Tuesday, December 18, 2018

Tenth Circuit Judicial Council Tosses Complaints Against Justice Kavanaugh

The Judicial Council of the Tenth Circuit today tossed out the scores of complaints against Justice Kavanaugh on the ground that as a Supreme Court justice he is no longer subject to the Judicial Conduct and Disability Act. Thus, the Council lacked jurisdiction and dismissed the complaints.

Chief Justice Roberts referred to the Tenth Circuit 83 complaints, alleging that Justice Kavanaugh testified falsely to Congress in his confirmation hearings about his role in the Bush administration, that he testified falsely about his personal conduct, and that he displayed partisan bias and lack of appropriate judicial temperament--all in violation of various canons of the Code of Conduct for United States Judges.

But the Judicial Council of the Tenth Circuit ruled that the Act "effectively precludes action against an individual who is no longer a circuit, district, bankruptcy or magistrate judge." "In conclusion, Congress has not extended the Judicial Conduct and Disability Act to Supreme Court justices."

Still, this might not end the matter. As the ruling states,

The importance of ensuring that governing bodies with clear jurisdiction are aware of the complaints should also be acknowledged. Accordingly, we request that the Committee on Judicial Conduct and Disability of the Judicial Conference of the United States forward a copy of this Order to any relevant Congressional committees for their information.

. . .

As with any misconduct complaint . . . any complainant has a right to seek review of this Order by filing a petition for review by the Judicial Council . . . .

December 18, 2018 in Cases and Case Materials, Courts and Judging, Jurisdiction of Federal Courts, News, Opinion Analysis | Permalink | Comments (0)

Friday, December 14, 2018

Court Strikes the Entire Affordable Care Act

Judge Reed O'Connor (N.D. Tex.) today issued a sweeping and breathtaking ruling striking the entire Affordable Care Act. Judge O'Connor ruled that the individual mandate could no longer be supported by Congress's taxing power; that the individual mandate is not severable from the rest of the ACA; and that therefore the entire ACA must fail.

The case, Texas v. United States, arose after Congress passed the 2017 Tax Cuts and Jobs Act, which set the tax-penalty for noncompliance with the ACA's individual mandate at $0. Texas, a handful of other states, and a couple individuals sued, arguing that the individual mandate could no longer be supported by Congress's taxing power (as the Court held in NFIB), and, because it also couldn't be supported by Congress's Commerce Clause power (also as the Court held in NFIB), it was unconstitutional. Moreover, they argued that it was non-severable from the non-discrimination and community rating provisions of the ACA, and so therefore those provisions needed to fall, too.

The court agreed. Judge O'Connor ruled that the tax-penalty of the individual mandate could no longer be supported by Congress's taxing authority (in light of the $0 penalty in the 2017 tax act, which means that the penalty no longer raises money for the government, the touchstone for the taxing power). And because the mandate couldn't stand alone, without a tax penalty, because it can't be supported by the Commerce Clause, it is unconstitutional. But Judge O'Connor went a step farther and ruled that the individual mandate was non-severable from the entire ACA. The court looked to the statutory language (including congressional findings, which stated that the individual mandate was an essential part of the integrated ACA in order to ensure broad health insurance coverage and low costs), and the Court's ruling in NFIB to concluded that the entire Act was non-severable. As a result, the court struck the entire Act.

The ruling came as a declaratory judgment and summary judgment in favor of the plaintiffs, despite the fact that the plaintiffs originally sought only declaratory relief and a preliminary injunction. 

Unless stayed pending appeal (not in this ruling), the ruling gives cover to the government to start to dismantle the entire ACA (or at least those provisions that it hasn't already started to dismantle). 

December 14, 2018 in Cases and Case Materials, Commerce Clause, Congressional Authority, News, Opinion Analysis, Taxing Clause | Permalink | Comments (0)

Ninth Circuit Halts Interim Rules on ACA Contraception Exemptions, but Only as to Plaintiff States

The Ninth Circuit upheld a lower court's preliminary injunction barring the government from enforcing its interim final rules allowing employers and organizations more freely to exempt themselves from the Affordable Care Act's contraception requirement. But at the same time, the court narrowed the nationwide injunction to just the plaintiff states.

