Wednesday, June 29, 2022
The Supreme Court ruled today that States "structurally" waived their sovereign immunity from suits for money damages in cases under Congress's war powers, and that Congress can therefore authorize such suits against States, even in State courts.
The ruling means that a servicemember who returned with constrictive bronchitis can sue his State employer in State court for failing to accommodate his condition.
More broadly, it means that the Court has now recognized States' "structural" waiver of immunity in cases under the Bankruptcy Clause, under Congress's power of eminent domain, and (now) under Congress's war powers. ("Structural" waiver means that the States waived their sovereign immunity when they signed on to the Constitution in the first place, as part of the original Constitutional design. Congress can also abrogate State sovereign immunity by enacting legislation under its enforcement power under the Fourteenth Amendment; but that's a different thing.)
This is significant, because it gives structural waiver more teeth, and says that any categorical understanding of Alden v. Maine that Congress cannot authorize private-damage suits against States under its Article I powers is wrong. (Alden says that Congress can't abrogate State sovereign immunity using its Article I powers. Today's ruling says that Congress may, however, rely on structural waiver to authorize private-damage suits.)
The case, Torres v. Texas Department of Public Safety, tested the federal Uniformed Services Employment and Reemployment Rights Act of 1994, in particular, whether the Act validly authorized a servicemember's money-damages lawsuit against a State for failure to re-employ or accommodate the returned servicemember in their State job. Congress enacted the Act under its Article I powers "[t]o raise and support Armies" and "[t]o provide and maintain a Navy."
The Court said yes, it did. Justice Breyer wrote for the Court, joined by Chief Justice Roberts and Justices Sotomayor, Kagan, and Kavanaugh. The Court held that the text, history, and precedent of Congress's war powers all said that the States structurally waived their sovereign immunity when they joined the Union, and that Congress could (and did) therefore validly authorize suits against States for money damages for violations of the Act.
Justice Thomas dissented, joined by Justices Alito, Gorsuch, and Barrett. He argued that the Court was wrong on each point (text, history, precedent), and that Alden v. Maine "should have squarely foreclosed [the Court's] holding."
Tuesday, June 28, 2022
The Supreme Court on Monday ruled in Kennedy v. Bremerton School District that a public-school district violated the Free Exercise and Free Speech rights of a football coach who prayed at the 50-yard line after football games, and that the district could not justify its violations under the Establishment Clause.
The ruling is yet another move by the Court to expand free-exercise rights at the expense of anti-establishment concerns, and thus to allow and require religion to play a larger role in public life.
Still, it's not clear exactly how far this ruling will extend. That's because Court took pains to describe the coach's prayers as private religious exercises, contrary to the facts. By one reading, then, the case only allows a public employee to engage in private religious exercise that doesn't impede their job or coerce others to join. But don't expect the Court to limit this case to its facts. This is part of a larger move to expand free-exercise rights and limit the Establishment Clause, and we can expect the Court to use this case as a building block as it moves forward in this effort.
As part of the ruling, the Court abandoned the three-part Establishment Clause test under Lemon v. Kurtzman and replaced it with a "historical practices and understandings" test that "faithfully reflec[ts] the understanding of the Founding Fathers." (The Court acknowledged that this test includes an anti-coercion component, but it didn't specify exactly what coercion means.) It's not at all clear what that test means, or how lower courts will apply it. But again: this is part of the Court's larger move to expand free-exercise rights and limit the Establishment Clause, so we can expect the Court to apply this "historical practices and understandings" test consistently with that trend.
Justice Gorsuch wrote for the Court, joined by Chief Justice Roberts and Justices Thomas, Alito, Kavanaugh (except the part on the coach's free-speech claim), and Barrett. The Court held that the district violated the Free Exercise and Free Speech Clauses for disciplining the coach for "offer[ing] a quiet personal prayer" at the 50-yard line after football games. It went on to hold that the district couldn't justify its violations under any standard of scrutiny. It said that the district lacked a sufficient anti-establishment concern under its "historical practices and understandings" test, including that the district failed to demonstrate that the coach's prayers were impermissibly coercive.
Justice Sotomayor dissented, joined by Justices Breyer and Kagan. She argued that the Court got the facts wrong--this was no private prayer, but rather a very public exhibition--and that
Today's decision goes beyond merely misreading the record. The Court overruled Lemon v. Kurtzman and calls into question decades of subsequent precedents that it deems "offshoot[s]" of that decision. In the process, the Court rejects longstanding concerns surrounding government endorsement of religion and replaces the standard for reviewing such questions with a new "history and tradition" test. In addition, while the Court reaffirms that the Establishment Clause prohibits the government from coercing participation in religious exercise, it applies a nearly toothless version of the coercion analysis, failing to acknowledge the unique pressures faced by students when participating in school-sponsored activities. This decision does a disservice to schools and the young citizens they serve, as well as to our Nation's longstanding commitment to the separation of church and state.
Friday, June 24, 2022
The extraordinary ruling rolls back nearly 50 years of a fundamental right, and quite plainly lays the groundwork for overturning other fundamental rights.
