Friday, December 2, 2022
The Eleventh Circuit yesterday vacated a district court order appointing a special master to review the government's seized documents from Mar-A-Lago. The court also instructed the district court to dismiss the underlying case.
The ruling deals a serious blow to Trump's efforts to stall DOJ review of seized documents. But if history is any guide, we're sure to see some additional efforts to stall.
We last posted here.
The ruling isn't a surprise, given the court's earlier ruling that the district court lacked equitable jurisdiction to appoint the special master to review classified material. In that order, the court ruled that the government hadn't displayed "callous disregard" of Trump's constitutional rights--an essential factor in determining when a court has equitable jurisdiction.
The lack of callous disregard logically also applies to all the documents seized at Mar-A-Lago. (After all, the classified documents and unclassified documents were seized together.) And so the court ruled yesterday that the district court lacked equitable jurisdiction to appoint the special master to review all the documents for this same reason.
The Eighth Circuit ruled this week that a county jail's policy of holding otherwise releasable detainees based on their nation of birth violated equal protection.
The case, Parada v. Anoka County, tested the county jail's policy of holding every otherwise releasable detainee born outside the United States until jail authorities contacted ICE. The wait could last between 20 minutes and 6 hours.
The Eighth Circuit said the policy violated equal protection. That's because it discriminates based on nation of birth, far too rough a cut to satisfy the strict scrutiny standard that applies when government discriminates by national origin. The court noted that the county could have detained persons based on citizenship, instead, a classification that's both neutral with regard to national origin and a closer fit to the county's objectives.
While the court assumed for the purpose of analysis that the county's interest in its policy was "compelling," the court also expressed "doubts about it." It wrote, "Anoka County makes no suggestion it has an interest in stemming the tide of illegal immigration. It instead frames its interest as giving 'ICE an opportunity to investigate the legal status of individuals who [are] already in custody' without 'overburden[ing]' the agency by passing along too many false positives."
Thursday, December 1, 2022
The Supreme Court today agreed to hear a case challenging the Biden Administration's federal student loan forgiveness program. The case comes to the Court on the government's application to vacate the injunction halting the program entered by the Eighth Circuit. We last posted here.
The Court will hear oral argument on the program in February. In the meantime, the Eighth Circuit's injunction stays in place. The Court gave no clue as to its thinking on the merits in its brief order.
Judge Emmet G. Sullivan (D.D.C.) ruled this week that former President Donald Trump does not have absolute immunity from a civil-damage lawsuit for his behavior related to the insurrection on January 6. The ruling came in an order granting the plaintiffs' motion to file a second amended complaint in a lawsuit against Trump and others for interfering with the electoral count. In other words, it's not a final ruling on the merits; it just means that portions of the case against Trump can move forward.
The court held that Trump's activities leading up to and on January 6 in an effort to disrupt the electoral count were not within the "outer perimeter" of his official duties as president, and therefore, under Nixon v. Fitzgerald, he did not enjoy absolute immunity from civil-damage claims based upon those activities. The court held that Trump's activities were political, not official, because they "entirely concern his efforts to remain in office for a second term."
The this is now the third time that the D.C. district held that Trump's January 6-related activities were outside the scope of his official duties. See Thompson v. Trump (also denying absolute immunity) and United States v. Chrestman (rejecting a defense in a criminal case against a January 6 insurrectionist).
Monday, November 28, 2022
The Supreme Court will hear oral argument tomorrow in United States v. Texas, the case testing whether the Biden Administration's guidelines that prioritize immigration enforcement violate federal law. Here's my Preview, from the ABA Preview of United States Supreme Court Cases, with permission:
Case at a Glance
In September 2021, the Department of Homeland Security issued Guidelines that set priorities for the enforcement of federal immigration law. In particular, the Guidelines prioritized three classes of noncitizens for “apprehension and removal”: (1) noncitizens who pose “a danger to national security,” for example, suspected terrorists; (2) noncitizens who pose a “threat to public safety, typically because of serious criminal conduct”; and (3) noncitizens who pose a “threat to border security,” that is, noncitizens who arrived in the United States after November 1, 2020. DHS set these priorities because Congress has not allocated sufficient resources for the agency to apprehend and remove all removable noncitizens. Texas and Louisiana sued to halt the Guidelines. The district court ruled in their favor and vacated the Guidelines nationwide. The Fifth Circuit and the Supreme Court both declined to stay that ruling pending appeal.
Federal immigration law, by its plain terms, requires the Department of Homeland Security (DHS) to apprehend and remove removable noncitizens in certain circumstances. But given limited resources, DHS must exercise judgment in complying with those requirements. Moreover, the law generally grants executive officers some discretion in how they enforce the law. This case pits federal immigration law against those enforcement realities. But before we even get to the merits, this case raises significant questions over the states’ standing to sue, and whether the district court had authority to vacate the Guidelines nationwide.
- Do states have standing to challenge government Guidelines that set priorities for the enforcement of federal immigration law?
- Do the federal Guidelines violate the substantive provisions of immigration law?
- Did the district court have authority to vacate the Guidelines?
In September 2021, the Secretary of Homeland Security issued Guidelines for the Enforcement of Civil Immigration Law (Guidelines). The Guidelines set priorities for the “apprehension and removal” of noncitizens by Immigration and Customs Enforcement (ICE). The Secretary explained in an accompanying memo (the Considerations Memo) that the Guidelines were necessary because “there are more than 11 million undocumented or otherwise removable noncitizens in the United States,” yet DHS lacked “the resources to apprehend and seek the removal of every one of these noncitizens.” (We refer to the Guidelines and the Considerations Memo together as the “Guidelines” below.) In other words, Congress has allocated just a fraction of the resources that the Department of Homeland Security (DHS) would need to apprehend and remove every noncitizen who is deportable under the law, and the agency therefore needs to make choices in how it prioritizes enforcement. (The Guidelines apply only to “apprehension and removal.” They do not apply to “detention and release determinations” for noncitizens already in DHS custody.)
The Guidelines prioritize three classes of noncitizens for “apprehension and removal”: (1) noncitizens who pose “a danger to national security,” for example, suspected terrorists; (2) noncitizens who pose a “threat to public safety, typically because of serious criminal conduct”; and (3) noncitizens who pose a “threat to border security,” that is, noncitizens who arrived in the United States after November 1, 2020. In determining whether a noncitizen poses a threat to public safety, the Guidelines call for an assessment based on “the totality of the circumstances,” and not “bright lines or categories.” The Guidelines set “aggravating factors” that weigh in favor of enforcement, including “the gravity of the offense” and the “use of a firearm.” They also set “mitigating factors,” including “tender age” and military service.
