Thursday, March 14, 2024

D.C. Circuit Rejects Navarro Motion for Release Pending Appeal

The D.C. Circuit today rejected Peter Navarro's motion for release from prison pending his appeal.

Navarro, White House trade advisor to former President Trump, was convicted of contempt of Congress for defying a subpoena from the House committee investigating the January 6 insurrection. He was sentenced to four months imprisonment. The district court rejected Navarro's claim that he acted under executive privilege. But he appealed, and moved the D.C. Circuit to release him from his prison sentence pending his appeal.

The D.C. Circuit flatly rejected Navarro's motion. Among other things, the court said that Navarro's motion doesn't present a "substantial question of fact regarding the district court's finding that executive privilege was not invoked in this matter by former President Trump or the sitting President, and he therefore forfeited any such argument." Moreover, the court wrote that in any event there's no "close question," because the President didn't actually invoke the privilege. Next, the court asserted that even if executive privilege were invoked, Navarro "forfeited any challenge to the district court's alternative conclusion that dismissal of the indictment still would not be required because executive privilege is a qualified privilege that would be overcome by the imperative need for evidence." And the court noted that even if executive privilege applied, "it would not excuse his complete noncompliance with the subpoena." That's because "[a] properly asserted claim of executive privilege would not have relieved him of the obligation to produce unprivileged documents and appear for his deposition to testify on unprivileged matters."

Assuming any appeal to the Supreme Court doesn't happen or is similarly flatly rejected, Navarro will have to report to federal prison by Tuesday.

March 14, 2024 in Cases and Case Materials, Executive Privilege, News, Separation of Powers | Permalink | Comments (0)

American Library Association Reports Record Number of Book Challenges in 2023

The ALA reports that 4,240 book titles were targeted for censorship in 2023, a 65 percent increase over 2022. The ALA reports four key trends:

  • Pressure groups in 2023 focused on public libraries in addition to targeting school libraries. The number of titles targeted for censorship at public libraries increased by 92 percent over the previous year; school libraries saw an 11 percent increase.
  • Groups and individuals demanding the censorship of multiple titles, often dozens or hundreds at a time, drove this surge.
  • Titles representing the voices and lived experiences of LGBTQIA+ and BIPOC individuals made up 47 percent of those targeted in censorship attempts.
  • There were attempts to censor more than 100 titles in each of these 17 states: Colorado, Connecticut, Florida, Idaho, Illinois, Iowa, Kentucky, Maryland, Missouri, North Carolina, Ohio, Pennsylvania, Tennessee, Texas, Utah, Virginia, and Wisconsin.

In response, ALA launched Unite Against Book Bans "to empower readers everywhere to stand together in the fight against censorship."

March 14, 2024 in Books, First Amendment, News, Speech | Permalink | Comments (0)

Wednesday, March 13, 2024

No Takings Claim for Utilities Displaced by Government Streetcar Project

The Ninth Circuit ruled that two investor-owned utilities had no takings claim when a local transit authority asked them to move their equipment to make way for a streetcar line. The ruling means that the utilities will have to pay the costs of the relocations, unless the government (in its graces) voluntarily pays.

The case, Southern California Edison v. Orange County Transportation Authority, arose when OCTA asked Southern California Edison and Southern California Gas Company, two investor-owned utilities, to move pipes, transmission lines, and other equipment so that OCTA could construct a streetcar line. The utilities estimated that the relocations would cost about $15 million (total, for both utilities together). They sued, arguing that OCTA's ask constituted a taking of private property requiring just compensation.

The Ninth Circuit rejected the claim. The court said that under California law the utilities had no property interest. That's because under California Supreme Court precedent, "it has generally been held that a public utility accepts franchise rights in public streets subject to an implied obligation to relocate its facilities therein at its own expense when necessary to make way for a proper governmental use of the street." The court rejected the utilities' claim that the streetcar project was proprietary, not "governmental":

OCTA easily satisfies [the governmental-project] standard. In building the streetcar line--that is, in making use of the public streets of Orange County, OCTA exercised its state-delegated authority to meet the "demand for an efficient public transportation system in the southern California region," "reduce the levels of automobile-related air pollution," and "offer adequate public transportation to all citizens, including those immobilized by poverty, age, physical handicaps, or other reasons." In other words, OCTA invoked the public right to use the streets for public benefit.

The court also rejected the utilities' claim that rail lines are per se proprietary activities, holding that case law didn't support that conclusion.

March 13, 2024 in Cases and Case Materials, News, Opinion Analysis, Takings Clause | Permalink | Comments (0)

Judge Quashes Six Counts in Trump's Georgia Election Interference Case

Judge Scott McAffee today quashed six of the 41 counts against Trump and his cooperators in the Georgia election-interference case. Judge McAffee's order preserved the remaining counts, and invited the government to refile the six quashed counts or to seek immediate review of the order.

In short, the order requires the government to charge with greater specificity, but otherwise doesn't change much in the case.

The court quashed the counts alleging that defendants solicited various officials to violate their oaths of office "by requesting or importuning [the officials] to unlawfully appoint presidential electors," among other, related crimes. The oaths, in turn, include "a provision that the oath-taker will support the Constitution of the United States and the Constitution of Georgia."

Here's the problem: "When charging compound crimes, such as felony murder, precedent is clear that the allegations must either include every essential element of the predicate offense or charge the predicate offense in a separate count." But here the charges didn't specify how the defendants violated their oaths (the underlying, or predicate, offense), because they didn't specify which portions of the constitutions the officials violated. Here's how the court put it:

this Court finds that the incorporation of the United States and Georgia Constitutions is so generic as to compel this Court to grant the special demurrers. . . .

The Court's concern is less that the State has failed to allege sufficient conduct of the Defendants--in fact it has alleged an abundance. However, the lack of detail concerning an essential legal element is, in the [court's] opinion, fatal. As written, these six counts contain all the essential elements of the crimes but fail to allege sufficient detail regarding the nature of their commission, i.e., the underlying felony solicited. They do not give the Defendants enough information to prepare their defenses intelligently, as the Defendants could have violated the Constitutions and thus the statute in dozens, if not hundreds, of distinct way.

The court went on to note, however, that the government can "seek a reindictment supplementing these six counts" within six months of the order (irrespective of any statute of limitations). The court said that the state could alternative "request a certificate of immediate review . . . which the Court would likely grant due to the lack of precedential authority."

