Tuesday, November 20, 2018
Judge Jon S. Tigar (N.D. Cal.) issued a temporary restraining order today against President Trump's move to prevent aliens along the Mexico border from applying for asylum except at ports of entry. The court ruled that government action violated the plain terms of the Immigration and Naturalization Act, and, alternatively, that there were "serious questions" about whether the government could bypass notice-and-comment procedures under the Administrative Procedure Act (as it did).
The order applies nationwide.
The ruling strikes a substantial blow against President Trump's effort to restrict aliens' ability to apply for asylum. The next step is a show-cause hearing on December 19, during which Judge Tigar will hear arguments whether the government "should not be enjoined from taking any action continuing to implement the Rule and ordered to return to the pre-Rule practices for processing asylum applications, pending the final disposition of this action."
DOJ and DHS published a joint interim rule, bypassing notice-and-comment procedures under the APA's "military or foreign affairs function" and "good cause" exemptions, that renders an alien categorically ineligible for asylum "if the alien is subject to a presidential proclamation or other presidential order suspending or limiting the entry of aliens along the southern border with Mexico . . . ." President Trump then issued a presidential proclamation (claiming authority under 8 U.S.C. Secs. 1182(f) and 1185(a)) suspending "[t]he entry of any alien into the United States across the international boundary between the United States and Mexico" for ninety days, but exempts "any alien who enters the United States at a port of entry and properly presents for inspection."
The problem is that this runs headlong into the INA. 8 U.S.C. Sec. 1158(a)(1) (emphasis added) provides:
Any alien who is physically present in the United States or who arrives in the United States (whether or not at a designated port of arrival and including an alien who is brought to the United States after having been interdicted in international or United States waters), irrespective of such alien's status, may apply for asylum . . . .
In short: the government's rule violates the statute. "Basic separation of powers principles dictate that an agency may not promulgate a rule or regulation that renders Congress's words a nullity."
The court rejected the government's argument that its rule is consistent with the statute, because the statute says that an alien can apply for asylum, while the rule uses the port-of-entry requirement to render an alien ineligible for asylum. "The argument strains credulity. To say that one may apply for something that one has no right to receive is to render the right to apply a dead letter. There is simply no way to harmonize the two."
The court went on to say that there were "serious questions" about the government's invocation of the "foreign affairs" and "good cause" exceptions to the APA's notice-and-comment requirements. Although the court didn't have to rule on the exceptions (because it held that the rule violates the plain terms of the INA), it did, for completeness.
Thursday, November 15, 2018
In his opinion in Democratic Executive Committee of Florida v. Detzner, United States District Judge Mark Walker, Chief Judge for the Northern District of Florida, has granted the motion for a preliminary injunction and ordered Florida to "allow voters who have been belatedly notified they have submitted a mismatched-signature ballot to cure their ballots by November 17, 2018, at 5:00 p.m."
After finding that the plaintiffs had standing and were not barred by laches, Judge Walker reached the question of whether the plaintiffs were likely to prevail on their constitutional claims on the infringement of the right to vote. Judge Walker decided that the standard derived from Anderson-Burdick should be applied:
Under Anderson-Burdick, a court considering a challenge to a state election law “must weigh ‘the character and magnitude of the asserted injury to the rights protected by the First and Fourteenth Amendments that the plaintiff seeks to vindicate’ against ‘the precise interests put forward by the State as justifications for the burden imposed by its rule,’ taking into consideration ‘the extent to which those interests make it necessary to burden the plaintiff’s rights.’ ” Burdick. When an election law imposes only reasonable, nondiscriminatory restrictions upon the constitutional rights of voters, the states’ important regulatory interests are generally sufficient to justify the restrictions. Id. But, “[h]owever slight the burden may appear . . . it must be justified by relevant and legitimate state interests sufficiently weighty to justify the limitations.” Common Cause/Ga. v. Billups, 554 F.3d 1340, 1352 (11th Cir. 2009). This is not a litmus test, rather the court must balance these factors and make hard judgments. Crawford v. Marion Cty. Election Bd., 553 U.S. 181, 190 (2008). Finally, “Anderson/Burdick balancing . . . should not be divorced from reality, and  both the burden and legitimate regulatory interest should be evaluated in context.”
[some citations omitted]
Judge Walker found that the "injury is the deprivation of the right to vote based on a standardless determination made by laypeople that the signature on a voters’ vote-by-mail or provisional ballot does not match the signature on file with the supervisor of elections." The judge noted that there are "dozens of reasons a signature mismatch may occur, even when the individual signing is in fact the voter," and concluded that disenfranchisement of "approximately 5,000 voters based on signature mismatch is a substantial burden." While Judge Walker found that Florida's interests "to prevent fraud, to efficiently and quickly report election results, and to promote faith and certainty in election results" were compelling, the "use of signature matching is not reasonable and may lead to unconstitutional disenfranchisement."
Judge Walker extended the period for voters to address a potential signature mismatch by noting that the previous opportunity to cure has "proved illusory."
Provisional ballot voters are provided no opportunity to cure under the law. Without this Court’s intervention, these potential voters have no remedy. Rather, they are simply out of luck and deprived of the right to vote. What is shocking about Florida law is that even though a voter cannot challenge a vote rejected as illegal, any voter or candidate could challenge a vote accepted as legal. The burden on the right to vote, in this case, outweighs the state’s reasons for the practice. Thus, under Anderson-Burdick, this scheme unconstitutionally burdens the fundamental right of Florida citizens to vote and have their votes counted.
Additionally, Judge Walker noted that although the plaintiffs' claims rested on the First Amendment and Equal Protection Clause of the Fourteenth Amendment, he was also troubled by the lack of procedural due process, citing the Georgia mismatch decision in Martin v. Kemp.
