Wednesday, April 14, 2021

Full Sixth Circuit Rejects Facial Challenge to Ohio's Down Syndrome Abortion Restriction

The full Sixth Circuit rejected a facial challenge to Ohio's law that bans doctors from performing an abortion with the knowledge that the woman's reason for abortion is that the fetus has Down syndrome. The ruling means that the law stays on the books, but may be subject to as-applied challenges when it goes into effect.

The case, Preterm-Cleveland v. McCloud, tested Ohio's law that prohibits doctors from performing abortions when the doctor knows that the woman seeks an abortion because the fetus has Down syndrome. The court said that the law "advances the State's legitimate interests" in

protecting: (1) the Down syndrome community from the stigma associated with the practice of Down-syndrome-selective abortions, (2) pregnant women and their families from coercion by doctors who advocate abortion of Down-syndrome-afflicated fetuses, and (3) the integrity and ethics of the medical profession by preventing doctors from becoming witting participants in Down-syndrome-selective abortions.

The court also said that the law doesn't have "the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion." Here, the court emphasized that the law only prohibits a doctor from performing an abortion when the doctors knows that the woman seeks an abortion because the fetus has Down syndrome. The court asked, and answered:

Would any woman who is otherwise set on having an abortion choose not to have that abortion (and instead have the baby) solely because she could not have the abortion performed by the specific doctor to whom she desires to reveal (or has revealed) that her reason for the abortion is that she does not want a child with Down syndrome? Taking the next step, would a significant number of such women do so? We think the answer to both questions is clearly no, but more importantly, the plaintiffs have certainly made no such showing.

As to any accidental reveal, the court said that a woman would only have to go to a different doctor--one who didn't know of her purpose.

The court also declined to halt the law based on its lack of exception for the life or health of the woman. It said that the plaintiffs had to raise this claim in an as-applied challenge, not a facial one.

April 14, 2021 in Abortion, Cases and Case Materials, Due Process (Substantive), Fourteenth Amendment, News, Opinion Analysis | Permalink | Comments (0)

Ninth Circuit Denies Qualified Immunity for Judicial Deception Resulting in Minors' Medical Exams

The Ninth Circuit denied qualified immunity to two social workers who knowingly and falsely represented to a juvenile court that they had made reasonable efforts to notify parents about medical examinations of their children. The false representations led to court-ordered exams without the knowledge or consent of the parents. The ruling means that the parents' civil-rights suit against the social workers can move forward.

The case, Benavidez v. County of San Diego, arose when social workers falsely told a juvenile court, as part of child removal proceedings, that they had made reasonable efforts to notify the children's parents when they sought a court order for medical examinations of the children. Based on the social workers' false statements, the court ordered medical exams of the children. The parents only learned of the exams after they occurred.

The parents sued, arguing that the social workers violated their due process rights by deceiving the juvenile court in procuring the orders for medical exams. The social workers argued that they enjoyed qualified immunity. The Ninth Circuit disagreed.

The court ruled that "Plaintiffs' claims sufficiently alleged a violation of their constitutional right to family association, which 'includes the right of parents to make important medical decisions for their children, and of children to have those decisions made by their parents rather than the state.'" More particularly, the court said that "[w]e have previously recognized a constitutional right under the Due Process Clause of the Fourteenth Amendment to be free from judicial deception and fabrication of evidence in the context of civil child custody cases." The court ruled that the plaintiffs sufficiently pleaded facts to support a violation here.

The court went on to say that the right was well established at the time of the violation.

At the same time, the court rejected the plaintiffs' Monell claim for county liability. The court said that the plaintiffs failed to allege that county policy or the county's failure to train the social workers led to the violations. (County policy, in fact, required the social workers to obtain parental consent before the examination.)

April 14, 2021 in Cases and Case Materials, Courts and Judging, Due Process (Substantive), News, Opinion Analysis | Permalink | Comments (0)

Tuesday, April 13, 2021

D.C. Circuit Effectively Erases Judicial Review of FEC Nonenforcement

The D.C. Circuit ruled on Friday that a private party can't challenge an Federal Election Commission decision not to enforce election law if the decision was based in any measure on agency discretion. The ruling effectively gives commissioners who successfully oppose enforcement action a get-out-of-judicial-review card simply by invoking discretion as any part of their explanation for not enforcing the law. The ruling also adds to the structural features that have paralyzed the FEC. (The FEC is comprised of six commissions, no more than three of either major political party. But it requires four votes to initiate an enforcement action. Partisan deadlock and quorum issues have created an impotent agency. This ruling only adds to those features, because it allows commissioners who vote against enforcement to insulate their decision simply by mentioning "discretion.")