The Guidelines, by their own terms, are discretionary. The Guidelines do “not compel an action to be taken or not taken in any particular case.” Instead, they leave “the exercise of prosecutorial discretion to the judgment of” ICE officers. And while they provide for supervisory review of a line-officer’s enforcement decision, the Guidelines do not “create any right or benefit, substantive or procedural, enforceable at law by any party in any administrative, civil, or criminal matter.” The Secretary’s Considerations Memo explained that the Guidelines are “consistent with” and “do not purport to override” two statutory provisions that require that certain noncitizens remain in detention during removal proceedings or while awaiting removal.
Texas and Louisiana sued to halt the Guidelines. (The states previously sued to halt earlier versions of the Guidelines. But that case was dismissed when the Secretary issued the final version of the Guidelines in September 2021.) The district court ruled for the states and vacated the Guidelines nationwide. The United States Court of Appeals for the Fifth Circuit denied a stay of the district court’s order pending appeal. The Court also denied a stay pending appeal, and agreed to hear the case.
This case raises three distinct issues. Let’s examine them one at a time.
Before we even get to the merits, the government argues that the states lack standing to sue, because the states have not suffered a sufficiently direct harm. The government says that the states have alleged only that the Guidelines will require them to spend more on law enforcement and social services. But the government claims that these kinds of indirect harms are never enough for states to sue the government. (If they were, states could sue the government over any number of federal policies and programs.) Moreover, the government asserts that the states lack standing, because, as a general matter, a third party that is not subject to prosecution itself lacks standing to sue the government over its prosecutorial decisions. Finally, the government contends that the Guidelines will not necessarily lead to increased costs for the states, because they only prioritize enforcement given limited resources (and do not cut overall enforcement under limited resources).
The states counter that they have standing, because the Guidelines caused them to “bear costs related to law enforcement, recidivism, healthcare, and education,” as the district court concluded. The states say that this position is not unbounded, as the government contends. Instead, they assert that their position requires states to demonstrate the same standing requirements as other litigants, “albeit with some amount of special solicitude under certain circumstances owing to their unique place in the federal system.” The states contend that the government’s position would upend the Court’s longstanding approach to state standing by making states “disfavored litigants.”
The Guidelines’ Legality
In testing the legality of the Guidelines, two provisions of federal immigration law are principally in play. The first, at 8 U.S.C. § 1226(c), says that DHS “shall take into custody” noncitizens convicted of certain offenses when they are released from criminal custody and “may release” them “only” in limited circumstances. According to DHS, this means that these noncitizens “generally must remain in custody during the pendency of their removal proceedings,” unless their release is authorized by law or court order. But at the same time, DHS and its predecessor agency have consistently interpreted Section 1226(c) to retain the agencies’ “general prosecutorial discretion” to “choose not to pursue removal of such an individual in the first place.”
The second provision, at 8 U.S.C. § 1231(a)(1), says that DHS “shall remove” a noncitizen within 90 days after a final order of removal or other triggering event. Moreover, DHS “shall detain” such noncitizens during the 90-day removal period. “Under no circumstance” shall DHS release a noncitizen who is removable on certain criminal and national-security grounds. According to DHS, such a noncitizen “must remain detained for the duration of the removal period unless release is required to comply with a court order.”
The government argues that the Guidelines do not violate these statutory provisions. As an initial matter, it says that Section 1226(e) bars judicial review of the Guidelines. (Section 1226(e) prohibits review of the Secretary’s “discretionary judgment regarding the application of” Section 1226 and prohibits courts from “set[ting] aside any action or decision . . . regarding the detention or release of any” noncitizen.) It also says that Section 1231(h) precludes courts from requiring the government to comply with Section 1231. (Section 1231(h) reads, “Nothing in [Section 1231] shall be construed to create any substantive or procedural right or benefit that is legally enforceable by any party against the United States . . . .”)
Going to the merits, the government argues that the mandatory language in Sections 1226 and 1231 (“shall take into custody” and “shall detain”) do not override the general principal of law-enforcement discretion. The government says that this conclusion is supported by the context and history of those provisions and by the “longstanding practice spanning multiple Administrations.” According to the government, this conclusion especially holds when, as here, the government faces “perennial constraints on detention capacity.” Moreover, the government asserts that its prioritization was reasonable, and that the government sufficiently explained its reasons (and, contrary to the district court’s findings, adequately considered countervailing factors, like the risk of recidivism by non-prioritized noncitizens and the states’ interests).
Finally, the government argues that the Guidelines do not violate the requirements for notice-and-comment rulemaking under the Administrative Procedure Act (APA). The government contends that the Guidelines meet the exceptions for “general statements of policy” and rules of agency “practice” or “procedure” under the APA, and therefore do not require notice-and-comment procedures.
The states counter that Sections 1226 and 1231 contain mandatory language that requires the government to detain nonimmigrants. They say that the Guidelines violate these plain requirements. Moreover, the states contend that the Guidelines are arbitrary and capricious in violation of the APA, because they fail “to consider important aspects of the problems that criminal aliens create, including recidivism and States’ reliance interests” on federal enforcement of immigration law. Finally, they assert that the government failed to comply with notice-and-comment procedures under the APA in issuing the Guidelines. They contend that these procedures are required, because the Guidelines “substantively changed a regulatory regime.”
The District Court’s Vacatur
The government argues first that the district court’s vacatur was improper under 5 U.S.C. § 706(2), a part of the APA that authorizes courts only to “hold unlawful and set aside” agency action. The government says that this provision “merely directs a court to disregard an unlawful agency action in resolving the case before it,” not to nullify or render it void. According to the government, this means that the district court only had authority to grant relief (like an injunction and declaratory relief) to the parties before it, and not to vacate the Guidelines nationwide.
The government argues that even if Section 706(2) authorized the district court’s nationwide vacatur, a provision in federal immigration law, 8 U.S.C. § 1252(f)(1), prohibits that relief in this context. Section 1252(f)(1) prevents courts (except the Supreme Court) from “enjoin[ing] or restrain[ing]” government immigration policies, except as they apply “to an individual alien against whom proceedings . . . have been initiated.” The government claims that the district court’s vacatur violates the plain terms of this provision, because it is not limited to the case of “an individual alien.”
The states counter that neither the APA nor Section 1252(f)(1) prevented the district court from vacating the Guidelines. As to the APA, the states say that the government’s position “that the APA does not authorize vacatur at all ignores text, context, and decades of practice and precedent.” Moreover, they say that Section 1252(f)(1)’s prohibition on court orders that “enjoin or restrain” government policies does not apply to vacatur. They contend that injunctive relief and vacatur “are different remedies with different consequences that require different showings.” For these reasons, the states say that the district court had full authority to vacate the Guidelines.