The ruling allows and invites States to regulate abortion any way they wish, including criminalizing the procedure from the point of conception, with no life or health exception for the woman, and no exceptions for rape or incest. (The opinion doesn't compel this; it just allows and invites it.) Expect to see myriad regulations in about half the States (many of which have "trigger" laws that will regulate abortion as soon as the Court overturns Roe, that is, today), and a number of other States moving explicitly to protect abortion (some have already done so in one way or another).
Justice Alito wrote for the Court, joined by Justices Thomas, Gorsuch, Kavanaugh, and Barrett. He wrote that Roe was wrong when it was decided, and should be overturned.
Justice Thomas concurred, arguing that there's no such thing as substantive due process, and that the Court should reconsider all its substantive-due-process cases, including Griswold (right to contraception), Lawrence (right of two consenting adults to engage in private sexual conduct), and Obergefell (right to marry, including for same-sex couples).
Justice Kavanaugh concurred, arguing that the ruling only says that the Constitution is silent on abortion, and that the ruling kicks the issue to the States.
Chief Justice Roberts concurred in the result, arguing that while the viability line "never made any sense," the Court should nevertheless affirm the right to abortion to "extend far enough to ensure a reasonable opportunity to choose," but no further.
Justice Breyer dissented, joined by Justices Sotomayor and Kagan.
Thursday, June 23, 2022
The Supreme Court today struck New York's requirement that a person demonstrate "proper cause" in order to obtain a permit to carry a concealed handgun in public for self-defense. In so doing, the Court also clarified its approach to Second Amendment claims, rejecting the predominant intermediate-scrutiny test applied by the federal circuit courts in favor of an historical analysis.
The ruling means that states can't impose additional conditions on concealed carry permits that would require a person to demonstrate anything other than bare and general self-defense as a reason for seeking a permit. (The ruling seems to validate background checks for such permits, though. It also doesn't call into question restrictions on persons with criminal histories, for example, or restrictions based on unusual weapons in certain locations.) Beyond that, it's hard to say just how far the ruling may impact gun regulations. But it will impact them significantly, and we can expect to see a spate of challenges to test the limits of state regulation under this ruling.
(It's hard to say, too, how much the Court's historical approach may impact its analyses of other rights. The case contains some strong language, untethered to the Second Amendment, that suggests that history must be a primary guide in assessing other rights claims. We've already gotten a glimpse of this in the leaked draft opinion by Justice Alito in Dobbs, the abortion case. Today's ruling suggests that we'll see much more of this going forward.)
The Court split 6-3 along conventional lines. Justice Thomas wrote for the Court. Justice Breyer wrote the dissent.
The case, New York State Rifle and Pistol Association v. Bruen, is the first high-Court ruling on the Second Amendment since it applied the Second Amendment right to self-defense to state governments in McDonald v. Chicago, in 2010. Since that time, lower federal courts have coalesced around a two-part test for Second Amendment challenges. Under the first part, courts ask whether a regulation falls outside the scope of the Second Amendment, drawing on the history of the Second Amendment. If so, the courts uphold the regulation. If not, under the second part the courts determine how close a challenged regulation comes to the "core" of the Second Amendment right. If a regulation touches on the "core" right to self-defense within the home, courts apply strict scrutiny, and ask whether the regulation is narrowly tailored to achieve a compelling government interest. If a regulation doesn't touch on the "core," courts apply intermediate scrutiny, and ask only whether a regulation is substantially related to an important government interest. (These are both familiar "means-ends" tests that courts use in many other contexts. Strict scrutiny means that most or all government regulations will fail; intermediate scrutiny gives the government significantly more room to regulate.)
The Court today said that the second part is inapplicable. It held that courts shouldn't engage in means-ends scrutiny in assessing gun regulations, because the Second Amendment already encompasses means-ends considerations, because Heller and McDonald both applied an historical approach without considering means-ends scrutiny, and because courts aren't well suited to means-end analysis in this context, anyway.
Instead, the Court said that courts should assess state regulations under the Second Amendment based on an historical approach. In particular,
When the Second Amendment's plain text covers an individual's conduct, the Constitution presumptively protects that conduct. The government must then justify its regulation by demonstrating that it is consistent with the Nation's historical tradition of firearm regulation. Only then may a court conclude that the individual's conduct falls outside the Second Amendment's "unqualified command."
The Court ruled that New York's "proper cause" requirement failed this test. The Court said first that the Second Amendment covers an individual's right to carry a handgun outside the home for self-defense (because of the right to "bear" arms). It then said that New York's requirement had insufficient historical support. In short, "But apart from a handful of late-19th-century jurisdictions, the historical record compiled by [New York] does not demonstrate a tradition of broadly prohibiting the public carry of commonly used firearms for self-defense. Nor is there any such historical tradition limiting public carry only to those law-abiding citizens who demonstrate a special need for self-defense." (There's a ton to pick apart in the Court's lengthy armchair-historian historical analysis; I won't begin that here, except to note that the Court itself seems to see that its historical analysis raises more questions than it answers.)
Justice Alito concurred to address some of the points made by Justice Breyer in dissent.