Judge Walker's 34 page opinion did not cite Bush v. Gore (2000).
The Florida recount, like the Georgia recount continues, more than a week after election day.
Friday, November 2, 2018
In an Order in Georgia Coalition for the People's Agenda v. Kemp, United States District Judge Eleanor Ross has found that the challengers would be likely to succeed on the merits of their constitutional claim regarding Georgia's flagging of potential voters as noncitizens ineligible to vote. Recall that a different district judge recently issued an injunction against Secretary of State Kemp — who is also a candidate for Governor — in a challenge to the "mismatch" of voter names.
Here, Judge Ross articulated the appropriate framework as:
When deciding whether a state election law violates First and Fourteenth Amendment associational rights, we weigh the character and magnitude of the burden the State’s rule imposes on those rights against the interests the State contends justify that burden, and consider the extent to which the State’s concerns make the burden necessary.
Timmons v. Twin Cities Area New Party, 520 U.S. 351, 358 (1997).
Judge Ross first found that the burden was "severe for those individuals who have been flagged and placed in pending status due to citizenship." Discussing one particular person, Judge Ross stated that
it was not a nominal effort for him to vote; it was a burdensome process requiring two trips to the polls, his own research, and his hunting down a name and telephone number to give to election officials so that his citizenship status could be verified, all after he had already submitted proof of citizenship with his voter registration application. This is beyond the merely inconvenient.
Relying on Timmons, Judge Ross continued with a strict scrutiny analysis, finding that while the State's interest in ensuring only citizens vote was compelling, the specific means chosen were not narrowly tailored. Here, the focus was on the fact that 4 of the 5 ways in which the State proposed that persons could verify their citizenship required a "deputy registrar," which were derived from a previous settlement. However, Judge Ross declared that the court's hands were not tied as to this matter, and ultimately all 5 of the options "for allowing individuals with flags for citizenship to vote in the upcoming election, sweep broader than necessary to advance the State's interest, creating confusion as Election Day looms."
Judge Ross directed Brian Kemp in his official capacity as Secretary of State to:
Allow county election officials to permit eligible voters who registered to vote, but who are inaccurately flagged as non-citizens to vote a regular ballot by furnishing proof of citizenship to poll managers or deputy registrars.
Update the “Information for Pending Voters” on the Secretary of State’s website so that it provides (a) clear instructions and guidance to voters in pending status due to citizenship and (b) a contact name and telephone number that individuals may call with questions about the pending status due to citizenship.
Direct all county registrars, deputy registrars, and poll managers on how to verify proof of citizenship to ensure that they can properly confirm citizenship status consistent with this order. Issue a press release (a) accurately describing how an individual flagged and placed in pending status due to citizenship may vote in the upcoming election, as set forth herein; and (b) providing a contact name and telephone number that individuals may call with questions about the pending status due to citizenship.
Issue a press release (a) accurately describing how an individual flagged and placed in pending status due to citizenship may vote in the upcoming election, as set forth herein; and (b) providing a contact name and telephone number that individuals may call with questions about the pending status due to citizenship.
- Direct the county boards of elections to post a list of acceptable documentation to prove citizenship, which includes a naturalization certificate, birth certificate issued by a state or territory within the United States, U.S. passport, and other documents or affidavits explicitly identified by Georgia law and listed on the Georgia Secretary of State’s website, at polling places on Election Day.
Wednesday, October 24, 2018
In her Order & Opinion in Martin v. Kemp, United States District Judge Leigh Martin May stated she would enjoin county election officials from simply rejecting absentee ballot applications and absentee ballots due to an "alleged signature mismatch" but shall instead follow additional procedures. There has reportedly been some controversy regarding the Defendant Secretary of State, Brian Kemp, who is also a candidate for Governor, and the voter restrictions he oversees.
Judge May found that the plaintiffs and plaintiff organizations had standing, there was no laches, and that a facial challenge was appropriate. She also concluded that there was a substantial likelihood of success on the procedural due process challenge (and thus did not reach the other constitutional challenges).
Judge May quickly concluded that the plaintiffs had a constitutionally protected liberty interest in the right to vote by absentee ballot:
While Defendants correctly assert that the right to apply for and vote via absentee ballot is not constitutionally on par with the fundamental right to vote, once the state creates an absentee voting regime, they “must administer it in accordance with the Constitution.” Indeed, the Supreme Court has long held that state- created statutory entitlements can trigger due process. Having created an absentee voter regime through which qualified voters can exercise their fundamental right to vote, the State must now provide absentee voters with constitutionally adequate due process protection.
Turning to the issue of the process that is due, Judge May applied the well-known Mathews v. Edlridge (1976) factors. On the first factor weighing the private interest at issue, Judge May stated that the interest implicated the fundamental right to vote and as such was "entitled to substantial weight." On the second factor regarding the risk of erroneous deprivation and the probative value, if any, of additional procedural safeguards, Judge May found that while "the risk of an erroneous deprivation is by no means enormous, permitting an absentee voter to resolve an alleged signature discrepancy nevertheless has the very tangible benefit of avoiding disenfranchisement." On the third and final factor requiring the court to examine the government’s interest, including “the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail,” Judge May concluded that "Defendants cannot cry foul with regard to the burden of additional procedures given that Defendants conceded at oral argument that counties already permit voters to verify their signatures through extrinsic evidence on an ad hoc basis." Further, the remedy of the voter simply showing up did not apply to voters who vote by mail because they cannot show up in person. Thus, Judge May found there was likely a procedural due process problem.