The ruling is a significant victory for the plaintiffs. But it may be short-lived, as the government moves to implement final rules (the same as the interim rules, published in November) in January.

The case, California v. Azar, involves several states' (California, Delaware, Virginia, Maryland, and New York) challenge to the government's 2017 interim final rules substantially loosening the exemption standard for organizations and persons to get out from under the Affordable Care Act's contraception requirement. (Recall that the Supreme Court declined to rule on the government's prior exemption in Zubik v. Burwell.) The two IFRs categorically exempted certain religious employers and essentially made the requirement optional for anyone else who has a "sincerely held moral conviction" to contraception.

The plaintiffs argued that the IFRs violated the Administrative Procedure Act (because the agencies didn't use APA notice-and-comment procedures in implementing the IFRs), equal protection, and the Establishment Clause. The Northern District of California held that they were likely to succeed on their APA claim, and issued a nationwide injunction.

The Ninth Circuit affirmed, but limited the injunction to the plaintiff states.

The court first held that the case wasn't moot. The court said that while the agencies published final rules in November, those rules won't go into effect until January 14, 2019. In the meantime, the IFRs are in effect. And because the plaintiffs challenge the IFRs, their case isn't moot.

The court next held that the plaintiffs had standing, based on their increased costs for their already-existing contraception programs. "The states show, with reasonable probability, that the IFRs will first lead to women losing employer-sponsored contraceptive coverage, which will then result in economic harm to the states" because the states will have to fill the coverage loss through their existing free or subsidized contraceptive programs. 

As to the APA, the court ruled that the plaintiffs were likely to succeed--that HHS violated notice-and-comment rulemaking under the APA. The court held that the government's interests in eliminating regulatory uncertainty, eliminating RFRA violations, and reducing the cost of health insurance were insufficient to bypass notice-and-comment procedures. As to regulatory uncertainty, the court said it "is not by itself good cause" to bypass APA procedures. As to RFRA, the court said that "the agencies' reliance on this justification was not a reasoned decision based on findings in the record." And as to reducing health insurance costs, the court said that "[t]his is speculation unsupported by the administrative record and is not sufficient to constitute good cause." The court also said that the agencies lacked statutory authority to bypass notice-and-comment procedures. 

But the court narrowed the district court's nationwide preliminary injunction, and applied it only to the plaintiff states.

Judge Kleinfeld dissented, arguing that the plaintiffs lacked standing, because "their injury is what the Supreme Court calls 'self-inflicted,' because it arises solely from their legislative decisions to pay" for contraception-access programs.

December 14, 2018 in Cases and Case Materials, Courts and Judging, Executive Authority, Jurisdiction of Federal Courts, Mootness, News, Opinion Analysis, Standing | Permalink | Comments (0)

Thursday, December 13, 2018

Fifth Circuit Dismisses Texas's Plea for Declaratory Relief on Anti-Sanctuary Bill

The Fifth Circuit dismissed Texas's case seeking a declaration that its anti-sanctuary-city bill, SB4, did not violate the Constitution. The ruling follows its opinion earlier this year upholding most of the law.

The upshot: SB4 mostly stays on the books.

In this most recent case, Texas v. Travis County, the state sought declaratory relief that SB4 did not violate various provisions of the Constitution. (Recall that SB4 is a state law that requires jurisdictions within the state to comply with federal immigration detainer requests--and, to that extent, not be sanctuary jurisdictions.) The defendants moved to dismiss for lack of standing. But the court held that under Franchise Tax Board it lacked federal-question jurisdiction (and therefore didn't reach the standing question). Here's why (quoting Franchise Tax Board):

States are not significantly prejudiced by an inability to come to federal court for a declaratory judgment in advance of a possible injunctive suit by a person subject to federal regulation. They have a variety of means by which they can enforce their own laws in their own courts, and they do not suffer if the [constitutional questions that] such enforcement may raise are tested there.

...

[U]ntil Congress informs us otherwise, such a suit is not within the original jurisdiction of the United Sates district courts.

