in this or any other appropriations Act may be used to increase . . . funding for a program, project, or activity as proposed in the President's budget request for a fiscal year until such proposed change is subsequently enacted in an appropriation Act, or unless such change is made pursuant to the reprogramming or transfer provisions of this or any other appropriations Act.

The court explained: "Section 739 prohibits Defendants' plan to fund the border wall because the plan is barred by that provision's general rule and the plan does not fall within its exception," because neither Section 2808 nor Section 284 is an appropriations act.

Although the ruling grants summary judgment to the plaintiffs on these issues, it does not grant a preliminary injunction. "Defendants have countered that Plaintiffs cannot obtain equitable relief against the President. The Court has requested additional briefing on this issue and will reserve judgment in this regard for a later date."

In light of the Supreme Court's ruling this summer staying a permanent injunction because the government showed that the plaintiffs had no cause of action to challenge a Section 8005 transfer, the ruling says nothing about the government's Section 8005 authority to reprogram funds for Section 284 counterdrug activities. It also says nothing about reprogramming Treasury Forfeiture Funds.

October 12, 2019 in Cases and Case Materials, Congressional Authority, Executive Authority, News, Opinion Analysis, Separation of Powers, Standing | Permalink | Comments (0)

Friday, October 11, 2019

D.C. Circuit Says House Can Subpoena Mazars for Trump Financial Records

The D.C. Circuit ruled today that the House Committee on Oversight and Reform acted within its powers, and not in violation of the Constitution, when it issued a subpoena to Mazars USA, LLP, for records related to work performed by President Trump and his business entities both before and after he took office.

The ruling deals a sharp blow to President Trump and his efforts to shield his financial records. But the D.C. Circuit probably won't have the last say: this seems destined for the Supreme Court.

We previously posted on the case here and on a related case here.

The case arose when the Committee subpoenaed Mazars for the records. President Trump sued to stop Mazars from releasing them, and the Justice Department filed an amicus brief on the side of the President.

The court flatly rejected the President's novel claims that the subpoena exceeded the Committee's authority and violated the Constitution. In particular, the court held that the subpoena was not an invalid exercise of law-enforcement (as opposed to legislative) power, because the Committee's explanation for the subpoena on its face stated a valid legislative purpose--to inform "multiple laws and legislative proposals under [the Committee's] jurisdiction." Moreover, the court noted that the House actually has pending legislation related to the subpoena, thus underscoring the legislative character of the subpoena, even though this isn't required.

The court held next that the subpoena has a valid legislative purpose. The court wrote that the subpoena could serve ethics and financial disclosure laws that apply to the President.

The court wrote that the subpoena's reach--seeking information before the President was elected and before he even announced his candidacy--fell within Congress's legislative power, because it could consider legislation requiring a President to disclose financial information going back before a President takes office.

Judge Rao dissented. She argued that the subpoena serves only the Committee's interest in determining "whether the President broke the law"; that the Committee can only take up this kind of law-enforcement function in the context of an impeachment; and that because the subpoena was issued outside of an impeachment proceeding, it is therefore invalid:

The majority breaks new ground when it determines Congress is investigating allegations of illegal conduct against the President, yet nonetheless upholds the subpoena as part of the legislative power. The Committee on Oversight and Reform has consistently maintained that it seeks to determine whether the President broke the law, but it has not invoked Congress's impeachment power to support this subpoena. When Congress seeks information about the President's wrongdoing, it does not matter whether the investigation also has a legislative purpose. Investigations of impeachable offenses simply are not, and never have been, within Congress's legislative power. Throughout history, Congress, the President, and the courts have insisted upon maintaining the separation between the legislative and impeachment powers of the House and recognized the gravity and accountability that follow impeachment. Allowing the Committee to issue this subpoena for legislative purposes would turn Congress into a roving inquisition over a co-equal branch of government.

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

Tuesday, October 8, 2019

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

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.