The judge's Order included a proposed injunction, giving the parties until noon on October 25 to object to the form of the injunction, stressing that this was not an "opportunity to readdress the propriety" of the injunction, only whether the language of the injunction would be confusing or unworkable for election officials.
Monday, October 15, 2018
In his 14 page opinion as a minute order in Cliffords v. Trump, the federal judge dismissed the claim of Stormy Daniels (a/k/a Stephanie Clifford) against President Trump for defamation. Recall the claim was based on Trump's tweet "A sketch years later about a nonexistent man. A total con job, playing the Fake News Media for Fools (but they know it)!" Daniels' complaint claimed that Trump was not only attacking the truthfulness of Daniels, but also accusing her of a crime: fabricating a crime and an assailant, both of which are crimes under New York law. The complaint alleges that Trump "made his statement either knowing it was false, had serious doubts about the truth of his statement, or made the statement with reckless disregard for its truth or falsity."
The judge, however, found:
Mr. Trump's statement constituted "rhetorical hyperbole" that is protected by the First Amendment.
Additionally, the judge denied a motion to amend the complaint:
The Court holds that Mr. Trump's tweet is "rhetorical hyperbole" and is protected by the First Amendment. Plaintiff cannot amend the Complaint in a way that challenges this holding. During argument on this matter, Plaintiff suggested that she could amend her Complaint to "shore up the malice allegations" and to "provide context for the statement to show that, in fact, it was not political nature at the time it was made." (Transcript * * * ) The former amendments are futile because this Court rules that Mr. Trump's tweet is protected by the First Amendment. The issue of malice is irrelevant to this holding. The latter amendments are futile because there is no way for Plaintiff to amend the Complaint to transform the tweet from "rhetorical hyperbole" into an actionable statement. * * * * Plaintiff cannot change Mr. Trump's tweet or the basic context of the tweet. Nor can Plaintiff withdraw factual allegations that she has made in pleadings before this Court. In the other litigation before this Court, Ms. Clifford argues that Mr. Trump sought to silence her as a strategy to win the Presidential election, a clear argument against the legitimacy of Mr. Trump's Presidency. Mr. Trump issued the tweet as a rejoinder against an individual challenging him in the public arena. This is the definition of protected rhetorical hyperbole. The Court denies Plaintiff leave to amend the Complaint.
The result is not surprising given reports that after a hearing several weeks ago, Judge James Otero indicated he would be dismissing the action.
The judge also awards Trump attorneys fees.
Wednesday, October 10, 2018
In his opinion in Brackeen v. Zinke, United States District Judge for the Northern District of Texas, Reed O'Connor, entered summary judgment for the plaintiffs and found that portions of the Indian Child Welfare Act, ICWA are unconstitutional, specifically violating equal protection, the non-delegation doctrine of Article I, and the commandeering principle of the Tenth Amendment. Passed in 1978, the general purpose of ICWA is to prevent Native children from being removed from their families and tribes based on a finding that "an alarmingly high percentage of Indian families [were being] broken up by the removal, often unwarranted, of their children from them by nontribal public and private agencies” as Judge O'Connor's opinion acknowledged, quoting Adoptive Couple v. Baby Girl (2013) (quoting 25 U.S.C. § 1901(4)).
Judge Reed O'Connor, however, accepts an argument that was sidestepped by the United States Supreme Court in Baby Girl: that ICWA violates equal protection (applied to the federal government through the Fifth Amendment) by making a racial classification that does not survive strict scrutiny. Recall that in some briefs as well as in the oral argument, the specter of the racial classification was raised. In United States District Judge O'Connor's opinion, that specter is fully embodied. Judge O'Connor found that ICWA does make a racial classification, rejecting the government's view that the classification at issue was a political category. Judge O'Connor reasoned that ICWA defines Indian child not only by membership in an Indian child, but extends its coverage to children "simply eligible for membership who have a biological Indian parent." Thus, Judge O'Connor reasoned, ICWA's definition "uses ancestry as a proxy for race" and therefore must be subject to strict scrutiny. Interestingly, the United States government did not offer any compelling governmental interest or argued that the classification is narrowly tailored to serve that interest. Judge O'Connor nevertheless credited the Tribal Defendants/Intervenors assertion of an interest in maintaining the Indian child's relationship with the tribe, but found that the means chosen was overinclusive, concluding that
The ICWA’s racial classification applies to potential Indian children, including those who will never be members of their ancestral tribe, those who will ultimately be placed with non-tribal family members, and those who will be adopted by members of other tribes.
On the non-delegation claim, Judge Reed O'Connor found it fatal that ICWA allows Tribes to change the child placement preferences selected by Congress and which then must be honored by the states in child custody proceedings.
On the Tenth Amendment claim, Judge Reed O'Connor relied on the Court's recent decision in Murphy v. NCAA holding unconstitutional a federal law prohibiting states from allowing sports gambling regarding anti-commandeering, concluding that
Congress violated all three principles [articulated in Murphy] when it enacted the ICWA. First, the ICWA offends the structure of the Constitution by overstepping the division of federal and state authority over Indian affairs by commanding States to impose federal standards in state created causes of action. See 25 U.S.C. § 1915(a). Second, because the ICWA only applies in custody proceedings arising under state law, it appears to the public as if state courts or legislatures are responsible for federally-mandated standards, meaning “responsibility is blurred.” Third, the ICWA shifts “the costs of regulations to the States” by giving the sole power to enforce a federal policy to the States. Congress is similarly not forced to weigh costs the States incur enforcing the ICWA against the benefits of doing so. In sum, Congress shifts all responsibility to the States, yet “unequivocally dictates” what they must do.
[citations to Murphy omitted].