The case, CREW v. FEC, arose when CREW sued the FEC for deciding not to enforce election law against New Models, a now-defunct non-profit. CREW filed a complaint against New Models for failing to comply with FECA's registration and reporting requirements for "political committees." But the FEC, by a 2-2 vote, decided not to pursue an investigation. The two commissioners who voted against an investigation wrote a 31-page, single-spaced opinion explaining their legal reasons why New Models wasn't a "political committee" under FECA. They added a final sentence, "For these reasons, and in exercise of our prosecutorial discretion, we voted against finding reason to believe that New Models violated the Act . . . ." (The commissioners dropped a footnote to their reference to "prosecutorial discretion" with a brief explanation: "Given the age of the activity and the fact that the organization appears no longer active, proceeding further would not be an appropriate use of Commission resources.")

CREW sued under FECA's provision that authorizes a private suit to challenge an FEC nonenforcement decision if it is "contrary to law." The D.C. Circuit ruled that the court couldn't review the decision, though, because it was "based even in part on prosecutorial discretion."

The court said that the ruling was a simple application of its previous ruling in Commission on Hope. In that case, the court said that under Heckler v. Chaney it couldn't review an FEC nonenforcement decision based on agency discretion. (Discretion formed a much more significant portion of the justification for nonenforcement in Commission on Hope, however.) It also said that FECA doesn't contain any standards for a court to judge an FEC decision based on discretion.

Judge Millett wrote a lengthy dissent, arguing that "the majority opinion creates an easy and automatic 'get out of judicial review free' card for the Federal Election Commission."

April 13, 2021 in Cases and Case Materials, Congressional Authority, Courts and Judging, Executive Authority, News, Opinion Analysis, Separation of Powers | Permalink | Comments (0)

Monday, April 12, 2021

Seventh Circuit Says Governor Can Limit Media Access to Press Conferences

The Seventh Circuit ruled on Friday that a state governor can limit media access to press conferences, so long as the limits are reasonable and viewpoint neutral. The ruling rebuffs the plaintiffs' challenges and allows the governor to continue to limited access to press conferences based on viewpoint neutral criteria.

The case, MacIver Institute for Public Policy v. Evers, arose when Wisconsin Governor Tony Evers prevented two reporters from the MacIver Institute from attending his limited-access press conferences. Evers restricted access based on a set of criteria that included things like the length of time that a media outlet has published news, whether a media outlet is a periodical or has an established television or radio presence, whether the reporters are paid or full-time correspondents, and whether the reporters and media outlet are "bona fide" and "of repute in their profession," among other similar criteria. The Institute sued, arguing that free speech and free press guaranteed a right to equal access for all media.

The court rejected the Institute's challenge. It ruled that the governor's limited-access press conferences were "nonpublic" forums, and that the governor permissibly limited access based on criteria that had nothing to do with a media outlet's viewpoint. Moreover, the court noted that the Institute provided no evidence that Evers applied the viewpoint neutral criteria in a viewpoint-based way. The court noted that under the governor's viewpoint-neutral criteria, the governor allowed access to a variety of media across the range of political ideologies, and that the governor similarly disallowed access to a variety of media across the range of political ideologies.

 

April 12, 2021 in Cases and Case Materials, First Amendment, News, Opinion Analysis, Speech | Permalink | Comments (0)

Supreme Court Halts California's At-Home COVID Restriction Pending Appeal

The Supreme Court on Friday granted a motion to enjoin California's at-home COVID restrictions pending appeal at the Ninth Circuit. (The Ninth Circuit previously denied the same motion.) The ruling means that California cannot apply its restriction on at-home religious gatherings to three households to the plaintiffs, at least for now (though likely forever).

The Court compared the state's treatment of private, at-home religious gatherings (restricted to three households) with its treatment of "hair salons, retail stores, personal care services, movie theaters, private suites at sporting events and concerts, and indoor restaurants" (allowing more than three households at a time). The Court said that the different treatment meant that the state had to justify its at-home restrictions under strict scrutiny as to these plaintiffs--and that it couldn't.

Justice Kagan, joined by Justices Breyer and Sotomayor, dissented. Justice Kagan wrote that the Court looked to the wrong comparators:

California limits religious gatherings in homes to three households. If the State also limits all secular gatherings in homes to three households, it has complied with the First Amendment. And the State does exactly that: It has adopted a blanket restriction on at-home gatherings of all kinds, religious and secular alike. California need not, as the per curiam insists, treat at-home religious gatherings the same as hardware stores and hair salons--and thus unlike at-home secular gatherings, the obvious comparator here.