Justice Kavanaugh concurred, joined by Chief Justice Roberts, to outline some of the limits of the ruling.
Justice Barrett concurred to point out some of the questions left open in the Court's historical analysis.
Justice Breyer dissented, joined by Justice Kagan and Sotomayor, to place the ruling in the context of recent mass shootings and general gun violence; to set the factual record right; to argue against the Court's historical approach (and its rejection of the two-part test used by the lower courts); and to argue that the Second Circuit rightly upheld New York's law.
Monday, May 2, 2022
The Supreme Court ruled today in Shurtleff v. City of Boston that the City violated free speech when it refused to permit an organization to fly a religious flag on one of its flagpoles. The ruling is a victory for the organization. Going forward, however, the City can either permit organizations to fly religious flags as part of its third-party-flag-flying program, redesign the program so that flag-flying amounts to government speech, or drop the program entirely and fly only U.S., state, and city flags.
The case raised religious-freedom issues, but only in the context of viewpoint discrimination (by religion) of free speech, not as separate religion-clause questions. Still, three Justices weighed in on the Establishment Clause, one (Justice Kavanaugh) to promote a neutrality approach, and two (Justices Gorsuch and Thomas) to denounce the Lemon test.
The case arose when Harold Shurtleff, director of an organization called Camp Constitution, requested permission to fly a Christian flag on one of the three flagpoles outside Boston City Hall. Although the City had long permitted various outside organizations to fly their own flags on one of the flagpoles, it declined Shurtleff's request out of fear of violating the Establishment Clause. Shurtleff sued, arguing that the denial violated free speech.
The Court today agreed. Justice Breyer wrote for the Court and first said that an outside flag flying on the city's flagpole did not amount to government speech. (The First Amendment does not restrict the government in its own speech. So if the flagpole amounted to government speech, the City would've prevailed against Shurtleff's free speech claim.) The Court looked to three types of evidence, drawn from Pleasant Grove City v. Summum and Walker v. Texas Div., Sons of Confederate Veterans, Inc., to determine whether the flag was government speech: (1) the history of flag-flying at City Hall; (2) the public's likely perception about whose speech (the City, or the private organization) a flag represented; and (3) the extent to which the City "actively shaped or controlled the expression." The Court held that the evidence went both ways, but "[a]ll told, Boston's lack of meaningful involvement in the selection of flags or the crafting of their messages leads the Court to classify the third-party flag raisings as private, not government, speech."
The Court went on to hold that the City's denial amounted to impermissible viewpoint discrimination, on the basis of religion.
The Court pointed out that the City could change its policies going forward and turn its flagpoles into pure government speech, thus dodging any free-speech restrictions on its program.
The ruling was unanimous, but four Justices added their own views. Justice Kavanaugh, writing only for himself, argued that the whole dispute "arose only because of a government official's mistaken understanding of the Establishment Clause." He wrote: "As this Court has repeatedly made clear, however, a government does not violate the Establishment Clause merely because it treats religious persons, organizations, and speech equally with secular persons, organizations, and speech in public programs, benefits, facilities, and the like."
Justice Alito, joined by Justices Thomas and Gorsuch, argued that the Court's three-factor test for determining when speech is government speech was wrong. He pushed for this test: "government speech occurs if--but only if--a government purposefully expresses a message of its own through persons authorized to speak on its behalf, and in doing so, does not rely on a means that abridges private speech."
Finally, Justice Gorsuch, joined by Justice Thomas, took aim at the Lemon test. He said that Boston's conclusion that flying Camp Constitution's Christian flag would violate the Establishment Clause rested on this flawed--and "abandoned"--test.
Friday, March 25, 2022
The Supreme Court today stayed a lower-court injunction against the Defense Department's COVID vaccine mandate for 35 Navy special warfare personnel. The ruling means that the Navy can impose the mandate (or consequences) on servicemembers pending their appeal to the Fifth Circuit.
The case, Austin v. U.S. Navy Seals 1-26, arose when 35 Navy servicemembers assigned to naval Special Warfare Command units sued the Defense Department, arguing that DOD's COVID vaccine mandate violated the Religious Freedom Restoration Act and the Free Exercise Clause. The district court ruled in their favor and entered a preliminary injunction against the mandate. It later declined to stay the injunction, however, and the Fifth Circuit affirmed. The government then sought a "partial stay" of the injunction at the Supreme Court.
Today the Court granted the stay in an unsigned order.
Justice Kavanaugh wrote a concurrence, arguing that the district court's preliminary injunction improperly inserted the court into the military chain of command.
Justice Alito dissented, joined by Justice Gorsuch. He argued that DOD set up an unduly burdensome process for religious exemptions, and that it hadn't granted a single one. He claimed that the military's summary rejection of religious exemptions wasn't narrowly tailored to meet its compelling interest in minimizing serious health risks to Navy personnel, and that the government treated servicemembers who sought medical exemptions more favorably than those who sought religious exemptions.