October 10, 2018 in Congressional Authority, Courts and Judging, Due Process (Substantive), Equal Protection, Family, Federalism, Fifth Amendment, Fundamental Rights, Nondelegation Doctrine, Opinion Analysis, Race, Tenth Amendment | Permalink | Comments (0)
Tuesday, October 9, 2018
The Seventh Circuit last week upheld Wisconsin's butter-grading system against Dormant Commerce Clause, due process, and equal protection challenges. The ruling means that Wisconsin's butter-grading system stays on the books.
The case, Minerva Dairy v. Harsdorf, took on Wisconsin's law for grading butter, which makes it unlawful "to sell . . . any butter at retail unless it has been graded." To satisfy this requirement, butter may be graded either by a Wisconsin-licensed grader, or by the USDA voluntary butter-grading program. The plaintiff, an Ohio butter producer, argued that the law violated the Dormant Commerce Clause, due process, and equal protection.
The Seventh Circuit disagreed. The court ruled that the law didn't discriminate against interstate commerce, and so didn't violate the Dormant Commerce Clause. (The court didn't even apply Pike v. Bruce Church balancing, because the law didn't discriminate on its face or in effect.) The court also said that Wisconsin's butter-grading-licensing standards, which require a person to come to Wisconsin to test to be a Wisconsin-certified butter-grader, didn't discriminate, either (even though a would-be butter-grader who lives in or close to Wisconsin can get there easier than a would-be grader who lives farther away).
The court rejected the due process and equal protection challenges, too, because the law satisfied rational basis review.
Thursday, October 4, 2018
In his opinion in Ramos v. Nielsen, United States District Judge Edward Chen of the Northern District of California enjoined the federal government's termination of TPS — Temporary Protected Status — designations for Haiti, Sudan, Nicaragua, and El Salvador.
As we previously discussed related to the NAACP complaint filed in January in Maryland and related only to Haiti, one argument is that the termination is a violation of equal protection, springing from an intent to discriminate on the basis of race and/or ethnicity.
Judge Chen's opinion finds that the preliminary injunction is warranted based on a likelihood of prevailing on the merits of an Administrative Procedure Act claim, but also on the merits of the equal protection claim. Judge Chen applied the factors from Village of Arlington Heights v. Metro. Hous. Development Corp., 429 U.S. 252 (1977), and concluded that there was sufficient evidence to
raise serious questions as to whether a discriminatory purpose was a motivating factor in the decisions to terminate the TPS designations. In particular, Plaintiffs have provided evidence indicating that (1) the DHS Acting Secretary or Secretary was influenced by President Trump and/or the White House in her TPS decision-making and (2) President Trump has expressed animus against non-white, non-European immigrants.
there were departures from the normal procedural sequence during the TPS decision-making process; that is, instead of considering all current country conditions as had been done in previous administrations, the DHS political appointees in the current administration made TPS decisions turn on whether the originating condition or conditions directly related thereto continued to exist, disregarding all other current conditions no matter how bad. Moreover, at the apparent behest of then-DHS Secretary Kelly, there was an effort to gather negative information about Haitian TPS beneficiaries prior to the decision on Haiti’s TP designation – in particular, whether Haitian TPS beneficiaries had been convicted of crimes or were on public or private relief. See Degen Decl., Ex. 84 (email). There is no indication that these factors had previously been considered by DHS in making TPS decisions; indeed, the email indicated that the request for the information should be kept quiet. See Degen Decl., Ex. 84 (email) (“Please keep the prep for this briefing limited to those on this email. If you need a specific data set and need to ask someone to pull it, please do not indicate what it is for. I don’t want this to turn into a big thing were people start prodding and things start leaking out.”). The information sought by the Secretary coincides with racial stereotypes – i.e., that non-whites commit crimes and are on the public dole.
This is yet another judicial finding that the administration has acted with racial animus and the administration is sure to appeal it.
[image: Kirstjen Nielsen, current Secretary of Department of Homeland Security]
Friday, September 28, 2018
Judge Emmet G. Sullivan (D.D.C.) ruled today in Blumenthal v. Trump that members of Congress have standing to sue President Trump for violations of the Foreign Emoluments Clause. At the same time, Judge Sullivan declined to rule on the President's other three arguments for dismissal--that the plaintiffs lack a cause of action, that they've failed to state a claim (because the President's business interests aren't "emoluments" under the Clause), and that injunctive relief sought is unconstitutional. Thus, the ruling is a set-back for the President, but Judge Sullivan may yet end up dismissing the case on other grounds.
We posted here on the earlier district court ruling that another Emoluments case, brought by Maryland and D.C., can move forward.
The Congressmembers' case alleges that President Trump's overseas business holdings and properties generate income and benefits for the President, without the consent of Congress, in violation of the Foreign Emoluments Clause. That Clause says:
No Title of Nobility shall be granted by the United States: And no Person holding any Office of Profit or Trust under them, shall, without the Consent of the Congress, accept of any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State.
The 201 plaintiffs seek declaratory and injunctive relief. They claimed that they were harmed (for standing purposes) because the President, by failing to seek congressional consent, denied each of them a "vote on the record about whether to approve his acceptance of a prohibited foreign emolument."
The court agreed:
[E]ach time the President allegedly accepts a foreign emolument without seeking congressional consent, plaintiffs suffer a concrete and particularized injury--the deprivation of the right to vote on whether to consent to the President's acceptance of the prohibited foreign emolument--before he accepts it. And although the injury is an institutional one, the injury is personal to legislators entitled to cast the vote that was nullified.
The court went on to say that standing didn't violate the separation of powers. The court held that the plaintiffs lacked an alternative legislative remedy, and that the case was appropriate for judicial review.