She also argued that the state had good reason to treat at-home gatherings differently than gatherings in stores and salons: the district court found, and the Ninth Circuit acknowledged, that "those activities do pose lesser risks . . . ."

Chief Justice Roberts would've denied the motion, although he did not join Justice Kagan's dissent.

April 12, 2021 in Cases and Case Materials, First Amendment, Free Exercise Clause, News, Opinion Analysis, Religion | Permalink | Comments (0)

Wednesday, March 31, 2021

Ninth Circuit Rebuffs Plaintiffs' Effort to Halt California's COVID Restrictions Based on Free Exercise

The Ninth Circuit yesterday denied plaintiffs' motion for an emergency injunction pending appeal to halt California's COVID restrictions as applied to their religious practices, among other claims. The ruling means that California's restrictions stay in place, at least for now.

The case raises, once again, the question of the relevant comparator in determining whether the restrictions are neutral with regard to religion, or whether they target religion.

The plaintiffs challenged California's restrictions on private "gatherings" as applied to their in-home religious studies. Under the state's restrictions, indoor and outdoor gatherings are limited to three households; and gatherings must be held in a large enough space to allow distancing of six feet, they must last no longer than two hours, and attendees must wear face coverings. Singing, chanting, shouting, and cheering are allowed at outdoor gatherings, but not indoor gatherings.

The plaintiffs argued that the restrictions prevent them from holding in-home Bible studies and communal worship with more than three households, even though California allows more than three households to engage in certain commercial activities. They said that this amounts to religious targeting, triggering strict scrutiny.

The court rejected the argument. The court said that the plaintiffs were looking to the wrong class of activities to compare: "When compared to analogous secular in-home private gatherings, the State's restrictions on in-home private religious gatherings are neutral and generally applicable and, thus, subject to rational basis review." The court said that "[t]here is no indication that the State is applying the restrictions to in-home private religious gatherings any differently than to in-home private secular gatherings." As to the restrictions' application to small businesses and commercial activities (like barbershops and tattoo parlors), the court acknowledged that these businesses are not subject to the three-household restriction, but noted that they're subject to a host of other restrictions that are directed to the particular, place-specific risks that they raise.

Judge Bumatay dissented, arguing that the state's restrictions target religion, because they don't apply equally to small businesses and commercial activities (again, like barbershops and tattoo parlors). Judge Bumatay would therefore apply strict scrutiny, rule that the plaintiffs showed that they'd likely succeed on the merits, and enjoin the restrictions.

March 31, 2021 in Cases and Case Materials, Free Exercise Clause, News, Opinion Analysis | Permalink | Comments (0)

Saturday, March 27, 2021

Court Says a Shooting by Police is a Seizure, even if victim gets away

The Supreme Court ruled this week that a shooting by police officers is a "seizure" under the Fourth Amendment, even if the victim of the shooting escapes. The ruling is consistent with the holding in California v. Hodari D., a 1991 opinion authored by Justice Scalia. But the Court said that it didn't need to determine whether Hodari D. controlled, because the Court independently came to the same conclusion here.

The ruling doesn't end the case, though; it just allows it to move forward. The lower courts will still have to determine whether the seizure was "reasonable," whether the officers are entitled to qualified immunity, and what damages the plaintiff is entitled to.

The case, Torres v. Madrid, arose when officers shot at Roxanne Torres as she fled in her vehicle. (Torres sped away from the officers because she thought they were trying to carjack her.) The officers hit Torres, but she continued driving for 75 miles. She was airlifted to a hospital, where police arrested her the next day.

Torres sued the officers for unreasonably "seizing" her in violation of the Fourth Amendment. The officers argued that their shots couldn't have amounted to a seizure, because she got away.

The Court agreed with Torres. Chief Justice Roberts wrote for the Court that "[a]t the adoption of the Fourth Amendment, a 'seizure' was the 'act of taking by warrant' or 'of laying hold on suddenly'--for example, when an 'officer seizes a thief,'" but that it didn't "necessarily result in actual control or detention." The Court noted that at English common law "a corporal touch [was] sufficient to constitute an arrest, even though the defendant do[es] not submit." It said that "[e]arly American courts adopted this mere-touch rule . . . just as they embraced other common law principles of searches and seizures." (The Court went on to say that a touch must "objectively manifest[] an intent to restrain," that it's not measured from the perspective of the seized person, and that it a seizure "lasts only as long as the application of force.") It held that the officers' bullets constituted just such a "touch," and therefore constituted a Fourth Amendment seizure.