March 13, 2024 in Cases and Case Materials, News | Permalink | Comments (0)

Tuesday, March 12, 2024

Justice Alito Extends Stay in Texas SB4 Case Until Monday

Justice Alito issued a pair of orders today extending an earlier stay of a Fifth Circuit ruling in the Texas SB4 case until Monday. The orders give the high Court a few more days to consider the government's application to vacate the Fifth Circuit's move, which allowed SB4 to go into effect. The upshot is that SB4 is not now in effect, and the Court will likely rule on Monday whether it can go into effect pending appeal.

SB4 would impose state criminal penalties on noncitizens who unlawfully enter or reenter Texas from Mexico. It would also require Texas courts to remove those noncitizens to Mexico without Mexico's consent and without regard to federal law.

It's plainly unconstitutional under Arizona v. United States. But Texas surely knows that, and is angling for a change in the law.

The district court issued a preliminary injunction preventing enforcement of SB4. Texas appealed and moved for a stay pending appeal and an immediate administrative stay. The Fifth Circuit granted an "administrative stay" (which would allow SB4 to go into) but stayed the effect of that stay for seven days (which meant that SB4 didn't go into effect for seven days). With that seven-day clock ticking, Justice Alito, as circuit justice, issued an administrative stay (which meant that SB4 didn't go into effect) until March 13, and today extended it until next Monday, March 18.

The case is really two cases at the Court; here's the docket for one, here's for the other.

March 12, 2024 in Cases and Case Materials, Federalism, News | Permalink | Comments (0)

Check it Out: Sepper and Wiley on Religious Liberty Challenges to Social Insurance

Elizabeth Sepper and Lindsay Wiley recently posted The Religious Liberty Challenges to American-Style Social Insurance. Here's the abstract:

This Article argues that escalating religious challenges to the Affordable Care Act (ACA) form a major new vector in the campaign against social insurance in the United States. Where early constitutional challenges urging a libertarian ethos of “you’re on your own” largely failed, religious claimants are succeeding with a traditionalist entitlement to “take care of your own as you see fit.” In a mounting series of lawsuits, objectors challenge requirements that employers and insurers provide comprehensive, nondiscriminatory coverage of sexual and reproductive health services. They demand freedom to define their own communities and choose which medical needs they will support. They revive the notion of personal responsibility largely repudiated by health reform and add a moralized twist. The result is discrimination against marginalized groups, coercion of workers, and loss of democratically determined rights.

Bridging political economy and religion law scholarship, this Article attributes religious claimants’ successes to the ACA’s distinctively American accommodationist and market-first structure. Concessions that facilitated the Act’s passage in Congress now grant a foothold for religious objectors eager to rewrite the insurance social contract in the courts. Religious exemptions re-fragment the social collective—by family, firm, medical need, and religious belief. We are no longer “all in it together,” as the ACA would have it; we are separate and apart.

March 12, 2024 in News, Scholarship | Permalink | Comments (0)

Check it Out: Shugerman on "Heads-I-Win, Tails-You-Lose" Originalism and "Vibe" Originalism

Jud Shugerman just posted "Heads-I-Win, Tails-You-Lose" Originalism and "Vibe" Originalism. Here's the abstract:

SEC v. Jarkesy represents a turning point – and arguably a legitimacy crisis -- for both the unitary executive theory of removal and originalism-in-practice. Over the last five years, a wave of scholarship by legal scholars and historians has disputed, and sometimes refuted, the historical claims by unitary theorists that Article II implies a presidential power to remove executive officers. In response to those arguments, I observe, first, that the legal academy’s prominent unitary executive theorists have fractured into contradictory positions, even internally contradictory positions. (There is a deep irony of “unitary” theory fracturing into multiple and contradictory theories).

Second, as the unitary theory has shifted and retreated from earlier historical claims, the different theorists have engaged in a shell game, which I will identify here as “Heads-I-Win, Tails-You-Lose” originalism. For example, unitary theorists rely on English practice as a model for Article II when it supports their theory, but when critics provide contrary evidence from English practice, unitary theorists – without blinking -- say English practice is irrelevant because the English did not have an American-style separation of powers. Somehow, the practice of the British Crown counts as “executive power” but the practice of English Parliament does not count as “legislative power.” Originalists often cite colonial British practice as an anti-model for the Framing (see the use of the Declaration of Independence and the historical context for the Bill of Rights), but suddenly and conveniently, unitary theorists now cite colonial British administration as evidence for “executive power” and Article II. Post-Ratification evidence sometimes counts, and sometimes it doesn’t, depending upon which side it benefits. The Federalist Papers count, except when they don’t. Marbury counts, except when it doesn’t. Unitary theorists dismiss the problem that the text of the Constitution is silent on removal, but somehow, silence in congressional debates count as evidence of original public meaning. But somehow mid- to late-nineteenth century cases and practices count as original public meaning. This is a methodological legitimacy crisis.

Third, echoing some other commentators (see Christine Kexel Chabot), I suggest that these theorists and the Roberts Court are engaged in “Vibe Originalism”: Justices and scholars making a presentist and ideological assumption about a constitutional text, a “vibe” framed as common sense, without support from historical evidence. (E.g., the Take Care clause surely creates an indefeasible presidential power). In separation of powers cases, this “vibe” shifts the burden of proof: Instead of bearing a burden of proof to strike down a congressional statute, the “vibe” creates an assumption of judicial activism, and those who argue for judicial restraint and Congress’s power under Article I suddenly bear the burden of proof to overcome the vibe’ After historians have disputed or disproven those assumptions, the theorists and Justices return to the vibe.


March 12, 2024 in News, Scholarship | Permalink | Comments (0)

Check it Out: Pfander on Judicial Review of Unconventional Enforcement Regimes

James E. Pfander recently posted Judicial Review of Unconventional Enforcement Regimes. (Check this out along with Wasserman and Rhodes's piece.) Here's the abstract:

The Supreme Court’s decision in Whole Woman’s Health v. Jackson seriously complicates judicial review of unconventional private enforcement schemes. Announced in December 2021, before the leak and eventual publication of the Dobbs decision, WWH studiously declined to block the effectiveness of the Texas Heartbeat Act, S.B. 8, citing a reluctance to allow injunctive relief against state courts and judges. As a result, parties threatened with bounty-based private enforcement akin to that in S.B. 8 will struggle to secure an effective federal test of the constitutionality of state restrictions. The WWH framework encourages more states, both red and blue, to use unconventional private enforcement regimes to limit pre-enforcement review.