September 28, 2018 in Congressional Authority, Courts and Judging, Executive Authority, Jurisdiction of Federal Courts, News, Opinion Analysis, Separation of Powers, Standing | Permalink | Comments (0)
Thursday, September 20, 2018
The Ninth Circuit ruled in Fikre v. FBI that the plaintiff's due process challenges to his inclusion on the government's no-fly list were not moot, even though the government took him off the list during the litigation. The ruling means that the plaintiff's case challenging his inclusion on the no-fly list can move forward.
The case arose from Yonas Fikre's inclusion on the no-fly list and his several and significant resulting harms. Fikre alleged that his inclusion violated substantive and procedural due process, and he sought declaratory and injunctive relief. During the litigation, the government removed Fikre from the list, however, and moved to dismiss the case as moot. The district court granted the motion.
The Ninth Circuit reversed. The court ruled that Fikre's case came under the voluntary cessation exception to mootness--that signs pointed to the government opportunistically removing him, and that the government could reinstate him at any time. The court explained:
To begin, the FBI's decision to restore Fikre's flying privileges is an individualized determination untethered to any explanation or change in policy, much less an abiding change in policy. . . .
Moreover, the government has no assured Fikre that he will not be banned from flying for the same reasons that prompted the government to add him to the list in the first place, nor has it verified the implementation of procedural safeguards conditioning its ability to revise Fikre's status on the receipt of new information. . . .
Finally . . . we note that Fikre's removal from the No Fly List does not "completely and irrevocably eradicate the effects of the alleged violation[s]."
The ruling sends the case back to the district court for further proceedings.
Tuesday, September 11, 2018
In its opinion in Nwanguma v. Trump, a panel of the Sixth Circuit ruled that the complaint against Donald Trump and his campaign for damages based on "inciting to riot" during a Kentucky event should be dismissed. Recall that the district judge denied Trump's motion to dismiss the complaint's count of incitement to riot based on events during a campaign event in Louisville, Kentucky on March 1, 2016. The complaint alleged that the candidate told the crowd “Get ’em out of here,” when the plaintiffs were "peacefully protesting" at a campaign rally, and as a result of the candidate's encouragement, three individual defendants pushed, shoved, and struck the three plaintiffs.
The Sixth Circuit's opinion, authored by Judge David McKeague, agreed with the district judge that the relevant precedents were Brandenberg v. Ohio (1969), Hess v. Indiana (1973), and the Sixth Circuit's en banc decision in Bible Believers v. Wayne County (2015). However, the Sixth Circuit criticized the district judge's analysis on some of the elements of the Kentucky incitement to riot statute as "decidedly thin." For Judge McKeague, seemingly the most important fact of the Trump speech was that Trump's repeated statement “Get ’em out of here" was followed by "don't hurt 'em." Thus, "any implication of incitement to riotous violence is explicitly negated": "If words have meaning, the admonition 'don't hurt 'em' cannot reasonably be construed as an urging to "hurt 'em.'"
After considering the elements of the Kentucky incitement to riot statute, Judge McKeague then considers the First Amendment protection that inheres in the definition of incitement to riot. Yet on both issues, Trump's "don't hurt 'em" statement figures prominently. Again, while in "the ears of some supporters, Trump's words may have had a tendency to elicit a physical response" they are undercut by the words "don't hurt 'em."
Judge Helene White's short concurring opinion argues that the "majority opinion elides salient details of Trump's speech that make this a closer case" for her than for the majority opinion which "overemphasizes the legal significance of the 'don't hurt 'em' statement." However, Judge White concurs because she concludes that the allegations do not meet the Kentucky statute's definition, and therefore the court should not have reached the First Amendment issue.
Eighth Circuit: Missouri Constitutional Amendment Prohibiting Inter-PAC Contributions Violates First Amendment
In its brief opinion in Free and Fair Election Fund v. Missouri Ethics Commission, a panel of the Eighth Circuit agreed with the district judge that Mo. Const. Art. VIII §23.3 violates the First Amendment.
The Missouri constitutional provision, approved by voters in November 2016, prohibited political action committees (PACs) from receiving contributions from other political action committees. The PAC Free and Fair Election Fund quickly challenged the constitutional amendment contending that the inter-PAC transfer ban violated the First Amendment. The district judge and appellate panel agreed, reasoning that restricting the recipients to whom a PAC can donate "limits the donor-PAC’s speech and associational rights under the First Amendment," and thus "the challenged law must advance a sufficiently important state interest and employ means closely drawn to avoid unnecessary abridgment of First Amendment freedoms."
Quoting McCutcheon v. FEC (2014), the Eighth Circuit reasoned:
There is only one legitimate state interest in restricting campaign finances: “preventing corruption or the appearance of corruption.” This interest is limited to preventing “only a specific type of corruption—‘quid pro quo’ corruption” or its appearance. A large donation that is not made “in connection with an effort to control the exercise of an officeholder’s official duties, does not give rise to . . . quid pro quo corruption.” Similarly, the general risk that a donor, through large donations, will “garner influence over or access to elected officials or political parties,” either in fact or in appearance, is insufficient to create quid pro quo corruption. Instead, “the risk of quid pro quo corruption is generally applicable only to the narrow category of money gifts that are directed, in some manner, to a candidate or officeholder.”
[citations omitted]. The Eighth Circuit held that the inter-PAC transfer ban "does little, if anything, to further the objective of preventing corruption or the appearance of corruption," distinguishing the 2016 Eleventh Circuit decision in Alabama Democratic Conference v. Attorney General of Alabama, because "unlike Alabama, Missouri limits the contributions that a PAC can make to a candidate, so the anti-corruption interest cited in support of the Alabama law is diminished here."