Justice Gorsuch dissented, joined by Justices Thomas and Alito. He argued that "[u]ntil today, a Fourth Amendment 'seizure' has required taking possession of someone or something," and that this didn't occur here.

Justice Barrett did not participate.

March 27, 2021 in Cases and Case Materials, Fourth Amendment, News, Opinion Analysis | Permalink | Comments (1)

Court Says Plaintiffs Can Sue Ford Where Torts Occurred

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

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

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

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

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

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

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

March 27, 2021 in Cases and Case Materials, Courts and Judging, Jurisdiction of Federal Courts, News, Opinion Analysis | Permalink | Comments (0)

Wednesday, March 17, 2021

Seventh Circuit Strikes Indiana's Parental Notification Bypass for Minors' Abortion, Again

The Seventh Circuit ruled last week that Indiana's amended judicial bypass procedure violated the right to an abortion for minors. The court earlier ruled on the case (and struck the same amended bypass procedure), but the Supreme Court vacated that judgment and remanded the case in light of the Court's ruling last summer in June Medical. Last week, the Seventh Circuit came to the same result.

The case, Planned Parenthood v. Box, challenged Indiana's judicial bypass procedure. As amended, that procedure required a court to notify a minor's parents when the minor sought an abortion through judicial bypass of the state's parental-consent requirement, unless the judge finds that parental notification is not in the minor's best interest.

The district court originally ruled that the procedure created an undue burden on a minor's right to an abortion. The Seventh Circuit affirmed. The appeals court applied the balancing test from Whole Women's Health, the 2016 Supreme Court case that struck Texas's admitting-privileges requirement. (Under the requirement, abortion doctors had to have admitting privileges at a hospital within 30 miles of the place where they performed abortions.) The Court in Whole Women's Health assessed whether the admitting-privileges requirement created an undue burden by balancing the burdens of the requirement on a woman's right to an abortion against the putative benefits of the requirement. It held that the requirement created substantial burdens, but no benefits. The Seventh Circuit similarly ruled that Indiana's judicial bypass procedure created substantial burdens, but no benefits. (The plaintiffs demonstrated that the procedure would create burdens on access, while the state failed to produce any evidence of benefits of the law.)

Then, last summer, the Supreme Court ruled in June Medical that Louisiana's admitting-privilege requirement (the same as Texas's requirement, struck in Whole Women's Health) also created an undue burden on a woman's right to an abortion. But the Court in June Medical split differently than in Whole Women's Health, because Justice Kavanaugh had replaced Justice Kennedy. (Justice Kennedy sided with the majority in Whole Women's Health, but Justice Kavanaugh sided with the dissent in June Medical.) In particular, Justice Breyer wrote for a four-justice plurality (including Justices Ginsburg, Sotomayor, and Kagan) that Louisiana's law was unconstitutional for two reasons: stare decisis (because Louisiana's law was the same as Texas's law, struck in Whole Women's Health); and because the burdens of Louisiana's law outweighed the benefits, thus creating an undue burden under the Whole Women's Health balancing approach. Chief Justice Roberts concurred in the judgment based on stare decisis alone. But he also disagreed with the balancing approach. Justices Thomas, Alito, Gorsuch, and Kavanaugh wrote their own separate dissents.

The Court vacated the earlier Seventh Circuit ruling and remanded it for considering in light of June Medical. So the Seventh Circuit had to figure out whether June Medical changed the balancing test from Whole Women's Health that the Seventh Circuit had previously relied upon to strike Indiana's bypass procedure.

The Seventh Circuit last week ruled that June Medical did not change the balancing test. Under the Marks rule (which sorts out which opinion states the holding of the Court when, as in June Medical, there's no majority opinion), the court looked to Chief Justice Roberts's concurrence in June Medical as the "position taken by those Members who concurred in the judgment on the narrowest grounds." The Seventh Circuit held that Chief Justice Roberts's stare decisis rationale aligned with Justice Breyer's stare decisis rationale as the holding of the Court, and that the Court didn't otherwise alter or overrule the balancing approach in Whole Women's Health. (The court rejected the state's argument that Chief Justice Roberts's second rationale (that the balancing approach was wrong) aligned with the four dissenters' positions (also that the balancing approach was wrong) to create a majority that the balancing approach was wrong. The court explained that Chief Justice Roberts's second rationale (that the balancing approach was wrong) was dicta, and that under Marks the June Medical dissents (which also took issue with the balancing approach) don't count.)

The court said that because the balancing approach under Whole Women's Health was still the law, Indiana's bypass procedure still violated it.