Legal scholarship on unconventional regimes like S.B. 8 has yet to consider the writ of prohibition as a vehicle for judicial review. This Essay puts the WWH decision into conversation with the forms of inferior-court supervision available through the common law writ of prohibition. Prohibition empowers superior courts to block lower courts from exercising authority over matters outside their jurisdiction. Among its other features, prohibition operates directly on lower courts and their judges, threatening them with the injunctive relief that WWH deemed improper in an Ex parte Young action. Prohibition thus offers one answer to the judicial-power concerns that derailed the WWH litigation and a foundation for a broader vision of federal judicial oversight of unconventional enforcement schemes.

March 12, 2024 in News, Scholarship | Permalink | Comments (0)

Check it Out: Wasserman and Rhoses on Private Enforcement and Blue-State Revenge

Howard Wasserman and Rocky Rhodes just posted 303 Creative, Exclusive Private Enforcement, and Blue-State Revenge. Here's the abstract:

Red states have made exclusive private enforcement schemes targeting locally unpopular but constitutionally protected conduct a cornerstone of culture-war legal strategy. Laws such the Texas Heartbeat Act (“S.B. 8”) in 2021 and anti-“WOKE” laws forego public enforcement in favor of private enforcement; this precludes federal rights-holders from vindicating their rights through pre-enforcement offensive litigation in federal court against the government or government officials responsible for enforcing the law. This threatens rights-holders with defending a state-court wave of costly and burdensome litigation to adjudicate the law’s constitutional validity.

Blue states and liberal scholars and advocates have sought a progressive counterpart targeting a favored conservative right. This article finds that counterpart in 303 Creative v. Elenis (2023), in which the Supreme Court recognized a (not clearly defined) First Amendment right for expressive businesses to decline to provide expressive goods and services related to same-sex marriage and not to be compelled to express messages violating their religious, political, or ideological beliefs. The decision angered liberals, who criticized the “fake case” and “legal performance art” that produced the decision, and delighted conservatives, who had long sought recognition of such a First Amendment right. We hypothesize a Blue state enacting the Discrimination Is Not Expression Act, a public-accommodations law prohibiting such First Amendment opt-outs and compelling all businesses to provide all services, including expressive ones. By removing any public enforcement mechanism and relying on exclusive private enforcement, this law places business owners seeking to exercise a conservative-favored federal right in the same bind that S.B. 8 placed abortion providers and patients seeking to exercise a liberal-favored right.

This paper, the fifth in a series on the procedure of exclusive private enforcement, details this privately enforced public-accommodations law as a response to 303 Creative. It explores how the law offers Blue states “revenge” for S.B. 8 and other anti-abortion laws by burdening a conservative-favored right; how it might fare in constitutional litigation of any posture; how it exposes procedural inconsistency in the face of substantive preferences; and why the prospect of this law might cause both sides of the spectrum to abandon private-enforcement schemes and the burdens they impose.

March 12, 2024 in News, Scholarship | Permalink | Comments (0)

Seventh Circuit Says Parent Group Lacks Standing to Challenge School Guidelines for LGBTQ Students

The Seventh Circuit ruled last week that a parent organization lacked standing to challenge a school district's "guidelines" for schools to follow "to address the needs of transgender, nonbinary, and/or gender non-conforming students." The court said that the plaintiff organization simply hadn't alleged that its members were harmed.

The case, Parents Protecting Our Children, UA v. Eau Claire Area School District, arose when Parents Protecting lodged a facial challenge to the District's brand-new policy to "foster inclusive and welcoming environments that are free from discrimination, harassment, and bullying regardless of sex, sexual orientation, gender identity or gender expression." The District issued "Administrative Guidance" for schools to follow and a "Gender Support Plan," both of which recognize that there are circumstances where "parents are not involved." Still, by its terms, the Plan is a student record, and a parent can gain access upon request.

Parents Protecting argued that the Guidance and Plan violated its members' rights to due process and free exercise. But their pre-enforcement, facial challenge failed to identify a particular harm to members.

As a result, the Seventh Circuit said that the group lacked standing, and dismissed the case.

The ruling contrasts with a ruling just today from the Fifth Circuit, where the court held that a parent had standing to challenge federal law that prohibited federal contraception grant recipients from informing parents of a minor that the minor sought contraception. The parent in that case also didn't allege that the policy resulted in actual services in violation of their rights, yet the Fifth Circuit nevertheless said that the parent had standing.

March 12, 2024 in Cases and Case Materials, Jurisdiction of Federal Courts, News, Opinion Analysis | Permalink | Comments (0)

Federal Judicial Conference Moves to Curb Judge Shopping

The Federal Judicial Conference announced today that it's "strengthen[ing] the policy governing random case assignment, limiting the ability to litigants to effectively choose judges in certain cases by where they file a lawsuit."

The move is designed to curb federal judge shopping. That's when litigants strategically file suit in a one-judge courthouse based on their (usually correct) predictions about how the judge will rule on hot-button issues and whether the judge will issue a nationwide injunction.

Under the new policy, "judges would be assigned through a district-wide random selection process." This means that plaintiffs who file in a single-judge courthouse (like Judge Matthew Kacsmaryk's court in Amarillo, Texas) won't be assured of getting that judge; instead, they might get any other judge in the district.

In announcing the policy, Judge Robert J. Conrad, Jr., the secretary of the Conference, said, "The random case-assignment policy deters judge-shopping and the assignment of cases based on the perceived merits or abilities of a particular judge. It promotes the impartiality of proceedings and bolsters public confidence in the federal Judiciary."

March 12, 2024 in News | Permalink | Comments (0)

Texas Law Requiring Parental Notice and Consent for Contraception Not Preempted by Title X

The Fifth Circuit ruled today that Title X does not preempt a Texas law that requires parental notice and consent when a child tries to access contraceptives.

The ruling leaves the Texas law on the books, but also leaves open the question whether a federal regulation is valid and may preempt it.

The case, Deanda v. Becerra, arose when a father claimed that Texas law gave him the right to consent before his minor daughters obtained contraceptives, and that the Secretary unlawfully administered Title X by funding grantees who provide contraception to minors without parental notification and consent. The government argued that Title X preempted Texas law.