Because of the earlier ruling upholding SB4--and because this case merely dismisses Texas's suit for lack of jurisdiction--this case has no effect on SB4. As the court said, "[M]ost of SB4 is now in effect."

 

December 13, 2018 in Cases and Case Materials, Courts and Judging, Jurisdiction of Federal Courts, News, Opinion Analysis | Permalink | Comments (0)

Second Circuit Lets Eviction-Settlement Challenges Move Forward

The Second Circuit ruled that a case challenging New York officials' eviction-settlement practices can move forward in federal court, despite the fact that a state-court judge ratified the settlements. The ruling is a victory for victims of the practices, and says that a civil-rights defendant can't side-step federal jurisdiction by having a state-court judge merely ratify the defendant's actions.

The case, Cho v. City of New York, arose when New York officials coerced individuals and businesses into signing settlement agreements waiving various constitutional rights in order to avoid eviction. The settlement agreements were subsequently "so-ordered" by state-court judges.

Plaintiffs sued in federal court under Section 1983, but the defendants won a district court ruling dismissing the case based on the Rooker-Feldman doctrine. (That doctrine says that a federal district court can't hear an appeal of a state-court judgment.) The Second Circuit reversed.

The court ruled that the state-court judges' acts of "so-order[ing]" the settlement agreements didn't turn the plaintiffs' federal-court case into a de facto appeal (that would have been barred by Rooker-Feldman). Instead, the state-court judges merely ratified the settlements. Moreover, the plaintiffs' harm was caused by the coerced settlement agreements themselves, not by the state-court ratification. The court explained:

The instant case thus does not entail the evil Rooker-Feldman was designed to prevent. Plaintiffs are attempting to remedy an alleged injury caused when, prior to any judicial action, they were coerced to settle, not an injury that flows from a state-court judgment. By allowing an action such as this to go forward, we do not risk turning our federal district courts into quasi-appellate courts sitting in review of state-court decisions.

The ruling only allows the case to move forward in federal court; it says nothing about the merits.

December 13, 2018 in Cases and Case Materials, Courts and Judging, Jurisdiction of Federal Courts, News, Opinion Analysis | Permalink | Comments (0)

Wednesday, December 12, 2018

Court Tosses San Francisco's Challenge to Trump Walk-Back of Regulatory Guidance

Judge Jon S. Tigar (N.D. Cal.) ruled that San Francisco lacked standing to challenge the Trump Administration's rescission of administrative guidance documents related to various federal civil rights and immigration statutes. The ruling is a victory for the Trump Administration and its deregulatory agenda.

The case, San Francisco v. Whitaker, arose out of President Trump's executive order instructing agencies to identify regulatory actions that were "outdated, unnecessary, or ineffective" as candidates for repeal, modification, or replacement. Then-AG Sessions issued a memo stating that DOJ would no longer "issue guidance documents that purport to create rights or obligations binding on persons or entities outside the Executive Branch (including state, local, and tribal governments)." DOJ subsequently announced that it would rescind 25 guidance documents.

San Francisco sued to stop the DOJ from rescinding eight of those, arguing that the rescission was arbitrary and capricious under the Administrative Procedure Act. (The eight relate to the ADA, the FHA, the INA, and various fee and fine practices.)

The court ruled that San Francisco lacked standing. While the court said that San Francisco could assert procedural standing or organizational standing, it still needed to show a harm--and it didn't. The city's theory of harm varied depending on the particular guidance document, but in general the court held that it failed to show that rescission would interfere with its interest in regulation, or increase the risk of enforcement action against it, or that it failed to show a sufficiently tight connection between the rescission and any harm to the city.

The ruling means that the rescission can move forward, ultimately curbing federal regulation of these provisions. Establishing standing to challenge a roll-back on regulations is always trickier than establishing standing to challenge regulations themselves, and it's not clear if or how another plaintiff might show a harm to challenge these or other rescission documents.

December 12, 2018 in Courts and Judging, Executive Authority, Jurisdiction of Federal Courts, News, Opinion Analysis, Standing | Permalink | Comments (0)

Can President Trump be Criminally Charged? And Should He Be?