Judge Kane dissented, arguing that under Marks Chief Justice Roberts's opinion in June Medical aligned with the plurality on a "substantial obstacle" test (without balancing, and not merely on stare decisis), and that Indiana's bypass procedure did not violate that "substantial obstacle" test.

March 17, 2021 in Abortion, Cases and Case Materials, Courts and Judging, News, Opinion Analysis | Permalink | Comments (0)

Monday, March 15, 2021

Court Says Request for Nominal Damages is Enough for Standing

The Supreme Court ruled last week that a plaintiff's request for nominal damages is sufficient to satisfy standing requirements and keep the case moving forward. The ruling is a significant win for the plaintiffs in the case, and for civil-rights plaintiffs generally; but it says nothing on the merits of the plaintiffs' claim. Instead, the Court remanded the case for further proceedings.

The case, Uzuegbunam v. Presczewski, arose when a couple of students at Georgia Gwinnett College tried to engage fellow students and distribute religious literature in the school's free-speech zone. Campus officers stopped them, however, citing campus policy that prohibits speech that "disturbs the peace and/or comfort of person(s)." The plaintiffs sued College officials for injunctive relief and nominal damages. (Civil-rights plaintiffs often request nominal damages, $1.00, when their harm can't be quantified.) Rather than defending the policy on the merits, the College changed it, and moved to dismiss the case, arguing that the students' claim for injunctive relief was now moot, and that the students lacked standing based on their sole remaining claim for nominal damages.

The Court disagreed. Justice Thomas wrote for the 8-1 Court that a plaintiff continues to have standing to sue even when the plaintiff seeks only nominal damages. Justice Thomas said that courts at common law recognized suits for nominal damages, and that the common law did not require a plaintiff to seek compensatory damages in order to claim nominal damages.

Chief Justice Roberts was the lone dissenter. He argued that the plaintiffs lacked standing because "an award of nominal damages does not alleviate the harms suffered by a plaintiff, and is not intended to." More, "If nominal damages can preserve a live controversy, then federal courts will be required to give advisory opinions whenever a plaintiff tacks on a request for a dollar."

The case now goes back to the district court for further consideration. The Court said that one plaintiff--the one who actually spoke--stated a cognizable injury that could be redressed with nominal damages. If that plaintiff meets other all other requirements, his case will go to the merits. But the Court instructed the district court to consider whether the other plaintiff--the one who didn't speak, and only alleged that he was deterred from speaking--suffered a constitutional violation.

March 15, 2021 in Cases and Case Materials, Courts and Judging, News, Opinion Analysis, Standing | Permalink | Comments (0)

Friday, January 1, 2021

Court Kicks Gohmert's Election Case Against Pence

Judge Jeremy D. Kernodle (E.D. Tx.) dismissed the lawsuit headed by Representative Louie Gohmert against Vice President Mike Pence to throw the 2020 presidential election.

The ruling in the frivolous case was not unexpected. 

The case arose when Gohmert and self-appointed Trump electors from Arizona sued VP Pence, arguing that the Electoral Count Act violates the Electors Clause and the Twelfth Amendment, and that Pence has authority to determine which slate of electors to accept when he presides over the congressional count of electoral votes on January 6. The, er, novel argument turns on the plaintiffs', um, creative reading of the Electors Clause, the Twelfth Amendment, and the Electoral Count Act.

Start with the Electors Clause. It says that "[e]ach State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors . . . ." 

Next, the Twelfth Amendment. It says that each state's electors meet in their respective states and vote for President and VP. The electors then transmit their votes to the President of the Senate, the VP. "The President of the Senate shall, in the presence of the Senate and House of Representatives, open all the certificates and the votes shall then be counted." The candidate winning the majority of electoral votes wins. But if no candidate gets a majority, the House selects the President, with each state delegation receiving one vote. 

Finally, the Electoral Count Act. It says that Congress must count the votes in a joint session on January 6, with the VP presiding. It says that the executive in each state shall certify the electors to the Archivist of the United States, who then transmits the certificates to Congress. It says that a state's determination of their electors is "conclusive" if the state resolved all disputes over the election pursuant to state law at least 6 days before the electors meet. (This is called the "safe harbor" date.) Under the Act, if at least one Member of the House of Representatives and one Senator objects to a state's elector votes, the House and Senate meet in separate sessions and vote on the objection--by members, not state delegations.

Arizona, Georgia, Pennsylvania, Michigan, and Wisconsin all certified their electors to President-Elect Biden and VP-Elect Harris, pursuant to state law and the Electoral Count Act. The governors certified the electors to the Archivist. 