The Eighth Circuit further found that the transfer ban was not closely drawn: "the risk of corruption from PAC- to-PAC transfers is modest at best, and other regulations like contribution limits and disclosure requirements act as prophylactic measures against quid pro quo corruption."
The Eighth Circuit affirmed the injunction against the Missouri constitutional provision, perhaps setting up a circuit conflict on the constitutionality of inter-PAC transfers.
Thursday, September 6, 2018
In its unanimous judgment and opinions in Johar v. Union of India, the Supreme Court of India has declared that §377 of the Indian Penal Code, which prohibited "carnal intercourse against the order of nature" is unconstitutional. The Court overruled the 2013 judgment in Koushal v. NAZ Foundation which we discussed here.
The opinions of the Court, totaling just short of 500 pages, rest the decision on Articles
- 14 (equality)
- 15 (prohibition of discrimination, including sex)
- 19 (protection of speech and association) and
- 21 (protection of liberty against deprivation without due process)
of the Constitution of India. The opinions include extensive discussions of cases from other nations and jurisdictions finding that criminalization of same-sex relations is unconstitutional, including Lawrence v. Texas (2003) in the United States, overruling Bowers v. Hardwick (1986).
History owes an apology to the members of this community and their families, for the delay in providing redressal for the ignominy and ostracism that they have suffered through the centuries. The members of this community were compelled to live a life full of fear of reprisal and persecution. This was on account of the ignorance of the majority to recognise that homosexuality is a completely natural condition, part of a range of human sexuality. The mis-application of this provision denied them the Fundamental Right to equality guaranteed by Article 14. It infringed the Fundamental Right to non-discrimination under Article 15, and the Fundamental Right to live a life of dignity and privacy guaranteed by Article 21. The LGBT persons deserve to live a life unshackled from the shadow of being ‘unapprehended felons’.
The choice of "history" as being held accountable rather than the Court (and its previous opinion) may be deflective, but it is more of an acknowledgement that the United States Supreme Court gave in Lawrence (and which would have been arguably very appropriate).
Wednesday, September 5, 2018
In an extensive opinion in Whole Woman's Health v. Smith, District Judge David Alan Ezra ruled that Texas statute and regulations requiring internment (or cremation) for "embryonic and fetal tissue disposal" were unconstitutional. Judge Ezra's opinion occurred after a one-week bench trial in which the issue of cost of compliance was excluded.
Judge Ezra found that the Texas laws violated both the Equal Protection and Due Process Clauses of the Fourteenth Amendment.
On the equal protection issue, Judge Ezra found that the Texas laws' distinction between "pre-implantation and post-implantation embryos and the facilities that handle them" was not rationally related to the legitimate government interest in "respecting potential life." Thus, even under the rational basis test, the laws did not survive.
On the due process issue, Judge Ezra applied the doctrine from the Supreme Court's decision in Whole Woman's Health v. Hellerstedt, and found that the Texas laws
place substantial obstacles in the path of women seeking pregnancy-related medical care, particularly a previability abortion, while offering minimal benefits.
By endorsing one view of the status and respect to be accorded to embryonic and fetal tissue remains, the State imposes intrusive burdens upon personal decisions concerning procreation, especially upon the right of the woman to chose to have an abortion. And most importantly, the evidence in this case overwhelmingly demonstrated that if the challenged laws were to go into effect now, they would likely cause a near catastrophic failure of the health care system designed to serve women of childbearing age within the State of Texas.
This failure, Judge Ezra makes clear, is not simply for women seeking an abortion, but for all women seeking pregnancy care for complications.
Thus the court declared the laws and implementing regulations unconstitutional and enjoined their enforcement.
Monday, August 27, 2018
In an extensive opinion, a three judge court in Common Cause v. Rucho (& League of Women Voters v. Rucho) held that North Carolina's 2016 redistricting plan was a product of partisan gerrymandering and violates the Equal Protection Clause, the First Amendment, and Article I of the Constitution.
The opinion is almost 300 pages with an additional comparatively brief 25 plus page concurring and dissenting opinion, but the three judge court is often discussing familiar matters. Recall that the court had reached this result in January 2018. However, recall also that the United States Supreme Court issued a stay shortly thereafter. In July 2018, the United States Supreme Court vacated the three judge court's decision in Rucho in light of Gill v. Whitford (2018), which, the three judge court states, "addressed what evidence a plaintiff must put forward to establish Article III standing to lodge a partisan vote dilution claim under the Equal Protection Clause." The three judge court's opinion in Rucho holds that standing was satisfied under the Gill test as to equal protection and further that "Gill did not call into question—and, if anything, supported—this Court’s previous determination that Plaintiffs have standing to assert partisan gerrymandering claims under Article I and the First Amendment."
As for the merits, Gill v. Whitford is not particularly useful; as we said when Gill was decided, it (with the per curiam decision in Benisek v. Lamone, "leave the constitutionality of partisan gerrymandering as unsettled as before." Thus, the three judge court had little guidance to reconsider its previous conclusions.
Perhaps the most noteworthy aspect of the three judge court's decision today in Rucho, however, is the remedy: the court notes that the circumstances are unusual and writes:
we decline to rule out the possibility that the State should be enjoined from conducting any further congressional elections using the 2016 Plan. For example, it may be possible for the State to conduct a general election using a constitutionally compliant districting plan without holding a primary election. Or, it may be viable for the State to conduct a primary election on November 6, 2018, using a constitutionally compliant congressional districting plan, and then conduct a general election sometime before the new Congress is seated in January 2019. Accordingly, no later than 5 p.m. on August 31, 2018, the parties shall file briefs addressing whether this Court should allow the State to conduct any future election using the 2016 Plan. Those briefs should discuss the viability of the alternatives discussed above, as well as any other potential schedules for conducting elections using a constitutionally compliant plan that would not unduly interfere with the State’s election machinery or confuse voters. Regardless of whether we ultimately allow the State to use the 2016 Plan in the 2018 election, we hereby enjoin the State from conducting any elections using the 2016 Plan in any election after the November 6, 2018, election.