On its face, this case tests whether the mandatory immigration enforcement provisions in federal law are, in fact, mandatory. The plain language of the law, read quite narrowly, seems to require DHS to apprehend and detain noncitizens in certain circumstances. But the broader context and history of the law, along with DHS’s limited resources and the reality of executive discretion in enforcing the law, allow for significant leeway in how DHS implements those provisions. This case tests the former against the latter.
Telescoping out, the case also tests a decades-long history of executive exercise of discretion in the enforcement of immigration law, including the apprehension and detention of deportable noncitizens. Administrations under presidents of both parties have long issued guidelines and priorities for immigration enforcement similar to the Guidelines at issue here. For very practical and immediate reasons, the government has issued guidelines and priorities in order to channel limited resources, which have been perpetually insufficient to apprehend and detain all deportable noncitizens. For only slightly less direct reasons, the government has issued guidelines and priorities in order to ensure fairness in immigration enforcement and to reflect important national interests, sometimes related to foreign affairs and national security. Reading the precise provisions narrowly and literally, and ignoring the broader context and history, as the states would have it, could dispense with the long-running and bipartisan exercise of discretion in immigration enforcement.
Telescoping out once more, this case is just one front in the increasingly partisan battles over immigration. In particular, the case is one among the several efforts that border states and certain Republican state officials are lodging, or have lodged, against immigration policies and practices by Democrats. As an effort in the courts (and not just in ordinary politics), this case raises important questions about the authority and role of the courts in this increasingly partisan arena. For example: Should the courts hear the states’ challenge to federal enforcement priorities when the states’ only harms are secondary, and may not be remedied by judicial relief, anyway? Is it appropriate for a single district court, hand-selected by the plaintiffs, to vacate the Guidelines nationwide?
Notwithstanding the multi-layered underlying issues, however, the case gives the Court several easy exit ramps. For one, the Court could rule that the states lack standing. For another, the Court could rule that the district court lacked authority to vacate the Guidelines nationwide. For a third, the Court could rule that the immigration provisions cited by the states themselves bar courts from halting government policy. Look for those justices who would prefer to stay out of this hot-button political dispute to lean heavily into these issues at oral argument.
The Supreme Court heard oral argument today in Percoco v. United States, the case testing whether the honest services statute applies against a person who left government service, but then returned. Here's my Preview, from the ABA Preview of United States Supreme Court Cases, with permission:
Case at a Glance
Joseph Percoco served as the Governor’s Executive Deputy Secretary to then-New York Governor Andrew Cuomo. He resigned that office in April 2014 to manage the Governor’s reelection campaign. During this period, he arranged through a lobbyist to receive monetary payments from a corporation in exchange for pressuring state officials to provide funding for the corporation without complying with a potentially expensive labor peace agreement. Percoco succeeded in pressuring officials to drop the requirement right around the time that he returned to his prior position in the Governor’s Office.
The federal honest-services-fraud statute makes it a crime for a person to communicate over interstate channels any “scheme or artifice to deprive another of the intangible right of honest services,” that is, the citizenry’s “intangible” right to honest and impartial government free of corruption. The statute most obviously criminalizes the transmission of any scheme to defraud the government by a public employee. This case tests whether the statute also applies to persons like Percoco, who are not public employees, but who nevertheless exercise some level of government authority and influence and who later return to public office.
Does the federal honest-services-fraud statute apply to persons who are no longer government officials, but who retain some level of government authority and who later return to public office?
Starting in 2011, Joseph Percoco served as the Governor’s Executive Deputy Secretary to then-New York Governor Andrew Cuomo. In this role, Percoco was one of the most senior officials in the Governor’s Office (also called the “Executive Chamber”), with a portfolio that included a variety of significant public-policy issues.
In mid-April 2014, Percoco resigned his position in the Governor’s Office to manage Governor Cuomo’s reelection campaign. As a result, Percoco did not formally exercise official authority, but he nevertheless continued to use his public office “to conduct state business.” Others around him understood that during this time Percoco’s “grip on power never changed, diminished, or dissipated,” that he “instruct[ed]” the governor’s staff “on various non-campaign topics,” and that and that he “spoke for the governor” on legislative matters.
Around this time (there may be some dispute as to the exact timing), Percoco contacted Todd Howe, a lobbyist, to ask if Howe could help him find a client who could pay him while he was working on the campaign. Howe identified Steven Aiello, whose company, COR Development, sought to obtain funding from Empire State Development (ESD), a state agency, without entering into a potentially expensive labor peace agreement. In July 2014, Aiello e-mailed Howe asking whether “there [is] any way Joe P can help us” to avoid a labor peace agreement “while he is off the 2nd floor [the Governor’s Office] working on the Campaign.”
(This wasn’t the first time that Percoco worked through Howe to execute a bribery scheme. When he was still officially in the Governor’s Office, Percoco worked through Howe to secure a lucrative job for his wife in exchange for Percoco’s assistance in obtaining a power purchase agreement for Competitive Power Venture (CPV), an energy company associated with Howe.)
In early August, COR Development funneled $15,000 through an entity controlled by Howe to Percoco’s wife. Later, in October, after Aiello, Howe, and Percoco exchanged e-mails about the labor peace agreement, COR Development funneled an additional $20,000 through Howe to Percoco’s wife.
Around the same time, Percoco separately told Howe and a bank that he planned to return to Governor Cuomo’s administration after the election. On November 25, after Governor Cuomo won reelection, Percoco signed forms related to his reinstatement. On December 1, he executed those forms before a notary.
On December 3, Aiello’s partner, Joseph Gerardi, pressured Howe by e-mail to resolve the labor peace agreement issue. Howe forwarded the e-mail to Percoco, who then called the Deputy Director of State Operations, the official responsible for overseeing ESD, and told him that the project should move forward without a labor peace agreement. The Deputy Director understood Percoco’s instruction as “pressure” from his “principal,” a “senior staff member.” The Deputy Director then directed senor officials at ESD “that a labor peace agreement . . . should not be required as part of this project.” The next day, ESD officials informed COR Development of the decision.
On December 8, Percoco formally resumed his prior position in the Governor’s Office. He instructed officials to prioritize the release to funds owed to COR Development and secured an additional raise for Aiello’s son, who worked in the Executive Chamber.
In 2017, Percoco was charged in federal court with two counts of conspiring to commit honest-services wire fraud, two counts of soliciting bribes and gratuities, and three counts of Hobbs Act extortion. (Aiello, Gerardi, and others were charged with these and other crimes, too.)