But then Trump electors in those states met and, without any legal authority, self-certified their votes to President Trump and VP Pence. 

The plaintiffs contend that the self-appointed Trump electors created a competing slate of electors in each of these states. (They did not. The "Trump electors" named themselves electors without any legal authority and contrary to state law in each state.) They argue that "provisions . . . of the Electoral Count Act are unconstitutional insofar as they establish procedures for determining which of two or more competing slates of Presidential Electors for a given State are to be counted in the Electoral College, or how objections to a proffered slate are adjudicated, that violate the Twelfth Amendment."

In particular, they argue that the states appointed Biden electors in violation of the Electors Clause, because the state governors and secretaries of state certified those electors, even though the Electors Clause specifies that this is a function for the legislature. (In fact, the legislatures in each of those states already determined the manner of appointing electors by enacting state law that awards electors to the majority winner of the popular vote in those states.) 

Moreover, they argue that the dispute-resolution procedure in the Electoral Count Act "limits or eliminates [the VP's] exclusive authority and sole discretion under the Twelfth Amendment to determine which slates of electors for a State, or neither, may be counted." (In fact, the Twelfth Amendment does not give this authority to the VP. The VP's role is ceremonial, simply to read and count the certified results from each state.)

Finally, they argue that the dispute-resolution procedure in the Electoral Count Act "replaces the Twelfth Amendment's dispute resolution procedure--under which the House of Representatives has sole authority to choose the President." (In fact, the Twelfth Amendment dispute resolution procedure only applies when no candidate won a majority of electoral votes. The Electoral Count Act procedure applies when a member of both Houses objects to a state's slate of electors. Those are different dispute resolution processes, to be sure, but for very different kinds of dispute.) 

The plaintiffs asked the court to hold that the VP has "exclusive authority and sole discretion in determining which electoral votes to count for a given State." 

But the court ruled that the plaintiffs lacked standing. It said that Gohmert lacked standing, because he asserted only an institutional harm (to the House), and not a personal harm. "Congressman Gohmert's alleged injury is 'a type of institutional injury (the diminution of legislative power), which necessarily damages all Members of Congress.'" It said that the Trump "electors" lacked standing, because any alleged injury that they suffered was not created by VP Pence, the defendant. Moreover, it said that both Gohmert and the Trump "electors" failed to show that their requested relief (an order that VP Pence has exclusive discretion to determine which electoral votes to count) would redress their injuries, because VP Pence might not determine the electoral votes in their favor. 

The plaintiffs vowed to appeal. But don't expect this case to go anywhere . . . on standing, or on the merits.

January 1, 2021 in Cases and Case Materials, Congressional Authority, Courts and Judging, Elections and Voting, Federalism, News, Opinion Analysis, Standing | Permalink | Comments (0)

Wednesday, December 30, 2020

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

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

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

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

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

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

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

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

Judge Ginsburg dissented:

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

December 30, 2020 in Congressional Authority, Courts and Judging, Jurisdiction of Federal Courts, News, Opinion Analysis, Separation of Powers | Permalink | Comments (0)

Friday, December 18, 2020

Court Rebuffs Census Challenge

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

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

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

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

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

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

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

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

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

December 18, 2020 in Cases and Case Materials, Executive Authority, Jurisdiction of Federal Courts, News, Opinion Analysis, Ripeness, Separation of Powers, Standing | Permalink | Comments (0)

Court Rebuffs Religious School Challenge to State School Closing Order

The Supreme Court yesterday rejected a religious private school's challenge to Kentucky's school-closing order, at least for now, given that the order is set to expire shortly. But the move allows the religious school to renew its challenge should the order come back into effect in January.

The action differs from another Court action earlier this week, remanding a case that challenges Colorado's capacity restrictions as applied to religious services. In the Colorado case, the Court's action, taken together with its earlier ruling in a New York case, will probably end the state's restrictions--even though the state had already revoked its restriction (in light of the New York case). In other words, the Court seemed to stretch to effectively strike Colorado's restrictions. In the Kentucky case, in contrast, the Court declined to intervene because the restriction is set to expire soon. In other words, the Court stayed its hand, even though the restriction was in place at the time of the ruling, because it would soon expire. 

The case tests Kentucky's school-closing order--an order that applies to all schools (secular and religious) in the state. A religious school challenged the order, arguing that it violated the Free Exercise Clause, because a companion order permitted other in-person activities (restaurants, bars, gyms, movie theaters, indoor weddings, bowling alleys, and gaming halls) to remain open. (This, even though the order treated all schools alike.) A district court issued a preliminary injunction against the school closing order, but the Sixth Circuit stayed the injunction pending appeal (so that the order remained valid as the religious school appealed). The Supreme Court denied the religious school's petition to vacate the stay, largely or entirely because it's set to expire soon.