October 8, 2019 in Congressional Authority, Courts and Judging, Executive Authority, Jurisdiction of Federal Courts, News, Political Question Doctrine, Separation of Powers | Permalink | Comments (0)

Monday, October 7, 2019

District Court Tosses Trump Suit to Protect Taxes

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.

October 7, 2019 in Cases and Case Materials, Courts and Judging, Executive Authority, Federalism, Jurisdiction of Federal Courts, News, Opinion Analysis | Permalink | Comments (0)

Wednesday, October 2, 2019

District Court Halts Enforcement of California Law Requiring Presidential Candidates to Release Taxes

Judge Morrison C. England, Jr., (E.D. Cal.) granted President Trump's motion for a preliminary injunction yesterday and halted enforcement of California's new requirement that presidential primary candidates file their income tax returns with the state before gaining a place on the primary ballot.

The ruling puts a temporary stop to California's effort to press President Trump to reveal his tax returns.

The case tests California's requirement that candidates in the California primary election for president file their tax returns with the state before the state will list them on the ballot. Here's the measure:

Notwithstanding any other law, the Secretary of State shall not print the name of a candidate for President of the United States on a primary election ballot, unless the candidate, at least 98 days before the presidential primary election, files with the Secretary of State copies of every income tax return the candidate filed with the Internal Revenue Service in the five most recent taxable years.

California said that it adopted the measure in order to help its voters make an informed choice among candidates in the primary election. But it was pretty clearly a blunt effort to force President Trump to file his tax returns, which the state could then make public.

The court ruled that the requirement likely violated the Article II Qualifications Clause, the First Amendment, and the Equal Protection Clause.

As to Qualifications, the court drew on U.S. Term Limits, Inc. v. Thornton, where the Court struck Arkansas's effort to impose term limits on its members of Congress. The Court in Thornton ruled that the state's term limits impermissibly added a qualification to its members of Congress over and above the minimum qualifications set in the Article I Qualifications Clause. Judge England ruled that the same principle applies to a state's additional qualifications over and above the minimums set in the Article II Qualifications Clause, and that California's requirement amounts to just such an additional qualification.

As to the First Amendment, Judge England held that California's requirement amounts to a "severe restriction" on the right to access the ballot, the right to political association, the right to vote, and the right to express political preferences. The court applied strict scrutiny and held that the requirement failed.

Finally, as to equal protection, Judge England held that the requirement impermissibly treated partisan primary candidates differently than independent candidates (who are not subject to the requirement). "The State lacks any valid interest in providing voters with more information about party-backed candidates than independent candidates, especially when such requirements can lead to the exclusion of only major party candidates on the ballot."

October 2, 2019 in Cases and Case Materials, Elections and Voting, Equal Protection, First Amendment, News, Opinion Analysis | Permalink | Comments (0)

Friday, September 27, 2019

Does Congress Have More Investigation Power in Impeachment Proceedings?

Three House committees together issued the first subpoena under the House's impeachment inquiry, notably citing the impeachment power (and not oversight power) as authority for the subpoena.

The subpoena is significant because the committees twice previously requested the exact same information citing the commitees' oversight authority. The administration ignored those requests. The new impeachment subpoena takes away the administration's arguments for stonewalling congressional inquiries under its oversight authority and may test whether Congress has more power when it engages in an impeachment than when it engages in regular oversight.

The subpoena, issued by the chairs of the House Foreign Affairs, Permanent Select Committee on Intelligence, and Oversight and Reform, is directed at Secretary of State Mike Pompeo. It seeks information related to President Trump's efforts to urge Ukraine to interfere with the 2020 election.

The subpoena letter begins, "Pursuant to the House of Representatives' impeachment inquiry . . . ."

The committee twice before asked for the same information, but citing only their oversight authority. Those requests are here and here.