In the wake of the government's release of sentencing memos for Michael Cohen--and their fingering of President Trump for unlawful acts during the campaign--there's renewed interest in whether a president can be criminally charged.

We posted previously on this and related issues here (on President Trump's lawyers' take on the question) and here (on law profs' response). And here's the 2000 OLC memo.

Marty Lederman has an op-ed in today's NYT, where he argues that President Trump could be indicted, but that there are bigger fish to fry in the Mueller investigation:

Perhaps Mr. Trump will become the first president to face criminal charges. Perhaps not. But that's the least of it. We'd be wise to shift our attention from the unlikely possibility of a trial to the much more important matter of what the Mueller investigation might tell us about Mr. Trump's relationships with Russia and whether they compromise his ability to protect and defend the nation.

December 12, 2018 in Executive Authority, News, Separation of Powers | Permalink | Comments (0)

Tuesday, December 11, 2018

Call for Papers: Michigan Junior Scholars Conference

Michigan Law posted this announcement and call for papers for its Fifth Annual Junior Scholars Conference.

Submissions (600-word abstract, plus a CV) are due by January 12, 2019. From the call:

The conference provides junior scholars with a platform to present and discuss their work with peers, and to receive detailed feedback from senior members of the Michigan Law faculty. The Conference aims to promote fruitful collaboration between participants and to encourage their integration into a community of legal scholars. The Junior Scholars Conference is intended for academics in both law and related disciplines. Applications from postdoctoral researchers, lecturers, fellows, SJD/PhD candidates, and assistant professors (pre-tenure) who have not held an academic position for more than four years are welcomed.

 

December 11, 2018 in Conferences, News, Scholarship | Permalink | Comments (0)

District Court Dismisses FACA Challenge to Trump's Infrastructure Council

Judge Ellen Segal Huvelle (D.D.C.) dismissed a suit challenging President Trump's Infrastructure Council under the Federal Advisory Committee Act.

The ruling in Food & Water Watch v. Trump arose out of the plaintiff's FACA challenge to the Council, which was (or would have been) designed to give the President advice on infrastructure policy. The plaintiff claimed that the Council was stacked with President Trump's friends, and thus violated FACA's membership and transparency requirements.

The problem: the Council never got off the ground. For that reason, the court said it wasn't a "committee" or even a "de facto committee" under FACA, and the court therefore lacked jurisdiction.

Judge Huvelle emphasized how narrowly courts interpret FACA in order to avoid a separation-of-powers problem. Citing In re Cheney, she wrote

Congress could not have meant that participation in committee meetings or activities, even influential participation, would be enough to make someone a member of the committee . . . . Separation-of-powers concerns strongly support this interpretation of FACA. In making decisions on personnel and policy, and in formulating legislative proposals, the President must be free to seek confidential information from many sources, both inside the government and outside.

The court also denied the plaintiff's request for further discovery.

December 11, 2018 in Cases and Case Materials, Congressional Authority, Courts and Judging, Executive Authority, Jurisdiction of Federal Courts, News, Opinion Analysis, Separation of Powers | Permalink | Comments (0)

Organizations Have Standing to Challenge USDA Inaction on Birds (again), but Lose (again)

Judge Trevor N. McFadden (D.D.C.) ruled in American Anti-Vivisection Society v. USDA that plaintiff organizations had standing to sue the USDA for its 14-year failure to extend protections under the Animal Welfare Act to birds. But at the same time, the court ruled that the plaintiffs' Administrative Procedure Act claims failed.

The case is a reprise of PETA v. USDA, a D.C. Circuit ruling over 3 years ago.

The court recognized the D.C. Circuit's "permissive" rules on organizational standing, and said that while this case presented standing difficulties, it fell in line with PETA:

But the Plaintiffs' organizational standing allegations are similar enough to PETA II to dictate the outcome here. As there, the Plaintiffs have, "at the dismissal stage, adequately shown that the USDA's inaction injured [their] interests and, consequently, [they have] expended resources to counteract those injuries." They have alleged with enough supporting factual allegations that the challenged agency decisions "deny [them] access to information and avenues of redress they wish to use in their routine information-dispensing, counseling, and referral activities." In other words, they have plausibly "alleged inhibition of their daily operations, . . . an injury both concrete and specific to the work in which they are engaged."