The Court said "[u]nder all circumstances, especially the timing and the impending expiration of the Order, we deny the application without prejudice to the applicants or other parties seeking a new preliminary injunction if the Governor issues a school-closing order that applies in the new year."

Justices Alito and Gorsuch wrote separate dissents, but joined each other's. Justice Alito argued that the Court should've granted relief, because "timing is in no way the applicants' fault." Justice Gorsuch wrote that the Sixth Circuit failed to consider the school-closing order alongside the business-closing order--and therefore failed to compare the closed religious school to open businesses---in evaluating whether the two orders together discriminated against religion. He also argued that the Sixth Circuit failed to consider a "hybrid" claim, that the school-closing order also violated the fundamental right of parents "to direct the education of their children."

December 18, 2020 in Cases and Case Materials, First Amendment, News, Opinion Analysis, Religion | Permalink | Comments (0)

Monday, December 14, 2020

Court Says RFRA Authorizes Money Damages Against Fed Officials in their Individual Capacities

The Supreme Court ruled on Friday that the Religious Freedom Restoration Act authorizes plaintiffs, when appropriate, to obtain monetary damages against federal officials in their individual capacities. 

The case, Tanzin v. Tanvir, tested the limits of RFRA's remedies. The plaintiffs are Muslims who sued federal officers under RFRA for putting them on the No Fly list in retaliation for refusing to act as informants against their religious communities. The plaintiffs sued for injunctive relief and monetary damages under RFRA's remedies provision. The government argued that RFRA didn't authorize monetary damages against federal officials.

The Supreme Court disagreed. Justice Thomas wrote for a unanimous Court (except Justice Barrett, who did not participate). He noted that RFRA's remedies provision says that a person may sue and "obtain appropriate relief against a government," and that RFRA defines "government" to include "a branch, department, agency, instrumentality, and official (or other person acting under color of law) of the United States." Justice Thomas wrote that "official" means an actual person (and not just an office), and that the "acting under color of law" language drew on language from 42 U.S.C. Sec. 1983. That provision authorizes monetary damages against state officials in their individual capacities for violations of the federal Constitution and law. "Because RFRA uses the same terminology as Section 1983 in the very same field of civil rights law, 'it is reasonable to believe that the terminology bears a consistent meaning.'"

Justice Thomas went on to write that monetary damages are "appropriate relief," because "damages have long been awarded as appropriate relief" in suits against government officials. He said that monetary damages were particularly appropriate in a case like this, where only monetary damages could remedy a violation.

He rejected the government's argument that this reading would raise separation-of-powers concerns. "But this exact remedy has coexisted with our constitutional system since the dawn of the Republic. To be sure, there may be policy reasons why Congress may wish to shield Government employees from personal liability, and Congress is free to do so. But there is no constitutional reason why we must do so in its stead."

December 14, 2020 in Cases and Case Materials, News, Opinion Analysis | Permalink | Comments (0)

Court Upholds State Pharmacy Reimbursement Regulation Against ERISA Preemption Claim

The Supreme Court on Friday upheld Arkansas's law regulating the price that pharmacy benefit managers reimburse pharmacies for the cost of drugs covered by drug-prescription plans against an ERISA preemption challenge. The ruling leaves Arkansas's law in place.

The case, Rutledge v. Pharmaceutical Care Management Association, tested Arkansas's Act 900. That Act requires pharmacy benefit managers (PBMs, who act as intermediaries between prescription-drug plans and pharmacies that use them) to reimburse pharmacies (under the PBMs' maximum allowable cost schedules) at or above the rate that pharmacies paid to buy the drug from a wholesaler. The law was designed to ensure that pharmacies, particularly rural and independent pharmacies, could cover their costs and stay in business.

A national trade association of PBMs sued, arguing that the provision was preempted by the federal Employee Retirement Income Security Act. ERISA pre-empts "any and all State laws insofar as they may not or hereafter relate to any employee benefit plan" covered by ERISA.

The Supreme Court disagreed. Justice Sotomayor wrote for a unanimous Court (except Justice Barrett, who did not participate) that "ERISA does not pre-empt state rate regulations that merely increase costs or alter incentives for ERISA plans without forcing plans to adopt any particular scheme of substantive coverage." She said that Act 900, which is "merely a form of cost regulation," is just such a plan. Moreover, she said that Act 900 doesn't "refer to" ERISA, because it doesn't "act[] immediately and exclusively upon ERISA plans or where the existence of ERISA plans is essential to the law's operation." In short, "it applies to PBMs whether or not they manage an ERISA plan." 