The administration has now made a habit of ignoring congressional oversight requests, arguing that they (1) lack a legitimate legislative purpose, (2) violate its new and sweeping version of executive privilege, and (3) constitute law enforcement (not lawmaking) in violation of the separation of powers.

But by invoking the House's impeachment authority, the committee undermine those arguments (to the extent that they had any force in the first place). In an impeachment, there is no legislative purpose. Impeachment, as a significant constitutional check on the President, weighs stronger against a President's claim of executive privilege. And Congress is engaged in an impeachment inquiry, not law enforcement.

The administration will undoubtedly come up with constitutional arguments to ignore this latest subpoena, too. But the impeachment power seems to take away these three.

So: Does Congress have more authority when seeking information under its impeachment power? We don't know for sure. But Molly Reynolds and Margaret Taylor survey the arguments in this May 2019 piece over at Lawfare.

September 27, 2019 in Congressional Authority, Executive Authority, Executive Privilege, News, Separation of Powers | Permalink | Comments (0)

Wednesday, September 25, 2019

Impeachment Explained

With the news that the House of Representatives has launched an impeachment inquiry, many of us could use some explainers or refreshers on the rarely-used constitutional process of impeachment.

First, the Constitutional text. The United States Constitution provides for impeachment and removal of office for the President and other Executive officers in Article II §4:

The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.

The Constitution divides the power to impeach and the power to adjudicate impeachment between the chambers of Congress, with the House of Representatives having the power to impeach and the Senate having the power to adjudicate the impeachment and effect removal from office.

Article I §2 provides:

The House of Representatives shall chuse their Speaker and other Officers; and shall have the sole Power of Impeachment.

Article I §3 provides:

The Senate shall have the sole Power to try all Impeachments. When sitting for that Purpose, they shall be on Oath or Affirmation. When the President of the United States is tried, the Chief Justice shall preside: And no Person shall be convicted without the Concurrence of two thirds of the Members present.

Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States: but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.

The Constitution does not further detail the processes, but there is the precedent of previous impeachment processes, including those against Presidents Andrew Johnson, Richard Nixon, and William Clinton which were resolved at various stages and none of which led to conviction and removal. There is also the more frequent experience with judicial impeachments.

The Congressional Research Service has two excellent explainers on impeachment. First and of immediate interest is the report entitled The Impeachment Process in the House of Representatives.  It was updated August 2019, and although it is only 15 pages, it is an excellent and substantive discussion of the process and requirements.  A somewhat longer report from 2015 entitled Impeachment and Removal provides an overview including grounds for impeachment and trial in the Senate. As this report also notes, the question of impeachment has been held to be a nonjusticiable political question by the United States Supreme Court in Nixon v. United States, 506 U.S. 224 (1993), a case involving the impeachment of federal Judge Walter Nixon (not President Nixon, who resigned in 1974).

There have also been several good explainers in the media; here are a few:

Jennifer Haberkorn, Impeachment 101: How could Congress remove President Trump from office?, Los Angeles Times (May 30, 2019);

Ed Kilgore, The Impeachment Process Explained: What Happens to Trump Now?, New York Magazine (September 25, 2019);

Amber Phillips, What you need to know about the impeachment inquiry into Trump, Washington Post (September 25, 2019);

Charlie Savage, How the Impeachment Process Works, New York Times (September 24, 2019).

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September 25, 2019 in Congressional Authority, Current Affairs, Executive Authority, Executive Privilege, News | Permalink | Comments (0)

Tuesday, September 24, 2019

U.K. Supreme Court Unanimously Rules Suspension on Parliament Unlawful

In its opinion and judgment in R. (on behalf of Miller)  v. The Prime Minister and Cherry and others  v. Advocate General for Scotland, the U.K. Supreme Court considered whether "the advice given by the Prime Minister to Her Majesty the Queen on 27th or 28th August 2019 that Parliament should be prorogued from a date between 9th and 12th September until 14th October was lawful."  The Court's eleven Justices unanimously held it was not.