[emphasis in original].
The November election is in 70 days.
Sunday, August 26, 2018
Judge Ketanji Brown Jackson (D.D.C.) ruled yesterday in American Federation of Government Employees v. Trump that President Trump's executive orders sharply curtailing federal employees' collective bargaining and labor rights violate federal labor law. The ruling means that most of the EOs' limitations are invalid.
Together, the EOs set a timeframe for completion of collective bargaining negotiations; removed certain matters from the bargaining table completely; set certain procedures for negotiations; limited the extent to which federal employees could engage in union work during business hours; limited the government resources that union members could use for union activities; made it easier for the government to dismiss federal employees for unsatisfactory performance.
The court recognized that the EOs are subject to restrictions in statutory law, but that "the President could always theoretically claim that he possesses the inherent constitutional authority to take a given action, regardless of any conflict with a congressional statute and his resulting lack of statutory authority." "But Defendants have made no such assertion in the instant case; instead, they have 'expressly recognized statutory limitations on the President's authority to act in this area.'" The court, therefore, didn't rule on the constitutional question.
The government's omission of a constitutional argument might seem surprising, given the President's recent constitutional extrapolation from the Court's ruling in Lucia in an EO designed to rein in control over executive branch ALJs. That move seemed like an attack, under cover of Lucia and claimed plenary Article II authority over the executive branch, on civil service laws that in any way restrict the President's claimed authority to hire and fire whomever he wants. That attack would seem to apply equally here. But the government didn't press it.
On the statutory questions, Judge Jackson summarized:
[T]he Order provisions concerning matters such as the reduction of the availability of and support for official time activities [to engage in union-related work], and the specific prohibitions against bargaining over [certain matters], or hte unilateral narrowing of any negotiated grievance procedures, dramatically decrease the scope of the right to bargain collectively, because, in the [Federal Service Labor-Management Relations Act], Congress clearly intended for agencies and unions to engage in a broad and meaningful negotiation over nearly every "condition of employment." Likewise, the Orders' requirements, such as the directive that agencies should "ordinarily" seek to conclude collective bargaining negotiations within five to seven months, or should limit the applicability of grievance procedures "[w]henever reasonable[,]" effectively instruct federal agencies and executive departments to approach collective bargaining in a manner that clearly runs counter to the FSLMRS's expectation of good-faith conduct on the part of negotiating parties. . . .
[T]he only challenged provisions of [the EOs] that can stand are those that neither contribute to a reduction in the scope of the collective bargaining that Congress has envisioned nor impede the ability of agencies and executive departments to engage in the kind of good-faith bargaining over conditions of federal employment that Congress has required.
Friday, August 24, 2018
The Ninth Circuit last week authorized a constitutional tort under Bivens against an ICE official for forging a document that would have led to the plaintiff's deportation. (H/t Theo Lesczynski.) The ruling means that the plaintiff's case can move forward.
The ruling is the second time in recent weeks that the Ninth Circuit authorized a Bivens action in a "new context." (The earlier case involved a Border Patrol officer's cross-border shooting of a Mexican youth.)
The case, Lanuza v. Love, arose when ICE Assistant Chief Counsel Jonathan Love submitted an I-826 form, forged with Lanuza's signature, at Lanuza's immigration hearing. The form indicated that Lanuza accepted voluntary departure to Mexico in 2000, breaking Lanuza's period of accrued continuous residency in the U.S. Without this continuous residency, Lanuza didn't qualify for cancellation of removal; and, based on the forged document, the immigration judge denied cancellation and ordered Lanuza removed. The Board of Immigration Appeals affirmed.
Lanuza then hired a new attorney, who discovered the forgery. (Among other things, the forged document referred to the "U.S. Department of Homeland Security," which did not yet exist at the time that Lanuza purportedly signed the form.) The agency then adjusted Lanuza's status to lawful permanent resident.
Lanuza brought a Bivens claim against Love for violation of his Fifth Amendment rights. The district court dismissed the case, but the Ninth Circuit reversed.
The court ruled that the case raised a "new context," but that no special factors counseled against a Bivens remedy. Indeed, the court said that certain factors favored a Bivens remedy in a case like this, where a government official submitted false evidence in a quasi-judicial proceeding:
Indeed, there are few persons better equipped to weigh the cost of compromised adjudicative proceedings than those who are entrusted with protecting their integrity. And, more often than not, the Judicial Branch, not Congress or the Executive, is responsible for remedying circumstances where a court's integrity is compromised by the submission of false evidence. Thus, it falls within the natural ambit of the judiciary's authority to decide whether to provide a remedy for the submission of false evidence in an immigration proceeding.
The court also denied qualified immunity.
The ruling sends the case back to the district court for proceedings on the merits.
Thursday, August 23, 2018
In its opinion in Fort Lauderdale Food Not Bombs v. City of Fort Lauderdale, the Eleventh Circuit reversed the district judge and found that the nature of the activity of Fort Lauderdale Food Not Bombs (FLFNB), "combined with the factual context and environment in which it was undertaken, lead to the conclusion" that FLFNB engaged in a "form of protected expression" under the First Amendment, quoting Spence v. Washington (1974).