The Fifth Circuit disagreed. The court noted that Title X says, "To the extent practical, entities which receive grants or contracts [to provide contraception] shall encourage family participation in projects assisted under this subsection." The court said that there's "no real conflict" between that provision and Texas law:

The federal text plainly conveys the overarching goal of encouraging family participation in adolescents' family planning decisions. The Texas law pursues the same goal through more specific means: requiring parental consent before minors obtain contraceptives. Those objectives reinforce each other. As Deanda argues, Title X establishes a "floor" for grantees' participation (encouraging family participation), and Texas law establishes a specific means of achieving that goal (obtaining parents' consent). So, far from undermining Title X's purposes, Texas law concretely furthers them.

But there's a hitch. After Deanda sued, HHS implemented a regulation that prohibits Title X projects from "requir[ing] consent of parents or guardians for the provision of services to minors." (The regulation codifies long-standing HHS practice.) The regulation, if valid, would independently preempt Texas law. The district court vacated the reg, but the Fifth Circuit reversed that portion of the ruling, noting that Deanda never challenged the reg, and the district court never assessed it under the APA. (That's not surprising, because HHS issued the reg after Deanda sued.)

The upshot: the court says that Title X does not preempt Texas law, but leaves opens the question whether the HHS reg does. Both the Texas law and the HHS reg stay on the books, awaiting the next challenge.

March 12, 2024 in Cases and Case Materials, Federalism, News, Opinion Analysis, Preemption | Permalink | Comments (0)

Thursday, March 7, 2024

Second Circuit Says Organization Must Identify Harmed Members to Challenge Corporate Diversity Program

The Second Circuit ruled this week that a membership organization lacked standing to challenge a corporate diversity program when it failed to disclose the names of its allegedly harmed members, even to the court. The ruling ends the case, although the organization could refile and name names.

The case arose when Do No Harm, a membership organization, sued Pfizer over the corporation's Breakthrough Fellowship Program. The Program is designed "to advance students and early career colleagues of Black/African American, Latino/Hispanic, and Native American descent." Do No Harm argued that the Program excludes white and Asian-American applicants in violation of Title VI, among other things, and sought a preliminary injunction.

But there was a problem: Do No Harm didn't provide the names of its members who were allegedly harmed, even to the court in camera.

The district court held that Do No Harm therefore lacked standing and dismissed the case. The Second Circuit affirmed.

The court ruled that an organization, in order to establish standing on behalf of its members, must name the allegedly harmed members, at least to the court (even if not in not in the public filings). "[A] requirement that a plaintiff association seeking to establish standing on the basis of injuries to its members identify at least one injured member by name best aligns with Supreme Court precedent, including [Summers v. Earth Island Institute], is most consistent with the principles underlying organizational standing, and is bolstered by the conclusions of numerous other courts."

The court went on to affirm the district court's dismissal of the case (and not merely deny the plaintiff's motion for a preliminary injunction). Although it recognized that the issue has two sides (deny the motion, or dismiss the case entirely), the court definitely came down on the dismissal side: "as a general matter, when a court determines it lacks subject matter jurisdiction, it cannot consider the merits of the preliminary injunction motion and should dismiss the action in its entirety."

March 7, 2024 in Cases and Case Materials, Courts and Judging, Jurisdiction of Federal Courts, News, Standing | Permalink | Comments (0)

Wednesday, March 6, 2024

District Court Rules Minority Business Development Agency's Racial Presumptions Unconstitutional

Judge Mark Pittman (N.D. Tex.) ruled today that the MBDA's racial presumptions violate equal protection and permanently enjoined the Agency from using them. (The court previously entered a preliminary injunction.)

The case, Nuziard v. MBDA, tests the MBDA's presumption that members of certain identified racial groups qualify as "socially or economically disadvantaged" under the MBDA Act. Importantly, the Act doesn't say that members of other groups don't qualify for MBDA services and assistance; but it says that only members of the identified racial groups presumptively do.

The court ruled that this violates equal protection. Applying strict scrutiny, the court first acknowledged that the government had a compelling interest in remedying past discrimination in government contracting:

In sum, the record shows several examples of historic discrimination in which the government participated. Taken alone, that wouldn't be enough. The record also shows statistical analyses and disparity studies that raise an inference of government-linked discrimination. Taken alone, that wouldn't be enough, either. But combining the concrete examples with the robust empirics, the Court finds remedying past discrimination in government contracting is a compelling governmental interest.

But the court went on to rule that the presumptions weren't narrowly tailored to meet that interest. The court said that the racial categories are imprecise, that they're based on stereotypes, that there's no endpoint to their use, and that the MBDA has other ways to remedy the government's past discrimination.

March 6, 2024 in Cases and Case Materials, Equal Protection, News, Opinion Analysis | Permalink | Comments (0)

Eleventh Circuit Strikes Florida's "Anti-W.O.K.E." Act

The Eleventh Circuit this week ruled that the workplace-training ban in Florida's "Anti-W.O.K.E." Act violates the First Amendment. (The case didn't involve the public-school instruction ban, and that court had nothing to say about that part of the Act.) The court affirmed the district court's preliminary injunction against the Act, thus allowing employers in Florida to continue to host diversity training programs for their employees.

Florida's Act prohibits employers from subjecting "any individual, as a condition of employment" to "training, instruction, or any other required activity that espouses, promotes, advances, inculcates, or compels" specified topics and viewpoints about race. Those topics and viewpoints include positions like "Members of one race, color, sex, or national origin are morally superior to members of another race, color, sex, or national origin" and "An individual, by virtue of his or her race, color, sex, or national origin, is inherently racist, sexist, or oppressive, whether consciously or not."

The Eleventh Circuit ruled that the Act constituted impermissible content and viewpoint discrimination, and that the state failed to demonstrate that it satisfied strict scrutiny. In short, "Florida has no compelling interest in creating a per se rule that some speech, regardless of its context or the effect it has on the listener, is offensive and discriminatory." Moreover, even if the state had a compelling interest, the Act's "breadth and scope would doom it."

Florida argued that the Act regulated conduct, not speech. But the court had none of it. "Under Florida's proposed standard, a government could ban riding on a parade float if it did not agree with the message on the banner. The government could ban pulling chairs into a circle for book clubs discussing disfavored books. And so on. The First Amendment is not so easily neutered."

March 6, 2024 in Cases and Case Materials, First Amendment, News, Speech | Permalink | Comments (0)

Wednesday, January 10, 2024

Con Law Experts Oppose Mayorkas Impeachment

A group of con law experts wrote to House Speaker Mike Johnson and House Homeland Security Chairman Mark Green that there's no constitutional justification for impeaching Secretary of Homeland Security Alejandro Mayorkas. Here's the gist:

Simply put, the Constitution forbids impeachment based on policy disagreements between the House and the Executive Branch, no matter how intense or high stakes those differences of opinion.