The Supreme Court earlier this week reversed the Wisconsin Supreme Court's ruling that adopted the governor's proposed state legislative map. The Court held that the state high court didn't adequately scrutinize the map under equal protection and sent the case back to the Wisconsin Supreme Court for a re-do. (The same day, the Court declined to reverse the state court's adoption of the governor's map for the state's congressional districts.)
The ruling is a short-term win for legislative Republicans against the Democratic governor. But because the state supreme court has a chance to reanalyze the governor's proposed map, the result may be the same--adoption of the governor's map.
The case, Wisconsin Legislature v. Wisconsin Elections Commission, arose when the state supreme court directed the governor and the state legislature, who couldn't agree on a map, to propose maps. The governor proposed a map that included a new seventh majority-black district--the current map includes only six--in order to comply with Section 2 of the Voting Rights Act. (Section 2 requires that a state's "political process" must be "equally open to participation" to members of racial minority groups, so that group members have an equal opportunity "to participate in the political process and to elect representatives of their choice.")
The court adopted the governor's map. The legislature then filed for a stay at the Supreme Court, arguing that the map used race in violation of the Equal Protection Clause.
The Court agreed. The Court noted that under equal protection a state's use of race as a "predominant" factor in redistricting must satisfy strict scrutiny. That means that a state must show that its use of race is narrowly tailored to meet a compelling government interest. The Court acknowledged that under Court precedent compliance with the Voting Rights Act is a compelling interest. But still, a state map must be narrowly tailored to comply with the VRA to satisfy strict scrutiny.
The Court held that the map failed this test. It said that the governor didn't sufficiently prove that a seventh majority-black district was necessary to comply with the VRA, or that the court didn't sufficiently assess whether the map was necessary to comply with the VRA. In particular, the Court said that the Wisconsin court failed to determine whether a race-neutral map that didn't include a seventh majority-black district could satisfy the VRA. (If so, the governor's map wouldn't be necessary to comply with the VRA.)
The Court remanded the case to the Wisconsin Supreme Court "to undertake a full strict-scrutiny analysis." This could mean that the court simply collects more evidence, sharpens its analysis, and re-adopts the governor's map. Or it could go in a different direction.
Justice Sotomayor dissented, joined by Justice Kagan. She argued that the Court's action was "unprecedented." That's because "summary reversals are generally reserved for decisions in violation of settled law," but law in this area "is hazy at best." She also claimed that the Court would do better to let an appropriate plaintiff bring a direct equal protection challenge or VRA challenge in the appropriate forum.
Thursday, March 24, 2022
The Supreme Court ruled today that a condemned prisoner was likely to succeed on his claim that prison authorities violated his religious rights when they denied his request to allow his pastor to pray and lay hands on him in the execution chamber.
The preliminary ruling only means that the prisoner's execution without his pastor is temporarily halted. Prison authorities could, of course, allow the pastor to pray and lay hands, and then schedule the execution.
The case, Ramirez v. Collier, arose when condemned prisoner John Ramirez asked prison authorities to allow his pastor to pray and lay hands on him in the execution chamber before and during his execution. Authorities denied the request, and Ramirez sued, arguing that the denial violated the Religious Land Use and Institutionalized Persons Act. Ramirez sought a temporary injunction halting his pastor-less execution.
The Court granted Ramirez that injunction. The Court held that the prison's failure to honor Ramirez's request amounted to a "substantial" burden on his religious exercise, "sincerely based on a religious belief." Moreover, the Court said that the prison's denial wasn't the "least restrictive means" of achieving its stated interests in denying the request. The Court held that the prison's denial thus failed RLUIPA's strict scrutiny test for actions that substantially burden religious exercise.
As the Court noted, this is not a ruling under the Free Exercise Clause.
The Supreme Court ruled today that the Board of Trustees of the Houston Community College System did not violate the First Amendment when it censured a member for misconduct. The ruling is narrow: it only means that an elected body can censure (without further punishment) a member of the body (but not necessarily a non-member) without violating free speech.
The case, Houston Community College System v. Wilson, arose when the HCC Board censured member David Wilson for various antics that were "not consistent with the best interests of the College" and "not only inappropriate, but reprehensible." Wilson sued, arguing that the censure and related actions by the Board violated the First Amendment. The Court only addressed the censure, however, and not related actions.
Justice Gorsuch wrote for a unanimous Court that legislative bodies have a long tradition of censuring members, and that there's "little reason to think the First Amendment was designed or commonly understood to upend this practice." Moreover, the particular facts of this case counseled against Wilson's claim. For one, he was an elected official, and "[i]n this country, we expect elected representatives to shoulder a degree of criticism about their public service from their constituents and their peers--and to continue exercising their free speech rights when the criticism comes." For another, the only adverse action that Wilson suffered was . . . free speech by his colleagues on the Board. "The First Amendment surely promises an elected representative like Mr. Wilson the right to speak freely on questions of government policy." But just as surely, it cannot be used as a weapon to silence other representatives seeking to do the same."
Thursday, September 2, 2021
The Supreme Court allowed Texas's SB8, the highly unusual and severely restrictive anti-abortion law that is specifically designed to evade judicial scrutiny, to go into effect. The Court issued a ruling last night that explained its decision. The text of SB8 is here.