After trial, the court instructed the jury that the government had to prove that Percoco owed a duty of honest services to the public in order to convict Percoco on the honest-services charges. The court told the jury that Percoco owed such a duty “[w]hile [he] was employed by the state . . . by virtue of his official position.” The court also explained that the jury could find that Percoco owed a duty of honest services to the public even “when he was not a state employee if you find that at the time he owed the public a fiduciary duty.” The court told the jury that they could find that Percoco owed a fiduciary duty if they determined (1) that he “dominated and controlled any governmental business” and (2) that “people working in the government actually relied on him because of a special relationship he had with the government.”
The jury found Percoco guilty of conspiring to commit honest-services wire fraud related to the COR Development scheme. (The jury also found him guilty on charges of honest-services fraud and solicitation of bribes or gratuities in the other bribery scheme, mentioned parenthetically above. The jury acquitted him on the other counts. Aiello was convicted of conspiring to commit honest-services wire fraud related to the COR Development scheme and acquitted on other counts.) The United States Court of Appeals for the Second Circuit affirmed. This appeal followed.
In order to see the parties’ arguments more clearly, let’s take a look at a little history. Before 1987, the federal wire- and mail-fraud statutes prohibited any scheme to defraud the government. The prohibition plainly applied to public officers who were formally employed by the government who corruptly defrauded the government of money or property. But at the time, all federal courts of appeals interpreted these statutes to prohibit honest-services fraud, too. In other words, the courts of appeals said that the statute also prohibited any scheme to defraud the government of the citizenry’s “intangible” right to honest and impartial government, regardless of whether the scheme directly involved government money or property.
As a result, in some cases the statutes applied to certain private citizens, too. In particular, they applied to those private citizens who were so closely aligned with the government that they could defraud the government of the citizenry’s intangible right to honest and impartial government. For example, as relevant here, the Second Circuit in United States v. Margiotta noted that “[i]t requires little imaginative leap to conclude that individuals who in reality or effect are the government owe a fiduciary duty to the citizenry,” just as much as public employees. The court looked to common law and New York law to determine whether the prohibition applied to a particular private person and ultimately concluded that “the concepts of reliance, and de facto control and dominance” are “at the heart of the fiduciary relationship.” United States v. Margiotta, 688 F.2d 108 (2d Cir. 1982).
Then, in 1987, the Supreme Court interpreted the mail-fraud statute “as limited in scope to the protection of property rights.” McNally v. United States, 483 U.S. 350 (1987). The Court in McNally reversed a Sixth Circuit ruling that, relying on Margiotta, held that “an individual without formal office” was a “public fiduciary,” because he “substantially participated in government affairs and exercised significant, if not exclusive, control” of certain government decisions. The ruling meant that the wire-fraud statute no longer applied to protect the “intangible” right to honest services.
Congress responded the next year by enacting Section 1346, the honest-services-fraud statute at issue in this case. Section 1346 defined the “scheme or artifice” in the wire-fraud statute to “include a scheme or artifice to deprive another of the intangible right of honest services.” 18 U.S.C. § 1346. In other words, Congress effectively overruled McNally.
But while Congress specifically included the “right of honest services” in Section 1346, it didn’t necessarily revive all pre-McNally caselaw in the circuits. In particular, Section 1346 didn’t obviously revive Margiotta and its holding that the fraud statutes applied to certain private persons. The Second Circuit ruled that it did, however, and upheld Prococo’s conviction on that basis.
Percoco argues first that Margiotta was wrong on its own terms. He says that “[u]nlike public officials, private citizens owe no fiduciary duty to act in the public interest,” because they “exercise no authority on [the government’s] behalf.” He contends that the whole idea of a republican government “is that private citizens and factions will advance their own parochial self-interests,” and that they cannot be bound by honest-services restrictions in the public sector. (Percoco claims that Margiotta’s reasoning doesn’t make sense in the private sector, either, where “[f]iduciary obligations arise from legal relationships (usually principal-agent), not from one party’s unilateral reliance on another,” as Margiotta would have it.)
Percoco argues next that Margiotta cannot survive the Court’s most recent rulings on government corruption statutes. He says that these most recent cases narrow the law and reinstate only the “core” of the pre-McNally caselaw to “paradigmatic cases of bribes and kickbacks” and “the sale of official authority.” He says that these simply don’t apply to private citizens.
Finally, Percoco argues that Margiotta raises “serious constitutional concerns.” He claims that the ruling threatens private persons’ First Amendment freedoms, potentially outlawing ordinary political advocacy and lobbying by private persons and even family members of government officials. Moreover, he says that the ruling “improperly puts federal courts in the position of regulating how private citizens interact with the government and its officials,” interfering with “this fundamental aspect of state sovereignty.” And finally, he contends that Margiotta’s approach is so vague that it “deprives citizens of the notice to which they are constitutionally entitled.”
For all of these reasons, Percoco argues that the honest-services-fraud statute cannot apply to him, because he was not a government official at the time of his actions.
The government counters that the honest-services-fraud statute can extend to certain private persons like Percoco. The government points to the plain language of the statute and its history (as described above) to say that the statute bans any “scheme or artifice to deprive another of the intangible right of honest services,” whether performed by a government officer or not. The government contends that the Court’s most recent cases support its position.
The government argues next that other federal statutes support its position, too. In particular, the government points to federal public bribery statutes that apply to private persons. The government says that Court interpretation of these statutes support its position that the honest-services-fraud statute applies to private persons, too. According to the government, that’s because “a person who is not a formal employee or agent of a government can still owe a duty of honest services . . . when the person has been selected to work for the government, or when the person actually exercises the powers of a government position with the acquiescence of the relevant government personnel.”
The government argues that Percoco easily fits within these principles. It says that at the time of the scheme, Percoco “was both (1) slated to return as the Executive Deputy Secretary, and (2) acting as a functional public official . . . .” The government contends that “[e]ither basis alone is sufficient to support his conviction.”
Finally, the government argues that the application of Section 1346 to persons like Percoco raises no constitutional issues. The government points out that Section 1346 contains a mens rea (or guilty mind) requirement, like the bribery statutes, and therefore provides fair notice. Moreover, it says that this application of Section 1346 raises no First Amendment concerns, “because lobbyists, family members, and the like are neither incoming nor functional government officials, as [Percoco] was.” Finally, the government contends that this application of Section 1346 does not interfere with state sovereignty, because “even assuming a violation of state law were required for [Percoco’s] conviction [under Section 1346], state bribery and ethics laws do not suggest that [Percoco’s] conduct was permissible.”