Yet that is exactly what House Republicans appear poised to undertake. The charges they have publicly described come nowhere close to meeting the constitutional threshold for impeachment. Their proposed grounds for impeaching Secretary Mayorkas are the stuff of ordinary (albeit impassioned) policy disagreement in the field of immigration enforcement. If allegations like this were sufficient to justify impeachment, the separation of powers would be permanently destabilized. It is telling that there is absolutely no historical precedent for the impeachment charges that House Republicans have articulated. To the contrary, on the rare occasions that Members of the House have proposed impeaching executive officials for their handling of immigration matters, the House has properly retreated from that grave step.

January 10, 2024 in Congressional Authority, News, Separation of Powers | Permalink | Comments (0)

Tuesday, October 3, 2023

Court to Consider ADA Tester Standing

The Supreme Court will hear oral arguments on Wednesday in a case testing whether a civil-rights tester has standing to sue a hotel for violating the ADA. Here's my preview, from the Preview of United States Supreme Court Cases (with permission):


Does an ADA tester have standing to sue a hotel for failing to provide information about the accessibility of its rooms on its online reservation system and on third-party hotel-reservation websites?


Deborah Laufer is a disabled person under the ADA: she is visually impaired; she has limited use of her hands; and she uses a wheelchair or cane to get around. In order to stay in a hotel, she requires certain accommodations. As a result, in order to plan travel, she needs to know whether hotels offer certain accommodations.

Laufer is also an ADA “tester.” This means that she researches and tests whether covered entities are complying with the ADA. In particular, Laufer tests whether hotels comply with the ADA’s requirement that places of “public accommodation” provide “reasonable modifications” to their facilities in order to accommodate individuals with disabilities. More particularly, Laufer tests whether hotels comply with the ADA’s Reservation Rule. That Rule, promulgated by the Attorney General pursuant to authority under the ADA, requires hotels to “[i]dentify and describe [their] accessible features . . . in enough detail to reasonably permit individuals with disabilities to assess independently whether a given hotel or guest room meets his or her accessibility needs.” 28 C.F.R. § 36.302(e)(1). As relevant here, the Rule requires hotels to identify and describe these features on their own online reservation systems and on third-party online reservation websites.

Laufer discovered that Acheson Hotels, which operated the Coast Village Inn and Cottages in Maine, did not identify whether it offered accessible rooms or the option of booking an accessible room. Laufer found this information lacking on Acheson Hotels’ reservation website “[o]n multiple occasions before filing suit.” She also found it lacking on third-party reservation websites that Acheson used.

Laufer sued Acheson for injunctive relief. (The ADA authorizes individuals to sue for violations of the Reservation Rule for injunctive and declaratory relief (which apply to alleged future harms), but not for monetary damages (which are backward-looking harms, or harms that already occurred).) She asked the court to order Acheson to modify its online reservation services to comply with the Reservation Rule. She also asked for attorney’s fees. She later amended her complaint to allege that she viewed Acheson’s reservation systems not only as a tester, but also because she “had plans to drive from Florida to Maine” to meet her sister and take her granddaughter to “tourist attractions, points of interest, [and] educational and historical sites.” She alleged that Acheson’s online reservation system “infringe[d] [her] right to travel free of discrimination,” “deprive[d] her of the information required to make meaningful choices for travel,” caused her to suffer “frustration and humiliation,” contributed to her “sense of isolation and segregation,” and deprived her of “the full and equal enjoyment” of Acheson’s services. She also alleged that she intended to view Acheson’s online reservation system again in the future to test its compliance with the Reservation Rule.

The district court dismissed the case. The court ruled that Laufer lacked standing, because, as a tester, it was “implausible” that she planned to visit Maine and that she could not “allege concrete harm” without “a genuine plan to make a reservation.” Laufer appealed; she also disclaimed any intent to travel to Maine. The United States Court of Appeals for the First Circuit reversed, and this appeal followed.

After the Court agreed to hear the case, Laufer moved to voluntarily dismiss it. Laufer argued that her attorney in different ADA cases was disciplined in those cases, and she didn’t want the allegations of misconduct against that attorney to distract from her claims in this case. (That attorney had (and has) no involvement in Laufer’s case before the Court; and her current attorneys in this case have not represented her in other cases.) Laufer voluntarily dismissed her complaint in the district court, and she filed a Suggestion of Mootness in this Court. As of this writing, the case is still on the docket and set for oral argument.


Under Article III of the Constitution, a plaintiff, in order to have standing to sue in federal court, must demonstrate (1) that they suffered a concrete and personal injury (2) that was caused by the defendant’s challenged conduct and (3) that is likely to be redressed by a favorable court ruling. This case focuses on the first part, injury, and, in particular, whether a tester can assert a sufficient injury for standing.

The Supreme Court held in 1982, in Havens Realty Corp. v. Coleman, that testers had standing to challenge a landlord’s racial discrimination in violation of the Fair Housing Act. 455 U.S. 363 (1982). In that case, Havens Realty told a Black tester that they had no apartments available. But they told a White tester that they did. Despite the fact that the testers never intended to rent a unit, the Court specifically ruled that the Black tester had standing. The Court said that it didn’t matter that the tester didn’t intend to rent, so long as the tester asserted an “injury within the meaning of [the Act].”

Moreover, the Court has said that a plaintiff’s informational injury—a denial of information to which they have a legal right by federal statute—can, in some cases, suffice as a concrete injury to establish standing. For example, a plaintiff suffers a sufficient informational injury to sue to enforce government sunshine laws, like the Freedom of Information Act (FOIA). This holds without regard to how the plaintiff intends to use the information.

But more recently, the Court held that a defendant’s failure to comply with statutory procedures alone is insufficient by itself to establish standing. The court held in TransUnion LLC v. Ramirez, that courts must still “independently decide whether a plaintiff has suffered a concrete harm under Article III”—a harm resulting from the intangible or procedural injury—even if federal law authorizes a plaintiff to sue to enforce statutory procedures. 141 S. Ct. 2190 (2021).

This case tests how TransUnion and like cases square with Havens Realty and cases recognizing standing based on a plaintiff’s informational harm.

Acheson argues first that Laufer lacks standing based on an informational harm. Acheson says that TransUnion requires a plaintiff to show concrete harm as a result of failing to receive information, and that Laufer did not show such a harm. It claims that Laufer doesn’t plan to visit Acheson hotels, and therefore information on accessibility is useless to her. And it contends that Laufer’s interest in protecting the rights of other individuals with disabilities is insufficiently personal to her to establish her standing.