The Court's ruling specifically says that it's not a decision on the constitutionality of Texas's law. Instead, the majority writes that there are too many questions about the technical aspects of the case (given the highly unusual way the law works), and suggests that it's the wrong case, at the wrong time, against the wrong parties.
But as a practical matter the ruling halts abortions in the state where a physician detects a fetal heartbeat (that is, about 85 percent of all abortions) unless and until a plaintiff can bring a successful challenge. And it all but foretells the demise of Roe v. Wade. (Even if the Court doesn't ultimately overturn Roe, this case gives states a roadmap for enacting legislation that eviscerates it.)
All this without full briefing and argument, on the "shadow docket."
The case, Whole Women's Health v. Jackson, tests the constitutionality of Texas's SB8. SB8 requires abortion providers to test for a fetal heartbeat before performing an abortion, and prohibits persons from performing an abortion when they detect a fetal heartbeat. It also prohibits "aiding and abetting" (including funding, even through insurance) of a post-fetal-heartbeat abortion. (Fetal heartbeat usually occurs around six weeks. That's well before the point of viability, and even before many women know they're pregnant. All that's to say that the restriction plainly violates Roe and Casey (and every other post-Roe ruling of the Court that prohibits a state from banning abortion pre-viability).)
But there's a twist. SB8 specifically prohibits state officers from enforcing the law. Instead, it authorizing private individuals to file private suits in state court against any person who provides an abortion in violation of the law. Upon a successful suit, the law requires state courts to enjoin a defendant from providing future abortions in violation of the law, and authorizes at least $10,000 in damages against a person who provides an abortion in violation of the law . . . for each abortion.
The law forbids state courts from awarding costs and attorney fees to successful defendants (which means that they must bear their own costs, even against frivolous and unsuccessful claims). It also says that a defendant cannot defend an action unless the Supreme Court rules that a defendant has third-party standing to assert the right to abortion on behalf of its patients (which it currently has, but that could change), upon a showing that the law imposes an undue burden on the right to abortion (the Casey standard that exists now, but also could (and is likely to) change).
All this means that private individuals, not the state, enforce the law. And at a very high cost. So high, in fact, that abortion providers have stopped providing post-heartbeat abortions, merely out of fear of incurring the costs of defending private lawsuits, even if those end up overturned.
It also means that the law is tricky to test, except as a defense to a private lawsuit (which, again, comes at a prohibitively high cost to abortion providers), and even then not at all a sure thing.
That's all by design. The Texas legislature specifically designed SB8 to effectively halt post-heartbeat abortions in the state and to evade federal judicial review.
And yesterday's opinion shows that it worked. Justices Thomas, Alito, Gorsuch, Kavanaugh, and Barrett wrote that there were too many questions about the federal court's ability to hear the case by an abortion provider against a private citizen and a state judge who might enforce the law through a private lawsuit. The Court said that it's not clear that the judge will enforce the law in a way "that might permit our intervention," that the Court can issue an injunction against a state judge to halt enforcement of the law, and that the private-citizen defendant will seek to enforce the law by filing a civil action against the plaintiff. The Court's answer: let the law go into effect until a plaintiff can successfully challenge it. (Again, it's not at all clear that a plaintiff could ever challenge it, given the highly unusual way the law works.)
Chief Justice Roberts and Justices Breyer, Sotomayor, and Kagan each dissented, and joined each other, except that Chief Justice Roberts didn't join the dissents of the other three. Chief Justice Roberts "would grant preliminary relief to preserve the status quo ante." Justice Breyer argued that "[t]he very bringing into effect of Texas's law may well threaten the applicants with imminent and serious harm" sufficient to allow the Court to grant relief. Justice Sotomayor argued that the Court "silently acquiesced in a State's enactment of a law that flouts nearly 50 years of federal precedent." "Because the Court's failure to act rewards tactics designed to avoid judicial review and inflicts significant harm on the applicants and on women seeking abortions in Texas, I dissent." Justice Kagan argued that the Court improperly took this extraordinary step without full briefing and argument, on the shadow docket.
Friday, August 27, 2021
The Supreme Court issued an emergency order late yesterday halting the CDC's eviction moratorium. While the ruling technically only vacates the stay of a lower court ruling striking the moratorium (and allows the government's appeal to move forward, but without a stay of the district court's ruling), it all but decides the underlying merits.
The Court said that the CDC lacked statutory authority to impose the moratorium. The applicable provision, 42 U.S.C. Sec. 264(a), states:
The Surgeon General, with the approval of the [Secretary of Health and Human Services], is authorized to make and enforce such regulations as in his judgment are necessary to prevent the introduction, transmission, or spread of communicable diseases from foreign countries into the States or possessions, or from one State or possession into any other State or possession. For purposes of carrying out and enforcing such regulations, the Surgeon General may provide for such inspection, fumigation, disinfection, sanitation, pest extermination, destruction of animals or articles found to be so infected or contaminated as to be sources of dangerous infection to human beings, and other measures, as in his judgment may be necessary.