As the parties point out, the Court in the last twelve years or so has circumscribed the reach Section 1346 and a similar bribery statute. In particular, in Skilling v. United States, the Court limited Section 1346 to bribery and kick-back schemes. 561 U.S. 358 (2010). More recently, in McDonnell v. United States, the Court held that an “official action” under the federal bribery statute is an action that involves a specific exercise of formal government power. 579 U.S. 550 (2016).
But while those rulings circumscribe the statutes, neither ruling squarely addresses the issue in this case, whether the honest-services-fraud statute applies to private persons.
Given the number and types of private persons who effectively control government decision-making in one way or another, this issue matters. Percoco’s case is a perfect illustration why. On the one hand, if Section 1346 applies only to government officials—and does not apply to Percoco and those like him (with very close relationships to the government)—this could sharply limit the statute’s reach and allow more government corruption, as in Percoco’s case itself. At the extreme, this could invite individuals to skirt criminal liability simply by formally severing their relationship with the government, even as they maintain a very close practical relationship with the government and effective control over government decision-making. On the other hand, if Section 1346 applies to Percoco and those like him, this could prevent and punish more corruption, again, as in Percoco’s case itself.
The case is therefore likely to come down to line-drawing. A bright-line rule that applies Section 1346 only to government officials has the benefits of determinacy, certainty, and easy applicability in the courts, even if it also has a relatively limited reach. A more nuanced rule that applies Section 1346 to certain private persons who effectively wield government power is necessarily less determinate and certain, and harder to apply in the courts, even if it also comes with relatively broader reach.
Percoco picks up on this and claims that any attempt to apply Section 1346 to anyone other than a government employee risks criminalizing historically protected activity like ordinary political advocacy and lobbying. (Percoco’s case is easily distinguishable from ordinary political advocacy and lobbying. He’s hardly the best messenger for this slippery-slope argument, to say the least.) While the Second Circuit thinks it developed a sufficiently determinate test in Margiotta to prevent this problem, look for the Supreme Court to be skeptical. And look for it to lean toward a bright-line rule in which Section 1346 applies only to government employees.
Monday, November 21, 2022
Now that Trump has formally announced his candidacy in the 2024 presidential election, there's renewed buzz about the application of the Disqualification Clause. Here's a very brief explainer, along with some resources to help sort out what it is, and how it works.
First, the easy part: what it is. The Disqualification Clause disqualifies certain individuals from holding state and federal offices. The Clause, in Section 3 of the Fourteenth Amendment, was enacted shortly after the Civil War in order to bar confederate officers from holding public office. But its terms continue to apply today. It reads,
No Person shall be a Senator or Representative in Congress, or elector of President and Vice-President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may be a vote of two-thirds of each House, remove such disability.
Next, the harder part: how it works. The Clause itself raises several questions. For one, the Clause doesn't say how it's enforced, or who can enforce it. We do have some clues, though. We know that Congress can enact legislation "to enforce . . . the provisions" of the Fourteenth Amendment (under Section 5 of the Fourteenth Amendment). We know that "[e]ach House shall be the Judge of the Elections, Returns and Qualifications of its own Members . . . ." (Art. I, Sec. 5.) And we know that state officials and even private individuals in some cases have authority to challenge the qualifications of candidates for state and federal offices by filing quo warranto lawsuits.
For another, the Clause doesn't specifically say whether it applies to the president. But there are clues: the weight of historical scholarship says that it does.
For a third, the Clause doesn't define "insurrection or rebellion" or "aid or comfort to the enemies thereof," and it doesn't say how to determine whether a person "engaged" in the former or "g[a]v[e]" the latter. Again, we have clues. We know that Congress can call forth the militia "to suppress Insurrection." And we know that Congress enacted the Insurrection Act, which authorizes the President to call up the armed forces and militia in response to "unlawful obstructions, combinations, or assemblages, or rebellion against the authority of the United States [that] make it impracticable to enforce the laws of the United States by the ordinary course of judicial proceedings." Another part of the Insurrection Act authorizes the use of armed forces when insurrectionists "oppose or obstruct the execution of the laws of the United States or impede the course of justice under those laws." The Act holds accountable anyone who "incites, sets on foot, assists, or engages" in those acts.
As to "giv[ing] aid or comfort to the enemies," this may require some connection to a foreign and opposing government, not just a U.S. citizen opposing the U.S. government.
It seems clear that the January 6 insurrection was, indeed, an "insurrection or rebellion" under the Clause. And those who "incite[d], set on foot, assist[ed], or engage[d]" in that insurrection probably "engaged" in it for the purpose of the Clause.
But given the dearth of recent judicial precedent, we don't have a ton of contemporary judicial interpretation on enforcement. The Fourth Circuit earlier this year ruled that the 1872 Amnesty Act, which removed disqualification for confederate officers, did not remove disqualification for Madison Cawthorn in his bid for reelection to the House. The Eleventh Circuit ruled more recently that Marjorie Taylor Greene's case challenging a state process to determination disqualification was moot, because the process concluded in her favor. The best we have comes from a New Mexico state court that removed a county commissioner and prohibited him from seeking or holding any future office. That analysis is good, but it's just one court.
Rep. David Cicilline (D-RI) indicated last week that he's looking to introduce federal legislation that would ban Trump from the presidency. Other legislation is currently pending. In particular, H.R. 7906 authorizes the AG to investigate Section 3 disqualifications and pursue them in court.
CREW, which indicated earlier that it'd file to challenge Trump under the Disqualification Clause, issued letters to state AGs urging them to pursue quo warranto actions in their states. And FreeSpeechforPeople.org and Mi Familia Vota seek to garner public support for state AG actions to enforce the Disqualification Clause.
For more, here's a Congressional Research Service Legal Sidebar on the Clause.
Friday, November 18, 2022
AG Merrick Garland today appointed John L. Smith as special prosecutor in the investigations into efforts to interfere with the lawful transfer of power after the 2020 election and Trump's illegal retention of government documents at Mar-A-Lago. Smith is a former head of DOJ's Public Integrity Section and former chief prosecutor for the special court at the Hague.
The appointment means that the investigation and any criminal charges will now come from the special counsel, operating independently of ordinary DOJ channels. AG Garland likely made the appointment to avoid even the appearance of a conflict now that Trump declared his candidacy for the presidency in 2024. We don't know how quickly the special counsel will move, and we likely won't know that for some time. But the office isn't starting from scratch: it can pick up where DOJ left off its own investigations into these matters.