This injury--an inability to gather information, publish reports, and help reduce the neglect and abuse of birds--is traceable to the Department's inaction and could be redressed by an order compelling the Department to issue regulations. And the Plaintiffs have pointed to webinars and other educational programs they must produce in the absence of applicable avian regulations. The Court finds that the Plaintiffs have standing and that it has jurisdiction to consider the merits of their arguments.

Nevertheless, the court ruled that the plaintiffs' APA claims failed, because the USDA took the "legally required" action (even if not the bird rules), and because the USDA's inaction isn't a "final agency action."

December 11, 2018 in Cases and Case Materials, Courts and Judging, Jurisdiction of Federal Courts, News, Opinion Analysis, Standing | Permalink | Comments (0)

Friday, December 7, 2018

William Barr's Unitary Executive

If you want to know what William P. Barr, President Trump's nominee for Attorney General, thinks about congressional interference with executive-branch operations and the "unitary executive," check out his 1989 memo as assistant attorney general in the OLC. (Spoiler alert: He's an aggressive proponent of a unitary executive, in ways both familiar and less familiar in today's constitutional politics.)

Notably--and contrary to a trend among unitary executive advocates--he doesn't disavow Morrison v. Olson (at least not in this memo); he just says that most or all independent offices are distinguishable from the independent counsel (and therefore unconstitutional even under that case). Given the current political winds, it seems likely his position on Morrison will likely change. In any event, this doesn't necessarily say anything about his position on Special Counsel Mueller: Mueller was appointed pursuant to DOJ regs, not a congressional statute, so doesn't raise the same separation-of-powers concerns as the old independent counsel.

The memo outlines these "Common Legislative Encroachments On Executive Branch Authority":

  • Interference with the President's Appointment Power, including incompatibility and ineligibility issues (e.g., appointing members of Congress to executive-branch commissions that have more than advisory roles), directing the president to appoint from an approved list of candidates, and delegations of authority to positions outside the executive branch (e.g., qui tam statutes).
  • The creation of hybrid commissions that reach into executive authority.
  • Attempts to constraint the president's "removal power."
  • "Micromanagement of the Executive Branch," by mandating certain executive processes and bureaucratic organization.
  • "Attempts to Gain Access to Sensitive Executive Branch Information."
  • Legislative vetoes (even after Chadha).
  • Requirements that executive officials submit legislation to Congress.
  • Restrictions on the president's recess appointment power.

 

 

December 7, 2018 in Congressional Authority, Executive Authority, News, Separation of Powers | Permalink | Comments (0)

Thursday, December 6, 2018

Check it Out: Greenhouse on How President George H.W. Bush Filled Supreme Court Vacancies

Check out Linda Greenhouse's piece in the NYT, How to Fill a Supreme Court Vacancy.

My goal here is not to appraise the two Bush 41 justices. It's to compare the approaches--one conciliatory, the other, confrontations--that in the space of a single year (July 1990 to July 1991) produced such different nominees. Those approaches remain today as contrasting archetypes for how to fill a Supreme Court vacancy.

December 6, 2018 in Courts and Judging, News | Permalink | Comments (0)

Wednesday, December 5, 2018

Power Grabs in Wisconsin and Michigan; Voting Fraud Allegations in North Carolina

Here are some useful resources--some of the best (most detailed) reports I could find:

-The Brennan Center has a thorough description, with links, to the lame-duck legislative goings-on in Wisconsin and Michigan.

-The New Yorker has a detailed piece on voting fraud allegations in North Carolina.

-The Hill reports that Rep. Steny Hoyer (D-Md.) said that congressional Democrats won't seat a North Carolina Republican if allegations of fraud in NC-9 carry over to next year.

December 5, 2018 in News | Permalink | Comments (0)

The State Funeral Service for Former President George H.W. Bush

C-Span has video and complete transcripts of the full service here, including the eulogy by former President George W. Bush.