Acheson argues next that Havens Realty does not support Laufer’s standing. It claims that the FHA at the center of Havens Realty granted the plaintiffs in that case a private cause of action to vindicate an informational right that was personal to them. In contrast, it says that the ADA “does not personally entitle [Laufer] to information” or “grant her a private cause of action to vindicate an informational right.”

Acheson argues further that Laufer lacks standing based on cases where plaintiffs have standing to enforce government sunshine laws. Acheson says that unlike those plaintiffs, Laufer is suing a private business (not the government) for a generalized harm (not a particularized harm to her) and under a statute that does not guarantee access to information (instead, it only requires hotels to provide that information).

Moreover, Acheson argues that Laufer lacks standing based on future stigmatic injuries. It claims that Laufer’s intended future views of Acheson’s website (the basis of her future stigmatic injury) is self-inflicted. And it says that her anticipated emotional harm is insufficient to establish Article III standing.

In short, Acheson claims that Laufer, as a tester, is seeking simply to enforce the ADA. But Acheson says that this is the job of the executive branch, not private testers.

Finally, Acheson argues that Laufer’s claim is moot, because she now has the information she sought. (The Coast Village Inn now provides this information on its online reservation system. It says, “We are not equipped at this time to provide ADA compliant lodging,” but that it “tak[es] ADA compliance seriously and will be quick to respond to any accessibility questions . . . .”) It urges the Court to dismiss Laufer’s case and rule for Acheson.

Laufer counters that the Court should dismiss the case as moot pursuant to her Suggestion of Mootness. But if it doesn’t, Laufer argues that she has standing under Havens Realty. She contends that the ADA applies not only to hotels, but also to the services they provide, including their online reservation systems. And she says that she suffered sufficiently concrete harm based on “Acheson’s failure to provide equal access” to its system, even if she did not rent a room from Acheson.

Laufer argues next that she doesn’t have to intend to reserve a room to establish a concrete harm, as the government would have it. She maintains that her views of Acheson’s reservation system alone are enough, because she “personally encounter[ed] the discriminatory informational barrier to full and equal enjoyment of Acheson’s reservation services.” She says that there is no “functional difference between Ms. Laufer clicking through and reviewing Acheson’s online reservation system and a would-be reservation maker doing the same thing.”

Laufer argues that her harm was every bit as personal as the harm in Havens Realty. She illustrates the point with this suggestion: “if the plaintiff in Havens Realty had encountered a sign on the realtor’s door (or, these days, its website) stating, ‘We have no apartments available for rent if you are Black,’” the plaintiff would have “‘personally’ experienced discriminatory treatment [even though] the realtor ‘had no idea who she was.’”

Laufer argues that the Court has recognized “many times over the last four decades [that] Havens Realty was correctly decided.” In particular, she says that the Court has recognized the “core tenant” of Havens Realty that “discriminatory treatment” is a cognizable harm, because it “perpetuat[es] archaic and stereotypic notions” or “stigmatiz[es] members of the disfavored group as inherently inferior” and therefore “can cause serious non-economic injuries to those personally denied equal treatment solely because of their membership in the disfavored group.” Laufer claims that Acheson inflicted these harms on disabled persons who wished to use its online reservation service just as “if Acheson had a practice of ignoring the existence of wheelchair users who approach the reservation desk in its lobby.” She says that history and tradition reflect these dignitary harms, and that they were recognized under the common law.

Laufer argues that tester plaintiffs don’t “abuse” the ADA. She says that because the ADA does not provide for money damages, disabled individuals cannot afford to challenge access barriers. Moreover, she claims that injunctive relief against violators of the Reservation Rule is ineffectual for most travelers, because by the time a court enters an injunction, the travel is complete. Laufer contends that Acheson and its amici would not have to worry about the volume of litigation if they simply complied with the Reservation Rule. And she says that Acheson and its amici’s concerns about unethical litigation practices “are irrelevant to the constitutional standing question” and readily addressed through court sanctions and other disciplinary action.

Finally, Laufer argues that her case is not moot on the basis that The Coast Village Inn updated its website, as Acheson contends, and now provides the information that she seeks. Laufer says that this point goes to the merits (whether the Inn’s website complies with the Reservation Rule) and not mootness. In any event, she claims that the Inn could remove the required information as soon as the Court rules the case moot, and that the case therefore falls within the “voluntary cessation” exception to mootness. She also says that third-party hotel-reservation websites still do not include the required information.

The government weighs in to offer a middle position. On the one hand, the government contends that “[t]his Court has long held that an individual who suffers a violation of a statutory right to be free from discrimination has standing to sue.” But on the other hand, the government claims that Laufer is not such a person. The government says that the ADA, unlike the FHA in Havens Realty, does not “provide a freestanding right to information.” Instead, under the ADA, “an individual . . . who merely views a hotel’s online reservation services without intending to use the service to make or consider making a reservation lacks standing . . . .” The government asserts that Laufer merely viewed Acheson’s site—and that she didn’t intend to use it—and that she therefore lacks standing.


This case tests the practical effectiveness of ADA testers of the Reservation Rule. That’s important, because, as Laufer’s amici point out, testers are critical to effective enforcement of the ADA. Laufer herself “has found and challenged” “hundreds of violations . . . over the last five years.” If testers like Laufer lack standing to challenge hotels’ online reservation systems for violating the Reservation Rule, enforcement of the Rule will suffer, and hotels will lack a key incentive to comply. (As Laufer points out, the ADA only allows injunctive relief, not monetary damages. And as she argues, as a practical matter injunctive relief under the Reservation Rule cannot provide actual relief for most travelers.)

On the other hand, Acheson and its amici argue that tester standing for the Reservation Rule will lead to voluminous and vexatious litigation and attorney misbehavior, as evidenced by some of Laufer’s other ADA cases. (Remember: Laufer’s attorney in some of her other ADA cases was disciplined for his conduct in those cases. Laufer herself moved to dismiss her complaint in this case so that this behavior would not distract from it.) Laufer has an easy answer: hotels should simply comply. But Acheson’s concerns could still tip the balance for this Court.

While the case does not obviously implicate tester standing in other contexts, and while Havens Realty does not appear to be under direct attack, the case could nevertheless impact future tester standing outside the narrow context here. That’s because the Court could write an opinion on Reservation Rule tester standing, one way or the other, that may spill over into other tester standing questions.