In short, the Court said that the moratorium exceeded this authority, because it wasn't in line with the kind of specific examples in the second sentence. In other words, it read the second sentence as limiting the authority in the first sentence. It said that if the statute authorized the moratorium, then it could authorize nearly any measure--"a breathtaking amount of authority"--and this goes too far. The Court also said that Congress was "on notice" but failed to enact legislation to specifically reauthorize the moratorium. (Congress had previously specifically authorized the moratorium in COVID relief legislation, but that authorization lapsed, leaving only Section 264(a) as possible authority for the moratorium.)
The Court said that "[t]he applicants not only have a substantial likelihood of success on the merits--it is difficult to imagine them losing."
Justice Breyer dissented, joined by Justices Sotomayor and Kagan. He read the statute just the opposite--that the first sentence plainly authorizes a moratorium, and that the second sentence, if anything, only expands the authority in the first sentence. Justice Breyer also focused on the moratorium's tailoring (geographic and otherwise), and the harm that would likely result to tenants under the Court's holding.
The ruling halts the CDC's eviction moratorium. But Congress could change this by specifically reauthorizing the CDC to issue a moratorium.
The ruling does nothing to state and local moratoriums; it only addresses the CDC's moratorium.
The Fifth Circuit dismissed a case challenging San Antonio's removal of a monument of a confederate soldier for lack of standing. The ruling ends the challenge. (The statue is already gone.)
The case, Albert Sidney Johnston v. San Antonio, arose when the city removed a confederate monument in a public park. ASJ sued, arguing that the removal violated the First and Fourteenth Amendments.
The court held that ASJ lacked standing. It recognized that ASJ is the successor organization to the Barnard E. Bee chapter of the United Daughters of the Confederacy, which erected the monument in the first place. But it said that ASJ had no property interest in the public park (because "the land was generally inaliable and unassignable") and no right to use the land; and therefore the organization couldn't allege a harm under the First or Fourteenth Amendments.
Thursday, August 26, 2021
The Sixth Circuit yesterday upheld Michigan's mask mandate in schools against free exercise and equal protection challenges. The mandate expired since the lawsuit began, however, so the ruling only means that Michigan didn't violate the Constitution in implementing the mandate, and that it (and other jurisdictions in the Sixth Circuit) can do it again.
The case, Resurrection School v. Hertel, tested the Michigan Department of Health and Human Service requirement that all persons five years of age and older wear a mask in indoor public settings, including while attending public and private K-12 schools. The requirement contained certain exceptions for eating and drinking, for those "engaging in a religious service," for those who have health conditions that restrict their mask wearing, and others. Resurrection sued, arguing that the mandate violated free exercise and equal protection, among other claims.
While the case was pending, the Department rescinded the mask requirement. The Sixth Circuit nevertheless ruled that the case wasn't moot under the voluntary-cessation and capable-of-repetition-but-evading-review exceptions.
On the merits, however, the court rejected the plaintiffs' claims. The court ruled that the mask requirement was a religiously neutral law of general applicability, and easily satisfied rational basis review. As to religious neutrality, the court declined to look outside the schools for a secular comparator to religious schools (like gyms or movie theaters, as some courts have done), which might've demonstrated that the Department was targeting religious schools; instead, it said that the mask requirement treated religious schools exactly as it treated secular schools--the relevant comparator here.
Identifying a comparable secular activity for religious schools other than a public or private nonreligious school is difficult. Schools educating students in grades K-5 are unique in bringing together students not yet old enough to be vaccinated against COVID-19 in an indoor setting and every day. Accordingly, the proper comparable secular activity in this case remains public and private nonreligious schools.
Even under this broader conception of comparable secular activity, the [Department] orders are not so riddled with secular exceptions as to fail to be neutral and generally applicable. . . .
The court also rejected the plaintiffs' equal protection and substantive due process claims, holding that these were merely repackaged free exercise claims.
Wednesday, August 25, 2021
The Ninth Circuit denied a landlord association a preliminary injunction against Los Angeles's eviction moratorium, imposed in response to COVID. The court ruled that the landlords failed to demonstrate that they were likely to succeed on their Contracts Clause claim.
This appears to be the first appeals court ruling on an eviction moratorium under the Contracts Clause. Recall that the Supreme Court recently ruled against New York's eviction pause for self-certified hardship sufferers. But that case was under the Due Process Clause, not the Contracts Clause.
Neither case necessarily speaks to the validity of the CDC's moratorium. That's because opponents of the CDC's moratorium have raised a different claim--that the CDC lacked authority to impose it.
The case, Apartment Association v. City of Los Angeles, tested LA's eviction moratorium, which, among other things, restricted landlords' ability to evict tenants who suffered a COVID-related hardship. A landlord association sued, arguing that the moratorium violated the Contracts Clause, among other things. The association sought a preliminary injunction, but the district court denied the motion, and the Ninth Circuit affirmed. (While the association raised other claims, the Ninth Circuit ruling only addressed the Contracts Clause, because that's the only basis on which the association appealed.)