Justice Thomas concurred, and wrote separately to again express "doubt" as to "our ERISA pre-emption jurisprudence." 

December 14, 2020 in Cases and Case Materials, Federalism, News, Opinion Analysis, Preemption | Permalink | Comments (0)

Saturday, December 12, 2020

SCOTUS Rebuffs Texas's Challenge to Battleground State Election Results

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

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

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

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

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

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

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

December 12, 2020 in Cases and Case Materials, Elections and Voting, Federalism, Jurisdiction of Federal Courts, News, Opinion Analysis, Separation of Powers, Standing | Permalink | Comments (0)

Friday, December 11, 2020

SCOTUS Says No Standing to Challenge State Political Balancing Requirements

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

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

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

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

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

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

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

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

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

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

December 11, 2020 in Cases and Case Materials, Jurisdiction of Federal Courts, News, Opinion Analysis, Separation of Powers, Standing | Permalink | Comments (0)

Thursday, December 3, 2020

Ninth Circuit Halts Public Charge Rule

The Ninth Circuit affirmed a preliminary injunction yesterday that halted the administration's "public charge" rule--the ban on admission of aliens to the United States who are likely to receive certain public benefits for more than 12 months within any 36 month period. But the court vacated a lower court's nationwide injunction; instead, the ruling temporarily halted the rule within the Ninth Circuit and in other outside states that brought the case.

The ruling aligns with similar rulings in the Second Circuit and Seventh Circuit (where then-Judge Amy Coney Barrett dissented), but conflicts with a ruling out of the Fourth Circuit.

Ordinarily, this case would seem destined for the Supreme Court. But DHS may reverse course in the Biden Administration and render it moot.

The case arose when DHS adopted a rule in August 2019 that re-defined "public charge" under the Immigration and Naturalization Act provision that renders inadmissible any alien who is likely to become a "public charge." In particular, DHS defined "public charge" to mean "an alien who receives one or more [specified] public benefits . . . for more than 12 months in the aggregate within any 36-month period."

The change in definition broke with a long history, "from the Victorian Woodhouse to agency guidance in 1999," defining "public charge" to mean dependence on public assistance for survival--and not "short-term use of in-kind benefits that are neither intended nor sufficient to provide basic sustenance."

The court ruled that the 2019 rule was contrary to law and arbitrary and capricious in violence of the Administrative Procedure Act. It held that the rule violated the long-running meaning of "public charge" under the INA and thus violated the Act. It also held that DHS failed to consider the financial impact of the rule and the health consequences of the rule for immigrants and the public as a whole, and failed to explain its reversal in position (from the 1999 guidance).

Judge VanDyke dissented, relying on the reasoning in the Fourth Circuit ruling, then-Judge Barrett's dissent in the Seventh Circuit case, the earlier Ninth Circuit ruling staying a district court injunction pending appeal, and "the Supreme Court's multiple stays this year of injunctions virtually identical to those the majority today affirms." 

December 3, 2020 in Cases and Case Materials, Executive Authority, News, Opinion Analysis, Separation of Powers | Permalink | Comments (0)

Wednesday, October 7, 2020

Second Circuit Rebuffs Trump's Case Against NY Grand Jury Subpoena

The Second Circuit today flatly rejected President Trump's case challenging the NY grand jury subpoena for his financial records. The ruling follows a summer Supreme Court decision saying that the grand jury was not categorically (and constitutionally) barred from seeking the President's financial records.

The ruling in Trump v. Vance deals a serious blow to President Trump and his efforts to keep his financial records under wraps. (The subpoena goes to far more than President Trump's taxes.) But the President will surely seek to appeal.

The ruling says that President Trump failed even to plausibly plead (under the Iqbal and Twombly pleading standard) that the grand jury subpoena was overbroad or issued in bad faith. At the same time, it noted that going forward the President might need some accommodations in state criminal proceedings in order to avoid intruding on the President's Article II responsibilities. (The President didn't raise categorical constitutional claims in this round--the Supreme Court already rejected those claims in its ruling this summer--and did not specifically claim that complying with this subpoena would interfere with his Article II responsibilities.)

The court's decision was issued per curiam (without naming the judges involved), suggesting that the case was easy and that the ruling was perfunctory. 

October 7, 2020 in Cases and Case Materials, Executive Authority, Executive Privilege, Federalism, News, Opinion Analysis | Permalink | Comments (0)