The appointment authorizes the special counsel to investigate these matters and to prosecute federal crimes that arose out of them. Neither investigation nor prosecution is limited to Trump (or anyone else). But the "authorization does not apply to prosecutions that are currently pending in the District of Columbia, as well as future investigations and prosecutions of individuals for offenses they committed while physically present on the Capitol grounds on January 6, 2021." As the appointment explains, those matters "remain under the authority of the United States Attorney for the District of Columbia."
In addition to investigation the insurrection and document retention, AG Garland's appointment letter and the regs authorize the special counsel to investigate "any matters that arose or might arise directly" from those investigations, including obstruction and perjury.
The special counsel will operate almost entirely outside the DOJ's chain of command. But that doesn't mean that AG Garland is necessarily bound to all the special counsel's decisions. 28 C.F.R Sec. 600.7(b) provides:
The Special Counsel shall not be subject to the day-to-day supervision of any official of the Department. However, the Attorney General may request that the Special Counsel provide an explanation for any investigative or procedural step, and may after review conclude that the action is so inappropriate or unwarranted under established Department practices that it should not be pursued. In conducting that review, the Attorney General will give great weight to the views of the Special Counsel. If the Attorney General concludes that a proposed action by a Special Counsel should not be pursued, the Attorney General shall notify Congress . . . .
Moreover, special counsel staff are "subject to disciplinary action for misconduct and breach of ethical duties," and the AG can remove the special counsel "for misconduct, dereliction of duty, incapacity, conflict of interest, or for other good cause, including violation of Departmental policies."
Wednesday, November 16, 2022
Former President Trump filed his brief in the Eleventh Circuit case testing whether a district judge had authority to appoint a special master to review documents seized at Mar-A-Lago. Trump's arguments are familiar, largely already rejected, and unpersuasive.
A short history might help contextualize this:
Two weeks after the FBI seized documents that Trump illegally removed from the White House, transported to his private residence, and illegally stored there, Trump sued, seeking (extraordinary) "judicial oversight" of the government's review of the documents. A district judge appointed a special master to conduct that review. The government filed a notice of appeal and moved the district court for a partial stay of its order as it applied to documents bearing classified markings. The district court rejected the motion, but the Eleventh Circuit reversed. The Eleventh Circuit held that the government was likely to prevail, because everyone agreed that the search did not display a callous disregard for Trump's constitutional rights--"the foremost consideration" in determining whether the district court properly exercised jurisdiction in appointing the special master in the first place. The Supreme Court declined to vacate that ruling.
The Eleventh Circuit ruling went to the government's motion for a partial stay as the district court's order applied to classified documents. But the court's reasoning--that last part, that everyone agreed that the search (of all the documents, not just the classified documents) didn't display a callous disregard for Trump's constitutional rights--gave the government an opening to argue that the district court's original appointment of a special master was completely invalid. The government then argued (1) that the court lacked authority to appoint the special master at all, and (2) that the court lacked authority to stop the government from reviewing the documents pending the outcome of the special master review.
Trump's brief responds to the government's arguments. On the merits of the district court's appointment of the special master, Trump argues that the government's lack of callous disregard of his rights is not determinative, and that other equitable factors weigh in favor of the court's authority. As to the district court's order halting government review pending special master review, Trump argues that he's likely to succeed on the merits, because some of the documents are his, some are protected by privilege, and he automatically declassified any documents marked "classified" simply by treating them as unclassified documents. (He says that as president he had authority to declassify, and therefore he could declassify simply by thinking it).
Trump's arguments mostly rehash his claims that the courts have already flatly rejected. (Maybe that's why the court set oral argument for next Tuesday: easy case, easy ruling.) The brief--and Trump's entire case, from his original complaint--is simply an effort to drag out and frustrate the FBI's investigation, and even run the clock.
Monday, November 14, 2022
The Eighth Circuit granted a motion to stop the Biden Administration from implementing its student-debt forgiveness program pending appeal. The court just a few weeks ago granted an emergency motion for an administrative stay, to the same effect.
The ruling halts implementation of the program nationwide during the state's appeal. It's another setback for the loan-forgiveness program in the courts.
The court said, contrary to the district court, that the Missouri Higher Education Loan Authority had standing as a state agency, or, if not, because of "MOHELA's financial obligations to the State treasury, the challenged student loan debt cancellation presents a threatened financial harm to the State of Missouri." Moreover, "the equities strongly favor an injunction considering the irreversible impact the Secretary's debt forgiveness action would have as compared to the lack of harm an injunction would presently impose."
The court said that it couldn't limit an injunction to the plaintiff states, however, because MOHELA services loans nationwide, and because "tailoring an injunction to address the alleged harms to the remaining States would entail delving into complex issues and contested facts that would make any limits uncertain in their application and effectiveness."
District Court Rules ACA Ban on Sex Discrimination Doesn't Include Sexual Orientation or Gender Identity
Judge Matthew J. Kacsmaryk (N.D. Tex.) ruled that the ban on sex discrimination in the Affordable Care Act doesn't include a ban on discrimination by sexual orientation or gender identity. The ruling concludes that HHS regulations that ban discrimination by sexual orientation and gender identity are unlawful.
The case, Neese v. Becerra, tests HHS regulations against the ACA. The ACA prohibits discrimination "on the ground prohibited under . . . Title IX . . . ." Title IX, in turn, prohibits discrimination "on the basis of sex." HHS interpreted this to include discrimination based on sexual orientation and gender identity, and issued regs prohibiting such discrimination under the ACA.
The court ruled the ACA's ban on discrimination wasn't that capacious. The court said that Title IX's plain language, along with its broader objectives, means that sexual orientation and gender identity are not part of "sex" discrimination under that statute. And therefore they're not a part of "sex" discrimination under the ACA, either.
The court distinguished Bostock v. Clayton County. The Supreme Court in that case held that Title VII's ban on discrimination "because of sex" included a bans on sexual orientation and gender identity discrimination. But the district court said that Bostock only applied to Title VII, not other anti-sex-discrimination statutes, and that differences between Title VII and Title IX meant that Title IX didn't include bans on sexual orientation and gender identity discrimination.
The Supreme Court today rejected an attempt by Kelli Ward, the chair of the Arizona Republican Party, to stop the January 6 Committee from obtaining her phone records around the time of the insurrection.
The ruling means that Ward's phone provider must turn the records over. (The subpoena seeks telephone numbers, not the content of the conversations.)
The Court didn't provide an explanation for denying Ward's application. Justice Thomas and Alito would have granted it, but they provided no explanation, either. (That's not unusual for this kind of request. The Court often issues a decision on an emergency application without an explanation.)