The court applied the two-part framework most recently articulated in Sveen v. Melin (2018). The court assumed without deciding that the association satisfied the first part--that the moratorium was a substantial impairment of a contractual relationship. Even if, the court said that the association failed to meet the second part--that the moratorium was an inappropriate or unreasonable way to achieve a significant and legitimate public purpose. The court wrote that "[t]he City fairly ties the moratorium to its stated goal of preventing displacement from homes, which the City reasonably explains can exacerbate the public health-related problems stemming from the COVID-19 pandemic."
The court rejected the association's effort to shoehorn a requirement into the Contracts Clause application to eviction moratoriums that would require that landlords receive reasonable rent during the period of the moratorium. The court said that the association ground this claim in earlier and outdated pre-Blaisdell caselaw that no longer guides the Court's approach to the Contracts Clause, and, in any event, those cases don't require that landlords receive reasonable rent during a moratorium. (Reasonable rent is a factor in the analysis, but it's not determinative.)
The Supreme Court denied the Biden Administration's request for a stay pending appeal of a lower court order directing the Biden Administration to reinstate the Migrant Protection Protocols program initiated by the Trump Administration. We posted on the lower court's order here.
The ruling means that the Biden Administration must send immigrants along the southern border to Mexico pending their asylum and deportation proceedings, consistent with the MPP, pending the Administration's appeal of the district court's order.
The ruling is a blow to the Biden Administration's effort to halt the controversial program. And while it's only preliminary--the ruling technically only orders the Biden Administration to reinstate the MPP program pending the Administration's appeal on the merits--it also doesn't bode well for the Administration. The very brief order stated that the Administration "failed to show a likelihood of success on the claim that the memorandum rescinding the Migrant Protection Protocols was not arbitrary and capricious." (In support, the Court cited Department of Homeland Security v. Regents of University of California, in which the Court rejected the Trump Administration's effort to rescind DACA as arbitrary and capricious in violation of the Administrative Procedure Act.)
Justices Breyer, Sotomayor, and Kagan indicated that they would have granted the Administration's motion for a stay, but they didn't say why.
Monday, August 23, 2021
Fourth Circuit Says Fed Courts Can't Hear State Claims of Teacher Fired for Using Wrong Pronouns for Student
The Fourth Circuit on Friday ruled that the federal courts lacked jurisdiction to hear a case of a Virginia teacher who was fired for using an incorrect pronoun for a student. The ruling means that the teacher's claims stay in the Virginia state courts.
The case, Vlaming v. West Point School Board, arose when teacher Peter Vlaming was fired for refusing to use a male pronoun for a student who recently gender-transitioned to male. Vlaming sued in Virginia state court, arguing that his termination violated state constitutional due process, free speech, and free exercise, and state statutory rights--all state claims. The Board moved to remove the case to federal court, arguing that Vlaming's complaint raised federal Title IX issues (because Title IX compelled the Board to take action against Vlaming), and that Vlaming's state constitutional claims turned on the parallel federal constitutional provisions, because Virginia interprets these state constitutional provisions in lock step with the federal Constitution.
The Fourth Circuit rejected the arguments. It ruled that a federal defense alone (here, Title IX) can't create federal jurisdiction where the complaint alleges no federal jurisdiction, and that Virginia's practice of interpreting its constitution in lock step with the federal Constitution can't create federal jurisdiction, because Virginia isn't required to interpret its constitution in this way, and it might not in any given case (including this one).
The ruling means that the federal courts won't hear the case. But Vlaming and the Board can make their arguments (including the Board's Title IX defense) when it proceeds in state court.
Sunday, August 22, 2021
The Arizona Supreme Court ruled that an income tax surcharge on high-income earners, the proceeds of which go to schools, is subject to the education expenditure caps in the state constitutional Education Expenditure Clause. The ruling will likely sharply limit the amount of tax-surcharge revenue that can go to the schools, sharply limiting the voter initiative that created the mechanism in the first place.
The case, Fann v. State of Arizona, tests the constitutionality of Prop 208, a 2020 voter initiative that imposes an income tax surcharge on high-income earners to provide direct funding to the schools. Prop 208 imposes a 3.5 percent surcharge on high-income earners, places those funds in a "student support and safety fund," and requires the fund to distribute the revenue to school districts and charter schools through "grants."
High-income earners sued, arguing that the provision violates the state constitutional Education Expenditure Clause on its face. This Clause, adopted by Arizona voters in 1980, sets an "aggregate expenditure limitation" for each Arizona school district. Put simply, it creates a cap on educational expenditures for each district. The provision contains an exception, however, for "grants, gifts, aid or contributions of any type except amounts received directly or indirectly in lieu of taxes received directly or indirectly from any private agency or organization, or any individual." The plaintiffs' challenge, therefore, raises the question whether Prop 208 is really a "grant" program.
The court ruled that it's not. "Considering the context of the Grant Exception, and in light of canons of construction, we conclude the more plausible reading of the Grant Exception is that the language 'received directly or indirectly from any private agency or organization, or any individual' modifies the entire sentence and limits the word 'grants' to private, non-governmental voluntary contributions." The court ruled that Prop 208 is facially unconstitutional insofar as it "incorrectly characterizes the allocated monies" to circumvent the Education Expenditure Clause and "to the extent allocated revenues exceed the expenditure limit set by the Education Expenditure Clause."