October 3, 2023 in Cases and Case Materials, News, Standing | Permalink | Comments (0)

Monday, October 2, 2023

Court to Test CFPB's Funding Mechanism

The Supreme Court will hear oral arguments on Tuesday in CFPB v. Community Financial Services Association, the case testing whether CFPB's funding mechanism violates the Appropriations Clause. Here's my preview, from the ABA Preview of United States Supreme Court Cases (with permission):


Does the CFPB’s funding mechanism violate the Appropriations Clause, and, if so, was the Fifth Circuit right to vacate the Payday Lending Rule?


In 2010, in response to the 2008 economic crisis, Congress enacted the Dodd-Frank Wall Street Reform and Consumer Protection Act. Among many other things, the Act created the Consumer Financial Protection Bureau (CFPB) and vested it with authority to enforce over 18 federal statutes that were previously overseen by seven different agencies. Under the Act, the CFPB is an “independent bureau” within the Federal Reserve System.

In contrast to most federal agencies, which receive direct annual appropriations from Congress, the CFPB receives its funding directly from the Federal Reserve. Each year, the CFPB asks the Federal Reserve for funding in an amount up to 12 percent of the Federal Reserve’s operating expenses. The Federal Reserve, in turn, generates its budget through the operations of the Federal Reserve Banks. The Banks “buy and sell bonds and securities, receive fees for services provided to banks, credit unions and other depository institutions, and generate interest on loans to depository institutions.”

As part of the Act, Congress specified that the funds transferred to the CFPB “shall not be subject to review by” the House and Senate Appropriations Committees. But at the same time, the CFPB director must submit regular reports to and appear before other congressional committees to “justif[y]” the CFPB’s “budget requests of the previous year.” 12 U.S.C. § 5496(c)(2). Moreover, the Comptroller General (a congressional officer) must conduct annual audits of the CFPB and submit reports to Congress.

This unique funding mechanism is designed to help ensure that the CFPB can operate independently of political influences.

In 2017, the CPFB issued a final rule entitled “Payday, Vehicle Title, and Certain High-Cost Installment Loans” (the Payday Lending Rule). The Rule came in two parts. The first part prohibited lenders from making payday loans “without reasonably determining that consumers have the ability to repay the loans according to their terms.” 12 C.F.R. § 1041.4 (2018). (This portion of the Rule is called “the Underwriting Provision.”) The second part limited a lender’s ability to collect repayments through a borrower’s preauthorized account access. In particular, it prohibited lenders from trying to withdraw payments for loans from a borrower’s account after two consecutive withdrawal attempts failed for lack of sufficient funds. 12 C.F.R. § 1041.7. (This portion of the Rule is called “the Payment Provision.”) The CFPB later rescinded the Underwriting Provision, but ratified the Payment Provision and left it intact.

Two associations of companies regulated by the Payday Lending Rule sued the CPFB, arguing that the Payments Provision violated the Administrative Procedure Act and that it was invalid because the CFPB’s funding mechanism itself was invalid under several constitutional principles and provisions, including the Appropriations Clause. (In other words, because the CFPB was invalid, it’s Rule was invalid.) The district court ruled against the plaintiffs on all counts. The United States Court of Appeals for the Fifth Circuit reversed on the Appropriations Clause and vacated the Payday Lending Rule. (The Fifth Circuit ruled for the CFPB on the other counts.) This appeal followed.


As a general matter, Congress has the power to appropriate and spend federal funds. The Appropriations Clause, in Article I, Section 9, Clause 7 of the Constitution, says, “No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law . . . .” This case tests that Clause’s application to an executive agency that receives its funding from another executive agency, the Federal Reserve, which itself earns money through the operation of the Federal Reserve Banks (and not direct annual congressional appropriations).

The government argues first that the constitutional text, history, and precedent all support the CFPB’s funding mechanism. As to text, the government claims that the Appropriations Clause “does not limit Congress’s authority to determine the specificity, duration, and source of appropriations.” It contends that the Constitution’s “special restriction” on appropriations for the military—that “no Appropriation of Money” to raise and support an army “shall be for a longer Term than two Years,” Article I, Section 8, Clause 12—“confirms that the Constitution otherwise leaves it to Congress to determine the specificity, duration, and source of appropriations.” As to history, the government asserts that ever since the Founding the government has funded agencies through lump-sum appropriations and fees, assessments, investments, and similar mechanisms, particularly for financial regulatory agencies. As to precedent, the government says that “other than the Fifth Circuit below, no court has ever held that an Act of Congress violated the Appropriations Clause.”

The government argues next that the plaintiffs and the Fifth Circuit “fail[ed] to grapple with” these sources. The government contends that the plaintiffs and the Fifth Circuit rested their conclusion only on the argument that the CFPB’s funding mechanism is “unprecedented.” But the government says that this is wrong: “the CFPB’s funding mechanism accords with Congress’s longstanding practice of authorizing agencies to spend money indefinitely from sources other than annual appropriations.” Moreover, the government contends that the mechanism squares with statutes funding other financial regulators, like the Office of the Comptroller of the Currency, the Federal Deposit Insurance Corporation, and the Federal Reserve Board.

Finally, the government argues that even if the CFPB’s funding mechanism is flawed, the Fifth Circuit erred in vacating the Payday Lending Rule. Instead of vacating, the government says that the lower court should have “excised and severed any problematic provisions” in the CFPB’s funding mechanism, and ruled only that the CFPB couldn’t use those provisions to enforce the Payday Lending Rule going forward. (Under this approach, Congress could rewrite the CFPB’s funding mechanism, and the CFPB could then enforce the Payday Lending Rule.) The government claims that this would have been consistent with historical practices when courts rule that executive branch officials spend public money in excess of a congressional appropriation. And the government says that vacatur (as the Fifth Circuit ruled) could “inflict[] significant disruptions on the Nation’s economy and the consumers, financial institutions, regulators, and others who have reasonably relief on the CFPB’s past actions.”

The plaintiffs counter that the CFPB’s funding mechanism violates the Appropriations Clause, because Congress ceded away its power of the purse to the CFPB. “The CFPB’s funding . . . is not ‘drawn . . . in Consequence of Appropriations made by Law’ . . . but rather taken based on the agency’s say-so.” The plaintiffs contend that this is especially problematic, because it is hard-wired into federal law, and because this unique funding mechanism gives the CFPB both appropriations power and executive power—“combining the purse with the sword in the most dangerous manner.” The plaintiffs claim that the government offers no limit “that would prevent Congress from writing the President a blank check,” and that there there is no precedent in our history for such an agency. “Whether one looks back in time or down the slippery slope, the threat to separated powers and individual liberty is obvious.”