The Committee subpoenaed Ward's provider after Ward, who played an instrumental role in various efforts to reverse the election and prevent the peaceful transition of power, repeatedly invoked the Fifth Amendment when she testified to the Committee earlier this year. Ward then sued, seeking to quash the subpoena. The district court and the Ninth Circuit both rejected her motion; today the Supreme Court rejected it, too.
Ward argued that the subpoena violated her First Amendment associational rights under Americans for Prosperity Foundation v. Bonta. In that case, the Supreme Court struck a California requirement that charitable organizations that solicit contributions in the state must disclose to the state attorney general the identities of their major donors. The Court applied "exacting scrutiny," and ruled that the disclosure regime wasn't sufficiently tailored to meet the state's asserted interests. Ward claimed that "exacting scrutiny" should apply to the Committee's subpoena, too, as a form of compelled disclosure that interfered with her associational rights.
The Ninth Circuit flatly rejected that argument. The court said that Americans for Prosperity didn't even apply, because unlike the disclosure requirement in that case, the Committee's subpoena was targeted at a particular person, Ward, for particular and relevant information to the Committee's investigation, and because Ward made no allegation that disclosure would lead to any harassment (which would interfere with Ward's associational rights). The court noted that the subpoena sought "to uncover those with whom [Ward] communicated in connection with" the January 6 attack, not members of a political party. It also noted that Ward's theory would allow anyone to "raise a First Amendment objection to any subpoena for records of calls that included discussions of politics--or, presumably, of 'social, economic, religious, [or] cultural' matters. (Narcotics traffickers, or anyone else who might face such subpoenas, would be well advised to make at least a few calls to their preferred political party.)"
The court held that even if Americans for Prosperity's "exacting scrutiny" applied, the subpoena met it. That's because it's "narrowly tailored" to get only the information that the Committee needs, and because the Committee already tried to get this information from Ward when she testified, but she invoked the Fifth.
Judge Ikuta dissented from the Ninth Circuit ruling.
Over the past several years state legislatures confronting a severe housing shortage have increasingly preempted local land use regulations that restrict housing supply in an effort to facilitate more housing production. But even where state legislatures have been successful, they now confront another problem: many of the preempted land use regulations are duplicated at the neighborhood or block level through private “covenants, conditions and restrictions” (CCRs) enforced by homeowners associations. In response, California’s legislature has begun aggressively invalidating or “overriding” these CCRs. While many states have barred HOAs from prohibiting pets, clotheslines, signs and flags, California has moved much farther, prohibiting HOAs from unreasonably limiting accessory dwelling units and overriding any private CCR that would inhibit the construction of 100% affordable housing of any density.
These overrides present serious legal questions because CCRs are property and contract rights that may be protected by the Constitution’s Takings and Contract clauses. Overrides have not resulted in much published litigation in the past, but California’s new wave of aggressive CCR overrides may change that. While the Contract Clause argument is exceptionally weak, homeowners who are disabled from enforcing a servitude benefitting their property due to a legislative override have a viable argument that the override interferes with their reasonable expectations regarding the use of their property, and therefore constitutes an unconstitutional taking. On balance, however, I argue that most CCR overrides will survive a takings challenge because the enforceability of CCRs has long been subject to alteration or even termination by courts or legislatures on public policy grounds, so a homeowner would reasonably expect a CCR to be unenforceable if it conflicts with public policy as determined by the legislature. Nevertheless, the current Supreme Court has been very aggressive in recent takings cases so legislatures will have to be careful in crafting overrides to ensure they satisfy the Court’s increasingly stringent takings standards.
Michael L. Smith (Idaho), Originalism, Common Good Constitutionalism, and Transparency, Harvard J. L. and Public Policy (forthcoming):
A theory of interpretation that is more transparent tends to be preferable to less transparent alternatives. Increased transparency tends to promote the values of constraint, democratic legitimacy, and an understanding of what the law is. Under a transparency rubric, originalism, as a standard of interpretation, performs better than common good constitutionalism. Originalism provides a better defined (though still imperfect) basis for determining the correctness of claims about the Constitution means. Common good constitutionalism’s reliance on morally and politically loaded terminology makes it elusive as a standard of interpretation that tends to match the desires of the interpreter. At the implementation stage, however, those who implement common good constitutionalism do so in a transparent manner—reading the Constitution in line with their readily expressed moral and political inclinations. Originalism, on the other hand, is vulnerable to disingenuous interpreters who use originalism as a smokescreen to achieve political ends in the guise of neutrality. This casts doubts on originalist attempts to use common good constitutionalism as an opportunity to sell their theory to nonoriginalists.
Friday, November 11, 2022
Trump objects to the subpoena on several grounds:
[T]he Committee did not issue the Subpoena to further a valid legislative purpose; the Subpoena is unwarranted because other sources can provide the information the Subpoena seeks; the Subpoena is broader than reasonably necessary; the Subpoena infringes on executive privilege; the Subpoena infringes President Trump's First Amendment rights; the Committee is not duly authorized; and the Committee lacks authority to issue subpoenas.
Just to be clear: These grounds are entirely spurious. Some are flat wrong, factually or legally or both. Others have been roundly rejected in the courts. Again and again. Still, Trump raises them.
For example, Trump argues that a former president is absolutely immune from compelled testimony. But his best source for this is a letter that President Truman wrote in response to a subpoena by the House Un-American Activities Committee. Every other authority he cites speaks to current, not former, presidents. The difference matters: the reason for the president's absolute immunity (if such immunity exists) is that Congress, by compelling testimony, could frustrate the current president's exercise of their Article II responsibilities (by taking the president away from their job), and thus undermine the separation of powers. This reason applies with far less force, if at all, to a former president. The reason's simple: a former president is no longer exercising Article II responsibilities. In any event, neither OLC nor the Supreme Court has definitively extended absolute immunity from compelled congressional testimony to a former president. And Congress obviously thinks it has the power. That counts for something.
Trump also argues that the subpoena doesn't serve a legitimate legislative purpose. This is a familiar trope in Trump team litigation. And it's failed consistently in the courts, including in court challenges to the January 6 Committee's authority.
The strategy--the same as always--is clear: Trump's trying to run the clock in hopes that the subpoena (and the entire Committee) go away with a new Republican Congress. Or, if not, stall in the courts as long as possible.
Justice Sotomayor, as Second Circuit justice, denied an emergency application to halt New York City's vaccine mandate for public employees, pending appeal.
The denial came without explanation. That's not unusual for this kind of thing.
A group called New Yorkers for Religious Liberty filed the application. It argued that the City's enforcement of the vaccine mandate violate the Free Exercise Clause. In particular, the group maintained that the City had too much discretion in granting religious exemptions, that the City "play[ed] denominational favorites" and made other arbitrary decisions regarding exemptions, and that "[t]he City uses its executive discretion to prefer secular conduct that undermines the government's asserted interest in similar ways as non-exempted religious conduct."