The court remanded the case to determine "whether such payments will in fact exceed the constitutional expenditure limitation." But it gave a clue as to how this'll all come out:
if the expenditure limit remains at current levels, Prop. 208's projected $827 million in revenues will far outpace its permissible spending, even accounting for Prop. 208 expenditures that are not subject to the expenditure limit. Furthermore, the EEC projects that the expenditure limit amount will decrease by 4.6%, or approximately $300,000,000. These facts strongly suggest that Prop. 208 will produce far more revenue than it can constitutionally spend.
The court also held that Prop 208 did not violate the state constitutional Tax Enactment Clause. That Clause says that an "Act that provides for a net increase in state revenues" has to get a super-majority in each house and the governor's signature to become effective. The court said that the Clause doesn't apply to voter initiatives like Prop 208, however, because a voter initiative isn't an "Act": the legislature enacts "Acts," while voter initiatives are "measures."
Saturday, August 21, 2021
The Tenth Circuit ruled that three part of the Kansas Farm Animal and Field Crop and Research Facilities Protection Act violated free speech. The ruling enjoins the government from enforcing those provisions.
The case, Animal Legal Defense Fund v. Kelly, tests three part of the Act, which, as a general matter criminalizes certain actions directed at an animal facility without effective consent of the owner of the facility and with intent to damage the enterprise of the facility. ALDF sued, arguing that the Act violated free speech, because ALDF investigators sometimes lie about their association with ALDF in order to get jobs at the facilities under cover, and would therefore violate the Act.
The Tenth Circuit agreed. The court examined three parts of the Act: subsection (b), which forbids acquiring or exercising control over an animal facility without effective consent of the owner and with intent to damage the enterprise; subsection (c), which forbids recording, attempting to record, or trespassing to record on an animal facility's property without effective consent of the owner and with intent to damage the enterprise; and subsection (d), which forbids trespassing on an animal facility without effective consent of the owner and with intent to damage the enterprise. The court ruled that these were viewpoint-based restrictions on speech (because they each require the "intent to damage the enterprise," as opposed, for example, to laud the enterprise), and subject to strict scrutiny. The court said that Kansas didn't even bother to try to justify the provisions under strict scrutiny, and therefore they failed.
Judge Hartz dissented, arguing, among other things, that property owners have a right to exclude that the majority's approach ignores; "that a fraudulently obtained consent to enter another's property, particular the type of entry desired by Plaintiffs, is not protected by the First Amendment"; and that the court should've excised any offending elements of the Act rather than ruling them unconstitutional.
The Ninth Circuit ruled this week that OAN failed to state a case for defamation against MSNBC host Rachel Maddow for stating that OAN "really literally is paid Russian propaganda." The ruling ends OAN's defamation suit.
The case, Herring Networks, Inc. v. Maddow, arose when Maddow ran a segment on OAN reporter Kristen Rouz, who, according to a story in the Daily Beast, also wrote stories for pay for Sputnik. At one point during the longer segment, Maddow said, "In this case, the most obsequiously pro-Trump right wing news outlet in America really literally is paid Russian propaganda." Herring then sued for defamation, and Maddow moved to strike the complaint under California's anti-SLAPP statute.
The Ninth Circuit ruled for Maddow. The court examined the broad context of the statement, the limited context of the statute, and the ability to determine the truth or falsity of the statement and concluded that it simply wasn't a statement of fact that could support a defamation claim:
In sum, two of the factors outlined in [circuit precedent]--the general context and the specific context of the contested statement--negate the impression that the statement is an assertion of objective fact. While the third factor [the ability to determine the truth or falsity of the statement] tilts in the other direction, we conclude that Maddow's contested statement fits within "the 'rhetorical hyperbole' [that] has traditionally added much to the discourse of our Nation."
In an order by Justice Alito, the Supreme Court late yesterday temporarily stayed the district court injunction directing the Biden Administration to reinstate former President Trump's MPP policy until Tuesday at midnight. The brief order will allow the full Court to consider the Biden Administration's emergency application for a stay pending appeal.
Recall that the district court issued a permanent, nationwide injunction directing the Biden Administration to reinstate the MPP policy and send certain immigrants to Mexico pending their deportation proceedings. The Administration sought a stay of the injunction pending appeal, but the Fifth Circuit declined. The Administration then sought an emergency stay at the Supreme Court.
The Supreme Court's order temporarily stays the injunction until Tuesday. It also directs the plaintiffs in the case to file their response to the Administration's emergency application by 5 p.m. on Tuesday. A Court order will presumably follow before midnight Tuesday.
All this is still preliminary, though: the Biden Administration is still pursuing its appeal on the merits to the Fifth Circuit. The Court's ruling late yesterday only means that the Biden Administration need not reinstate the MPP policy pending its appeal of the district court order until Tuesday, and perhaps later, depending on what the Court says.