The prorogation or suspension of Parliament, as we discussed here and which the opinion discusses is the situation in which the Crown suspends Parliament, having both immediate and wider constitutional effects. After the Court's discussion of the events leading up to the prorogation, the Court articulated the issues:

1) Is the question of whether the Prime Minister’s advice to the Queen was lawful justiciable in a court of law?

(2) If it is, by what standard is its lawfulness to be judged?

(3) By that standard, was it lawful?

(4) If it was not, what remedy should the court grant?

The Court first held that the matter was justiciable: "although the courts cannot decide political questions, the fact that a legal dispute concerns the conduct of politicians, or arises from a matter of political controversy, has never been sufficient reason for the courts to refuse to consider it." However, the Court reasoned that to resolve  justiciability, the court must "determine whether the present case requires it to determine where a legal limit lies in relation to the power to prorogue Parliament, and whether the Prime Minister’s advice trespassed beyond that limit, or whether the present case concerns the lawfulness of a particular exercise of the power within its legal limits." This question is "closely related to the identification of the standard by reference to which the lawfulness of the Prime Minister’s advice is to be judged."

Turning to the standard, the Court discussed the U.K.'s "unwritten Constitution;"

Although the United Kingdom does not have a single document entitled “The Constitution”, it nevertheless possesses a Constitution, established over the course of our history by common law, statutes, conventions and practice. Since it has not been codified,it has developed pragmatically, and remains sufficiently flexible to be capable of further development. Nevertheless, it includes numerous principles of law, which are enforceable by the courts in the same way as other legal principles. In giving them effect, the courts have the responsibility of upholding the values and principles of our constitution and making them effective. It is their particular responsibility to determine the legal limits of the powers conferred on each branch of government, and to decide whether any exercise of power has transgressed those limits. The courts cannot shirk that responsibility merely on the ground that the question raised is political in tone or context.

The standard — the relevant limit upon the power to prorogue — was expressed by the Court as:

that a decision to prorogue Parliament (or to advise the monarch to prorogue Parliament) will be unlawful if the prorogation has the effect of frustrating or preventing, without reasonable justification, the ability of Parliament to carry out its constitutional functions as a legislature and as the body responsible for the supervision of the executive. In such a situation, the court will intervene if the effect is sufficiently serious to justify such an exceptional course.

Under that standard, it was clear that "the Prime Minister’s action had the effect of frustrating or preventing the constitutional role of Parliament in holding the Government to account," and this "was not a normal prorogation in the run-up to a Queen’s Speech." While the Court stated it would not inquire into the Prime Minister's motive, there must be a reason for his actions:

It is impossible for us to conclude, on the evidence which has been put before us, that there was any reason - let alone a good reason - to advise Her Majesty to prorogue Parliament for five weeks, from 9th or 12th September until 14th October. We cannot speculate, in the absence of further evidence, upon what such reasons might have been. It follows that the decision was unlawful.

As for remedy, the unlawfulness of the prorogation means that "Parliament has not been prorogued," so that "the Speaker of the House of Commons and the Lord Speaker can take immediate steps to enable each House to meet as soon as possible to decide upon a way forward."

The Court's opinion is a mere 25 pages, written in an accessible style despite its details and discussions of Seventeenth Century practices. ("The 17th century was a period of turmoil over the relationship between the Stuart kings and Parliament, which culminated in civil war. That political controversy did not deter the courts from holding, in the Case of Proclamations (1611) 12 Co Rep 74, that an attempt to alter the law of the land by the use of the Crown’s prerogative powers was unlawful." ).  

There is also a four page judgment summary. 

Additionally, the UK Supreme Court has made available the fifteen minute video of President of the Supreme Court, Lady Brenda Hale, delivering the summary of judgment. It's definitely worth a watch!

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September 24, 2019 in Comparative Constitutionalism, Courts and Judging, Current Affairs, International, News, Opinion Analysis, Separation of Powers | Permalink | Comments (0)