The arguments looked to exploit holes in the Smith test, which applies rational basis review to government actions that are neutral with regard to religion and generally applicable. The Court in Masterpiece Cakeshop v. Colorado Civil Rights Commission held that statements by commissioners reflected anti-religious animus, and therefore the Commission failed to apply Colorado's anti-discrimination law in a way that was neutral with regard to religion. More recently, in Fulton v. City of Philadelphia, the Court ruled that the City's discretion in enforcing anti-discrimination law made it not generally applicable. The two rulings significantly chipped away at Smith, even if the Court (so far) has declined to outright overrule Smith.
The group's arguments in its emergency application are in the same spirit--that the City enforces the otherwise neutral and generally applicable vaccine mandate in a way that discriminates against certain religious beliefs, or leaves too much discretion in the hands of City officials who can grant exemptions.
Justice Sotomayor's denial follows two Court rulings earlier this year, one rejecting a Biden Administration effort to impose a vaccine mandate on employees of large employers and another one upholding a Biden Administration move to require facilities that receive Medicare or Medicaid funding to ensure that their employees are vaccinated. Those rulings turned on the Administration's authority to adopt those rules, however, and not the Free Exercise Clause.
Judge Mark T. Pittman (N.D. Tex.) ruled that the Biden Administration's student-loan forgiveness program is unconstitutional. The Administration already said that it'd appeal.
Judge Pittman's ruling is different than these, in that it isn't temporary. Instead, it "vacates" the program in its entirety.
The court ruled that the program violated the newly discovered major questions doctrine. The court said that the program involved a matter of "vast 'economic and political significance'" (because it'll "cost more than $400 billion"), yet Congress hadn't clearly authorized it in the HEROES Act. Under West Virginia v. EPA's major questions doctrine, the court said that the program is therefore unconstitutional.
That's striking, given that the HEROES Act plainly authorizes the Secretary of Education to "waive or modify" federal student loans "as the Secretary deems necessary in connection with a war or other military operation or national emergency." ("The term 'national emergency' means a national emergency declared by the President of the United States.") It's striking, too, because, unlike the West Virginia case, the Administration's action here doesn't impose a regulatory scheme. If the major questions doctrine reaches this program, it'll likely reach a whole lot of other programs that we might not necessarily have expected under West Virginia, too--programs where the president has statutory authority to declare an "emergency," or where an administration takes non-regulatory action. (And remember: the Court hasn't defined "economic and political significance." So we don't know how or whether that limiting principle would apply.)
The ruling is striking at an even more basic level, on standing. Under the standing rule, a plaintiff, in order to get into federal court, has to plausibly plead (1) that they've suffered a harm, (2) that the defendant's action caused the harm, and (3) that the plaintiff's requested relief will redress the harm. Here, the plaintiffs in the case didn't qualify for the full forgiveness. That was their "harm" for standing purposes. And they connected that harm to the forgiveness program, demonstrating causation.
Yet they asked the court to vacate the entire program (as opposed to remand to the Department to fix it so that they'd qualify). The court obliged, and, as a result, they (still) don't get forgiveness (and neither does anyone else). This seems counterproductive, at best, as a practical matter. But it also seems to play fast and loose with the third standing requirement, that the requested relief must redress the harm.
Thursday, November 10, 2022
The Second Circuit ruled that a district court improperly granted summary judgment to the Rockland County Department of Health (NY) and its officials in a claim by parents of minor children that the Department's order excluding unvaccinated children from school violated their right to free exercise of religion.
The ruling means that the district court must hold a trial to resolve disputed facts surrounding the claim before ruling on the free exercise issue.
The case, M.A. v. Rockland County Department of Health, arose when the Department excluded children who were not vaccinated against measles from attending school. The Department issued the order in response to a measles outbreak.
Parents sued, arguing that the order violated free exercise, among other things. The district court ruled that the order was neutral with regard to religion and generally applicable. It applied Smith's rational basis review and granted summary judgment to the district.
The Second Circuit reversed. The court said there were facts in dispute as to the order's neutrality and general applicability that made the case inappropriate for summary judgment.
While a reasonable juror could conclude that [a Department official's] statements [about individuals who oppose vaccines] evinced religious animus, rendering the Declaration not neutral, a reasonable juror could also conclude the opposite. Similarly, there are disputes of fact regarding whether the Declaration, in practice, primarily affected children of religious objectors or whether there was a sizable population of children who were unvaccinated for a variety of non-medical and non-religious reasons. There are also disputes as to whether the County's purpose in issuing the Declaration was to stop the spread of measles or to encourage vaccination. Given these fact-intensive issues, the district court's grant of summary judgment on the Plaintiffs' Free Exercise Claim was erroneous.
The case now goes back to the district court for a trial on these questions.
The Sixth Circuit ruled this week that the First Amendment doesn't protect a right to record police misconduct investigations.
The case, Hils v. Davis, arose when the president of the police union sought to record Citizen Complaint Authority interviews of an officer in a police-misconduct investigation. The union president alleged that the Authority wasn't recording the entire interviews, so he sought to fill the gaps. The Authority prevented him from recording, and he sued.
The court examined the "many potential ways to think about this claim," including text and history of the First Amendment, precedent involving press access to public proceedings, government-employee speech, and forum analysis. It rejected the claims under them all. The fundamental problem according to the court: Authority interviews are part of non-public government investigations. The court said that the Authority has a legitimate interest in keeping the interviews under wraps while the investigation is pending, and that interviewees have other ways of voicing their concerns that the Authority is selectively recording the interviews: Say so.
The Fifth Circuit rejected claims by a tanning business that COVID shutdowns violated its equal protection rights and amounted to an uncompensated taking.
The case, Golden Glow Tanning Salon v. City of Columbus, Mississippi, arose when Columbus ordered a seven-week shutdown of certain businesses in the early days of the COVID pandemic. Golden Glow sued, arguing that the shutdown violated equal protection and constituted an uncompensated taking.
The Fifth Circuit rejected both claims. The court applied rational basis review to Golden Glow's equal protection claim, and concluded that Columbus's action was reasonable, even if a little both over- and underinclusive. As to takings, the court rejected Golden Glow's claim that the shutdown effected a per se taking, because Golden Glow failed to demonstrate that the shutdown "rendered the entire property 'valueless.'"
Judge Ho concurred, and pitched a case for the right to earn a living as a fundamental right. Judge Ho argued that the right "to pursue callings" has even better historical foundations than other unenumerated fundamental rights.