As the opinion notes, the panel was resolving "the issue left undecided" in First Vagabonds Church of God v. City of Orlando, Florida (11th Cir. 2011) (en banc). The en banc circuit had stated it need not decide whether the feeding of homeless persons by Orlando Food Not Bombs in public parks is expressive conduct, because even assuming it was, the prohibition was constitutional as a reasonable time, place, or manner restriction of speech and as a reasonable regulation of expressive conduct under United States v. O’Brien (1968).
Here, Judge Adalberto Jordan writing for the unanimous panel begins:
In understanding what is going on around us, context matters. Food shared with company differs greatly from a meal eaten alone. Unlike a solitary supper, a feast requires the host to entertain and the guests to interact. Lady Macbeth knew this, and chided her husband for “not giv[ing] the cheer” at the banquet depicted in Shakespeare’s play. As she explained: “To feed were best at home; From thence, the sauce to meat is ceremony. Meeting bare without it.” William Shakespeare, The Tragedy of Macbeth, Act III, scene 4 (1606).
As to the particularized message requirement for expression, the court stated that it was sufficient that a reasonable observer would infer the precise message intended:
We decline the City’s invitation to resurrect the Spence requirement that it be likely that the reasonable observer would infer a particularized message. The Supreme Court rejected this requirement in Hurley [v. Irish-Am. Gay, Lesbian & Bisexual Grp. (1995)], 515 U.S. at 569 (a “narrow, succinctly articulable message is not a condition of constitutional protection”), and it is not appropriate for us to bring it back to life.
Having resolved the expressive conduct issue, the Eleventh Circuit panel remanded the question of whether the Fort Lauderdale ordinance and park rule violated the First Amendment or was unconstitutionally vague.
Wednesday, August 22, 2018
The Fifth Circuit last week rejected a challenge by faculty to a Texas law that allows concealed carry in public university classrooms. The ruling ends the challenge, and upholds the state Campus Carry Act and University of Texas at Austin policies permitting concealed carry.
The case, Glass v. Paxton, arose when faculty at the University of Texas challenge the Campus Carry Act and UT policies that permitted concealed carry for certain students on campus. Faculty challenged the Act under the First Amendment, Second Amendment, and Equal Protection Clause. The court rejected each of those challenges.
As to the First Amendment, the court held that the plaintiff lacked standing because she couldn't show, under the "certainly impending" standard of Amnesty International, "that a license-holder will illegally brandish a firearm in a classroom."
As to the Second Amendment, the court rejected the plaintiff's argument that the concealed carry on campus wasn't "well regulated." The court said that the "well regulated" requirement is part of the Second Amendment's prefatory clause, and that the Court in Heller ruled "that the Second Amendment's prefatory clause does not limit its operative clause."
Finally, as to equal protection, the court said that Texas's interests in the law--public safety and self-defense--were sufficient to pass rational basis review. "Here, Texas's rationales are arguable at the very least."
In its opinion in Commonwealth v. Knox, a majority of the Pennsylvania Supreme Court upheld a conviction for "terroristic threat" and of witness intimidation based on a video of a rap song performance that he wrote and performed and which was uploaded to YouTube by a third party.
In the opening of its opinion, authored by CJ Saylor, the court stated it would address the issue of "whether the First Amendment to the United States Constitution permits the imposition of criminal liability based on the publication of a rap-music video containing threatening lyrics directed to named law enforcement officers." But as the opinion makes clear, this involves a determination of whether the lyrics could be understood to constitute a "true threat" under the First Amendment. The court extensively discussed Watts v. United States (1969) and Virginia v. Black (2003), as well as the circuit court applications, in an attempt to reconsider its own precedent decided pre-Black in 2002. The court stated that as it read Black, "an objective, reasonable-listener standard" such as it had used in the 2002 case "is no longer viable for purposes of a criminal prosecution pursuant to a general anti-threat enactment." The court also cited Elonis v. United States (2015), adding a parenthetical explanation: "holding that, under longstanding common-law principles, a federal anti-threat statute which does not contain an express scienter requirement implicitly requires proof of a mens rea level above negligence." The court summarized the state of First Amendment law after Black:
First, the Constitution allows states to criminalize threatening speech which is specifically intended to terrorize or intimidate. Second, in evaluating whether the speaker acted with an intent to terrorize or intimidate, evidentiary weight should be given to contextual circumstances such as those referenced in Watts.
For the court, an essential issue of the necessary specific intent was the personalization of the lyrics to two named police officers: "not only through use the officers’ names, but via other facets of the lyrics. They reference Appellant’s purported knowledge of when the officers’ shifts end and, in light of such knowledge, that Appellant will “f--k up where you sleep.”
A concurring (and partially dissenting) opinion by Justice Wecht, joined by Donahue, faults the majority for not Majority considering "the more important question of whether the First Amendment requires proof of specific intent, or whether the Amendment would tolerate punishment of speech based upon proof of only a lesser mens rea such as recklessness or knowledge." The concurring opinion focuses more directly on the First Amendment: "It is crucial that we not forget that punishing a person for communicating a true threat, however reasonable it seems, is a content-based regulation of speech. As a general rule, the First Amendment prohibits content-based restraints." Justice Wecht's opinion also has an interesting and insightful discussion of various lyrics, although in the case of Knox's rap song, the words were
not general or vague as to the targets, a circumstance that would have militated against a finding of a true threat. Had the lyrics been directed at police officers generally, or had they complained about perceived abuses by unnamed police officers, those lyrics objectively could have been understood as political commentary or as a musical ventilation of frustration about the rappers’ real-life experiences. That is not what occurred in this case.
Given this conclusion in the concurring opinion, it would seem that the court did not need to reach the recklessness issue.
The Pennsylvania Supreme Court's opinion clearly rests on its interpretation of the First Amendment, so its amenable to a petition for certiorari. But that would seem to be a stretch.