December 5, 2018 in Executive Authority, News | Permalink | Comments (0)

Check it Out: Goitein on the President's Statutory Emergency Powers

Check out Elizabeth Goitein's piece in The Atlantic on the president's statutory emergency powers, and their potential misuse. From the piece:

the president has access to emergency powers contained in 123 statutory provisions, as recently calculated by the Brennan Center for Justice at NYU School of Law, where I work. These laws address a broad range of matters, from military composition to agricultural exports to public contracts. For the most part, the president is free to use any of them; the National Emergencies Act doesn't require that the powers invoked relate to the nature of the emergency. Even if the crisis at hand is, say, a nationwide crop blight, the president may activate the law that allows the secretary of transportation to requisition any privately owned vessel at sea. Many other laws permit the executive branch to take extraordinary action under specified conditions, such as war and domestic upheaval, regardless of whether a national emergency has been declared.

December 5, 2018 in Congressional Authority, Executive Authority, News, Separation of Powers | Permalink | Comments (0)

Third Circuit Upholds New Jersey's Large Capacity Magazine Prohibition

In its opinion in Association of New Jersey Rifle and Pistol Clubs v. Attorney General of New Jersey, a divided panel of the Third Circuit rejected a challenge to New Jersey's prohibition of large capacity magazines (LCM), defined as magazines capable of holding more than ten rounds of ammunition, N.J. Stat. Ann. 2C:39-1(y), 2C:39-3(j).  The challengers sought a preliminary injunction based on violations of the Second Amendment, the Equal Protection Clause, and the Fifth Amendment's Taking Clause; after an evidentiary hearing the district judge denied the injunction.

On the Second Amendment claim, the Third Circuit majority agreed with the general analysis laid out by the Second Circuit in New York State Rifle & Pistol Ass’n, Inc. v. Cuomo (2015). Judge Patty Shwartz, writing for the majority, first determined that a "magazine" is an arm regulated under the Second Amendment. Judge Shwartz then considered whether the regulation of a specific type of magazine, namely an LCM, “imposes a burden on conduct falling within the scope of the Second Amendment’s guarantee," by inquiring whether the type of arm at issue is commonly owned, and “typically possessed by law-abiding citizens for lawful purposes." The court noted that the record showed there were "millions" of such magazines and then assumed "without deciding that LCMs are typically possessed by law-abiding citizens for lawful purposes and that they are entitled to Second Amendment protection." The court then turned to the level of scrutiny to be applied — a question left open by the Court in Heller v. D.C. — by inquiring how severely the challenged regulation "burdens the core Second Amendment right."

440px-Double_drum_magazine_filled.svgHere, the court held that the New Jersey law did not severely burden the core Second Amendment right to self-defense in the home for five reasons and thus determined that intermediate scrutiny should apply. The court then held that the State of New Jersey has, undoubtedly, a significant, substantial and important interest in protecting its citizens’ safety," including reducing the lethality of active shooter and mass shooting incidents. The court rejected the challengers' argument that the rarity of such incidents should negate the state's interest, finding instead that the "evidence adduced before the District Court shows that this statement downplays the significant increase in the frequency and lethality of these incidents."  The court further found that the LCM ban was a sufficiently close fit to the state's interest in promoting safety.

It was on the Second Amendment issue that Judge Stephanos Bibas dissenting, arguing that strict scrutiny should apply and that even if it does not, the New Jersey statute fails intermediate scrutiny. For Judge Bibas, although the majority stands in good company: five other circuits have upheld limits on magazine sizes," the courts err "in subjecting the Second Amendment to different, watered-down rules and demanding little if any proof."

While the Second Amendment challenge was at the heart of the case, the majority also rejected the challengers' claims under the Takings Clause and the Equal Protection Clause. On the Takings Clause, the majority held that there is not actual taking, and no "regulatory taking because it does not deprive the gun owners of all economically beneficial or productive uses of their magazines." On the Equal Protection Clause, the challengers faulted the Act because it allows retired law enforcement officers to possess LCMs while prohibiting retired military members and ordinary citizens from doing so.The majority did not engage in a robust analysis, but held that "retired law enforcement officers are not similarly situated to retired military personnel and ordinary citizens, and therefore their exemption from the LCM ban does not violate the Equal Protection Clause."