The plaintiffs argue next that the CFPB is wrong to say that text, history, and precedent support its funding mechanism. They claim that the CFPB’s funding mechanism isn’t a valid exercise of congressional authority; instead, “it is a void delegation of exclusive legislative power” to the executive branch. Moreover, the plaintiffs say, contrary to the CFPB’s examples, there is no precedent for “permanently eliminating all fiscal oversight from both the People’s Representatives and the People themselves.” The plaintiffs contend that the CFPB can only support its funding mechanism based on “out-of-context dicta” from the Court’s cases and deference to the political process. But as to deference, the plaintiffs assert that the CFPB’s structure itself has warped the political process.

Finally, the plaintiffs argue that the government is wrong to say that the Fifth Circuit shouldn’t have vacated the Payday Lending Rule. The plaintiffs claim that the government ignores the fact “that critical defects” in the CFPB’s funding mechanism “can be cured only through legislative revision.” Moreover, they say that the APA requires courts to “set aside” invalid rules. And they claim that the government is wrong to worry about any economic impacts of vacating the Payday Lending Rule, because the plaintiffs challenged the Rule before it went into effect.



Given the CFPB’s broad jurisdiction over consumer financial protection laws, and given the sweeping nature of the Fifth Circuit’s ruling, this case could have enormous consequences. Just since the Fifth Circuit vacated the Payday Lending Rule, defendants in several other CFPB enforcement cases have moved to dismiss based on that decision. If the Court affirms the Fifth Circuit’s ruling, we can expect all defendants in CFPB enforcement actions to move to dismiss. Such a ruling could effectively decimate the CFPB, unless Congress creates a new funding mechanism, and quickly. (To state the obvious: this seems unlikely in the current political climate.)

Such a result would sharply curtail federal consumer financial protection. It could also shock or destabilize the entire financial industry. That’s because regulated corporations adjusted their activities based on CFPB regulations. If those regulations go away, regulated corporations will re-adjust, affecting consumers and the financial markets as a whole. The government provided this example in its petition for certiorari: “If . . . regulations [making adjustments and exceptions to certain mortgage-related disclosure requirements] were vacated, mortgage lenders would have to immediately modify the disclosures they give millions of consumers each year, and borrowers could seek to rescind certain mortgage transactions that had relied on regulatory disclosure exceptions.” Moreover, because the Fifth Circuit vacated a past agency action, a ruling upholding it could threaten other past actions by the CFPB, as well.

Outside the CFPB, a ruling for the plaintiffs could threaten the funding mechanisms for certain other federal agencies that regulate financial markets, even the Federal Reserve. While funding mechanisms for other agencies are not before the Court—and while the plaintiffs do not appear to challenge them in this case—a Court ruling that strikes the CFPB funding mechanism could reach downstream to other federal agencies in future cases.

This is not the first time that the CFPB’s structure has come before the Court. Just three years ago, the Court ruled that the Bureau’s structure—in particular, its single director, who could be fired by the President only for cause—impermissibly interfered with the president’s power as chief executive. Seila Law LLC v. Consumer Financial Protection Bureau, 140 S. Ct. 2183 (2020). (The CFPB director’s “for cause” protection was another way that Congress sought to insulate the CFPB from political influences.) Moreover, this case and Seila Law are part of a larger trend by litigants and the Court to restrict the power of federal administrative agencies. (Indeed, there’s another important case on the Court’s docket this Term, Loper Bright Enterprises v. Raimondo, not yet set for argument, which could limit agencies’ discretion to interpret and apply federal law.)

That said, this move—vacating a CFPB regulation based on the Bureau’s funding mechanism—may be a bridge too far for this Court. In addition to the reasons described above, I’ll add this: The Fifth Circuit’s ruling is, in fact, an extreme outlier for both its reasoning and its result. The D.C. Circuit and at least six district courts—every other court that considered the issue—ruled the other way.

Still, we’ve seen the Roberts Court in a variety of cases move aggressively to alter existing law; to effect significant political, social, economic, and environmental change; and to upset settled expectations in politics, the markets, and society. A ruling for the plaintiffs—based on a full-throated endorsement of the Fifth Circuit’s ruling, or based on some other more modest approach—shouldn’t be a surprise.

October 2, 2023 in Cases and Case Materials, Congressional Authority, News, Separation of Powers | Permalink | Comments (0)

Friday, September 8, 2023

Fifth Circuit Temporarily Stays Order on Abbott's Rio Grande Barrier

The Fifth Circuit temporarily stayed an earlier order by a district court that required Texas Governor Greg Abbott to remove the Rio Grande border barrier. The brief appellate court order didn't say anything about the merits. The ruling means that the border barrier stays in place pending further litigation.

September 8, 2023 in Cases and Case Materials, Courts and Judging, Federalism | Permalink | Comments (0)

Thursday, September 7, 2023

Court Says Texas's Rio Grande Barrier Violates Federal Law

A federal court ruled that Texas Governor Greg Abbott's border barrier in the Rio Grande likely violates the federal Rivers and Harbors Appropriation Act of 1899. The court ordered the state to reposition the barrier by September 15 pending the outcome of the case. Texas is appealing.

The court said that the barrier is either a "boom" or "other structure" in the Rio Grande, and therefore violated the RHA, which prohibits erecting such things that obstruct the navigable waters of the U.S. without the federal government's permission. (The state argued that the Rio Grande isn't navigable where the barrier is located. The court, in a lengthy discussion, rejected that argument.)

More interestingly, the court rejected the state's argument that the barrier was authorized by the Constitution's Self-Defense Clause in Article I, Section 10, Clause 3. That provision says that "[n]o State shall, without the Consent of Congress . . . engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay." The court said that it's the federal government's job (not the states') to determine when there's an "invasion," and that it's not a job for the federal courts.

In response to the state's claim that the Clause allows Governor Abbott to "engage in War" whenever he determines that there's an invasion, the court noted the Governor's power to wage war would be "subject to no oversight" and "would give the Governor of Texas more power than is possessed by the President of the United States without authorization from Congress." The court called the claim "breathtaking."

September 7, 2023 in Cases and Case Materials, Federalism | Permalink | Comments (0)