In short, the Third Circuit's opinion is part of a trend of determining that intermediate scrutiny applies to various regulations of high capacity firearms or magazines and upholding state regulation. Most likely a petition for certiorari will follow this opinion and it will be interesting to see whether the United States Supreme Court continues its own trend of denying such petitions.

[image: double-drum magazine, which holds 100 rounds, via]

December 5, 2018 in Criminal Procedure, Equal Protection, Fundamental Rights, Opinion Analysis, Recent Cases, Supreme Court (US) | Permalink | Comments (0)

Tuesday, December 4, 2018

Ninth Circuit Strikes Law Criminalizing "encouraging or inducing" Aliens to Come or Stay in U.S.

The Ninth Circuit ruled in U.S. v. Sineneng-Smith that a federal statute that criminalizes "encourag[ing] or induc[ing]" an alien to come to, to enter, or to reside in the United States violates the First Amendment. The court ruled that the statute was unconstitutionally overbroad and struck it.

The statute, 8 U.S.C. Sec. 1324(a)(1)(A)(iv), permits a felony prosecution of any person who "encourages or induces an alien to come to, enter, or reside in the United States" if the encourager knew, or recklessly disregarded "the fact that such coming to, entry, or residence is or will be in violation of law."

The court held that the law bans substantially more speech than the First Amendment allows under the incitement doctrine, or as speech integral to criminal conduct. (The court reminds us that simply being in the United States isn't a crime.) Here's an example the court quotes from an amicus brief: "a loving grandmother who urges her grandson to overstay his visa," by saying "I encourage you to stay." The statement violates Subsection (iv), but:

Again, in Williams, the Supreme Court used almost identical language--"I encourage you to obtain child pornography"--to describe abstract advocacy immune from government prohibition. The government has not responded persuasively to this point; it simply argues that the grandmother would not be subject to criminal charges because her statement was "not accompanied by assistance or other inducements." However, as we have detailed above, Subsection (iv) does not contain an act or assistance requirement.

Another example: "marches, speeches, publications, and public debate expressing support for immigrants." And other: an attorney who tells a client that the client should remain in the country while contesting removal, because non-citizens in the U.S. have greater due process rights than non-citizens outside the U.S.

The court rejected the government's limiting interpretation--that the statute only prohibits a person from (1) knowingly undertaking (2) a non-de-minimis (3) act that (4) could assist (5) a specific alien (6) in violating (7) civil or criminal immigration laws--as wholesale rewriting the law.

December 4, 2018 in Cases and Case Materials, First Amendment, News, Opinion Analysis, Speech | Permalink | Comments (0)

Fifth Circuit Says No Standing to Challenge Mississippi Flag

The Fifth Circuit ruled that plaintiffs lacked standing to challenge a Mississippi town's decision to fly the state flag over city hall as a violation of the Fair Housing Act. The ruling ends the case.

The plaintiffs in Mississippi Rising Coalition v. City of Ocean Springs, Mississippi, challenged a city council resolution requiring the state flag to be flown over city hall and other municipal buildings. They claimed that flying the flag, which includes the Confederate battle flag, amounted to "racial steering" in violation of the FHA.

But the Fifth Circuit ruled that they lacked both Article III and statutory standing. As to Article III, the court simply pointed to a 2017 ruling, Moore v. Bryant, also denying standing to plaintiffs challenging the state flag, but under equal protection: "That Plaintiff alleges that he personally and deeply feels the impact of Mississippi's state flag, however sincere those allegations are, is irrelevant to . . . standing analysis unless Plaintiff alleges discriminatory treatment." The court said that "[i]f exposure to a flag does not injure a plaintiff for equal protection purposes, exposure to the same flag does not injure a plaintiff for FHA purposes either."

As to statutory standing under the FHA, the court said that flying the flag is not a "discriminatory housing practice," and that the plaintiffs therefore weren't "aggrieved persons" under the Act.

December 4, 2018 in Cases and Case Materials, Courts and Judging, News, Opinion Analysis, Standing | Permalink | Comments (0)

Ninth Circuit Revives Candidate's Party-Designation Challenge

The Ninth Circuit ruled in Soltysik v. Padilla that the lower court didn't sufficiently weigh the evidence in a candidate's challenge to California's rule that only candidates who "prefer" a recognized political party can list that party as their "preference" on the ballot.

The ruling means that the lower court will take a second crack at the case.

The case tests California's law that allows candidates who prefer a recognized political party to list that party on the ballot, but requires candidates who prefer a nonrecognized party to list their preference as "none." (California has voter-nominated (not party-nominated) primary process, and primary candidates list their "preference" for a party (and not their designation as the party's nominee).) Under the rule, Soltysik, a candidate for the state assembly who preferred a nonrecognized party (the Socialist Party USA), had to list "Party Preference: None" next to his name on the ballot. He argued that this violated free association, equal protection, and free speech.

The district court, applying the Burdick/Anderson sliding-scale test, deferred to the state and dismissed the case. The Ninth Circuit reversed and remanded.

The Ninth Circuit held that the burden on Soltysik's rights "is not severe," but that "it is more than 'slight,' warranting scrutiny that is neither strict nor wholly deferentially." The court then recognized that the state's interest in avoiding voter confusion is important; but it also said that the rule seems to have the opposite effect--to create confusion--and that the state may have other ways to achieve its interest.

In any event, the court held that the parties didn't get the chance to develop evidence to support their positions, because the lower court dismissed the case before discovery. So the court remanded for further proceedings.

Judge Rawlison dissented, arguing, among other things, that the court applied too high a level of scrutiny in evaluating the rule.

December 4, 2018 in Association, Cases and Case Materials, Elections and Voting, Equal Protection, First Amendment, News, Speech | Permalink | Comments (0)

Saturday, December 1, 2018

District Court Hands Sweeping Victory to Sanctuary Jurisdictions

Judge Edgardo Ramos (S.D.N.Y.) this week issued a sweeping ruling against the Trump Administration and its attempts to clamp down on sanctuary jurisdictions. The ruling is a significant victory for sanctuary jurisdictions, and a blow to the Trump Administration.

We last posted on sanctuary jurisdiction litigation here.

The case involves the states of New York, Connecticut, New Jersey, Rhode Island, and Washington; the commonwealths of Massachusetts and Virginia; and the city of New York. These jurisdictions sued the Administration to halt its unilateral anti-sanctuary conditions on their DOJ JAG/Byrne grants. In particular, they sought to stop the Administration from enforcing its three conditions on grant-receiving jurisdictions, on threat of losing their grants: (1) the "notice condition," which requires jurisdictions to give advance notice to DHS of the scheduled release date and time of aliens housed in state or local correctional facilities; (2) the "access condition," which requires jurisdictions to give federal agents access to aliens in state or local correctional facilities in order to question them about their immigration status; and (3) the "1373 compliance" condition, which requires jurisdictions to comply with 8 U.S.C. Sec. 1373, which, in turn, prohibits state or local governments from prohibiting their officials from communicating with the federal government about the immigration status of detainees.

Importantly, former AG Sessions imposed these conditions himself, without specific congressional authority (or any congressional action).

The court ruled that DOJ lacked statutory authority to impose the conditions, and thus acted ultra vires and in violation of the separation of powers in imposing them unilaterally (that is, without specific congressional authority). It also ruled that the conditions were arbitrary and capricious in violation of the Administrative Procedure Act.

As to Section 1373, the court said that it violated the anti-commandeering principle, based on Murphy v. NCAA. (The anti-commandeering principle says that the federal government can't compel a state to act in its sovereign capacity. Recall that the Court held in Murphy extended this principle to when the government compels a state not to act--as in Section 1373.)

The court granted the plaintiffs' request for mandamus relief and ordered the government to reissue their Byrne grant award documents without the conditions. It also enjoined the government from imposing the conditions against any of the plaintiffs in the future.

December 1, 2018 in Cases and Case Materials, Executive Authority, Federalism, News, Separation of Powers, Tenth Amendment | Permalink | Comments (0)